IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 663 of 1996. Decided on: 29.04.2010. __________________________________________________ State of Himachal Pradesh. … Appellant. Versus Ram Kali alias Satya and others. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General. For the Respondents : Mr. Vinay Thakur, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment, dated 30th May, 1996, delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No.22-S/7 of 1992 whereby the accused have been acquitted of having committed the offences punishable under Sections 302 read with Section 201 of Indian Penal Code. 2. The undisputed facts are that accused Ram Kali was married to deceased Durga Singh. This was her second marriage. She had one issue out of the previous marriage and two children were born from the loins of deceased Durga Singh. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 3. According to the prosecution, the relations between Durga Singh and Ram Kali had soured some time before the alleged occurrence. Thereafter, Ram Kali went back to her parental home and started residing there separately. 4. PW-8 Jai Singh, who is the real brother of deceased Durga Singh lodged a complaint with the police on 16.8.1990. In this complaint it was alleged that on 5.8.1990 Durga Singh left his house for the house of accused No.1, Ram Kali with the intention of bringing his wife back to the matrimonial home. Before going to the house of Ram Kali, Durga Singh met his sister, Smt. Fulma (PW-12) on the evening of 5.8.1990. Thereafter Durga Singh never met any member of his family and did not return home. Complainant Jai Singh searched for his brother. On 16.8.1990 he heard a rumour that one dead body had been recovered by the police from Kot Nallah on 11.8.1990. Thereafter, PW-8 Jai Singh accompanied by his nephew PW-1 Roshan Lal rushed to Police Station, Theog on 16.8.1990. PW-12 Smt. Fulma also accompanied them to the Police Station. The police officials showed one black sock Ex.P.1 to Fulma Devi, PW-12, sister of the deceased. She identified this sock to be that of deceased, Durga Singh. Thereafter, PW-1 Roshan Lal and PW-8 Jai Singh rushed to the house of accused No.1. They met accused No.5 Mansa Ram who informed them that accused No.1 alongwith three co- accused, i.e. accused No.2 to 4 had murdered Durga Singh on 5.8.1990 and had disposed of the dead body in Kot Nallah. Thereafter, PW-8 Jai Singh returned to Police Station on 18.8.1990 and instituted F.I.R. Ex.PW-8/A against the accused persons. - 3 - 5. It would be pertinent to mention here that after the dead body was recovered by the police from Kot Nallah, it was sent for postmortem which was conducted by PW-9 Dr. Ashok Chauhan alongwith Dr. Harindeer Jeet Singh Sekhon, PW-13. Since the body was totally decomposed, they could not opine about the cause of death of the person. The entire case of the prosecution is based on two circumstances. Firstly, that the deceased was last heard going to the house of his wife, Ram Kali, accused No.1; secondly, that Mansa Ram had made an extra judicial confession in which he had stated that the deceased had been murdered by the other co-accused and he had only helped them in disposing of the dead body of the deceased. 6. PW-12, Smt. Fulma is the sister of the deceased. She stated in Court that about three years earlier, the deceased had come to her house and told her that he had to take money from one Ramju. In the evening the deceased went to the house of accused Ram Kali. The deceased was wearing a black terry cot suit and was carrying a bag. She had further stated that the deceased was wearing black socks at that time. Next morning, when the deceased did not return home, her husband inquired about deceased Durga Singh through Shama. Ram Kali accused informed Shama that deceased Durga Singh is not at her house. Later one Kaplu came from her parental house in search of deceased Durga Singh and she came to know about the death of Durga Singh when police came. She could not say about the relations between accused No.1, Ram Kali and the deceased. She identified the sock Ex.P- 1 as the sock of the deceased. In cross-examination, she admitted that such black socks are freely available in the market and that the sock in - 4 - question, Ex.P-1 did not bear any special identification mark. Surprisingly, this witness does not state that her brother PW-8 Jai Singh or her nephew PW-1 Roshan Lal had visited her while searching for the deceased. She could have easily stated this fact if her brother and nephew had visited her. This is a glaring lacuna between her statement and the statements of PW-1 and PW-8. 7. PW-8, Jai Singh stated that after his brother Durga Singh did not come back for 6-7 days, he went in search of the deceased. He then went to the house of his sister Fulma, PW-12 and inquired about the whereabouts of Durga Singh. It was his sister who told him that Durga Singh had gone to the house of Ram Kali. This fact had not been stated by PW-12 Fulma. This makes the version of this witness doubtful. 8. PW-1 Roshan Lal gives an entirely different version. According to him, he had gone to the house of Fulma to inquire about the whereabouts of Durga Singh. She informed this witness that the deceased told her that he was going to visit his in-laws and also that he had to collect money from someone who owed money to the deceased for purchase of cauliflowers seeds. This witness also stated that Fulma told him that the deceased went to the house of Shama Nand. Then they visited the house of Shama Nand who told them that he does not know about the whereabouts of the deceased. Shama Nand also told him that deceased Durga Singh met him and told Shama Nand that he (deceased) is going to the house of his in-laws. Shama Nand was examined as PW-5 and according to him, Durga Singh after visiting the house of his sister came to his house and told Shama Nand that he (deceased) was going to village Bhani where he had to collect some - 5 - money. In the evening when the deceased came back, he again met Shama Nand at village Bhailayan/Jatog and told him that he had collected the money and was now gong to the house of his in-laws. 9. At the outset, we may discuss the evidence relating to the identification of the dead body found at Kot Nallah. Other than the black sock, there is nothing to prove that the dead body was that of Durga Singh. Admittedly, the dead body was cremated before the relatives even came to the police station. No photographs of the dead body were taken. The police or the doctors did not note down any special identification marks on the dead body which could be used to identify the dead body. The only evidence led to show that the dead body was of Durga Singh is the statement of Fulma PW-12 who identified the sock Ex.P-1 to be that of her brother Durga Singh. 10. Admittedly, Durga Singh went to his sister’s house for a short duration. He did not even stay with his sister. Therefore, how could she identify the sock when there is no special identification mark on this sock. The witness, PW-12 Fulma admitted that these socks are freely available in the market. Therefore, it cannot be said with certainty that the dead body was that of Durga Singh. 11. Even with regard to his theory of last seen, in fact, no person saw the deceased in the house of his in-laws. Even if we believe the versions of PW-12 and PW-5, it only shows that the deceased intended to visit his in-laws. He could have easily changed his mind on the way. Further, there are sufficient reasons not to rely upon the statements of these witnesses in view of the contradictions in their statements. As pointed out above, PW-1, PW-8 and PW-12, have all given different versions in - 6 - this regard. PW-12 Fulma does not even say a word that she talked to her brother or nephew. According to her, only one Kaplu had inquired from her about the whereabouts of Durga Singh. She did not name PW- 1 Roshan Lal and PW-8 Jai Singh as the persons who made inquiry from her. According to PW-12, next morning her husband had inquired through Sada Nand as to where Durga Singh had gone. However, Sada Nand is totally silent on this aspect and according to his version; no inquiry was made from him by Fulma or her husband, Bhagat Ram who has since expired. Therefore, the first circumstance does not stand proved at all. 12. Coming to the so-called extra judicial confession of Mansa Ram. The less said about it the better. This extra judicial confession is a self exculpatory confession wherein Mansa Ram has limited his role only to the disposal of the dead body and has put the entire burden of the crime on the other accused. When an extra judicial confession is self exculpatory, it cannot be relied upon. In this case the burden is on the prosecution to prove that the incident occurred in the manner mentioned in the extra judicial confession. 13. The manner in which this extra judicial confession has been made clearly shows that it is a concocted story. According to PW-1 Roshan Lal when they had met Fulma PW-12 and Sada Nand PW-5 on 16.8.1990, he and his uncle PW-8 Jai Singh decided to lodge a report with the police. On the way when they were going towards Theog, they met one Mohan Lal. He informed PW-1 Roshan Lal and PW-8 Jai Singh that deceased Durga Singh had already been murdered. Then Roshan Lal and Jai Singh asked Mohan Lal to accompany them to the police station. He - 7 - refused to do so, but stated that he will bring a person who knows every thing about the murder. Thereafter, Mohan Lal introduced PW-1 Roshan Lal to Mansa Ram, accused. Accused Mansa Ram told this witness that accused Ram Kali and Shama alias Sham Singh came to his house and asked him to accompany them to the house of Ram Kali as her husband had fallen ill. He went to her house and found that these persons had kept one dead body in a kilta. Mansa Ram was asked to lift the kilta. Thereafter Mansa Ram and Shama Nand lifted the kilta and carried it for 4 Kms. to Kot Nallah where they disposed of the dead body. Accused Begmoo also joined them in disposing of the body. According to this witness, Mansa Ram stated that Begmoo paid Rs.310/- each to him and accused Shama Nand for the disposal of the body. Thereafter PW-1 went to the police station alongwith PW-8 Jai Singh, Kedar Singh and Panu Ram etc. and then the report was lodged. It would not be out of place to mention here that when this witness was being examined, a parcel allegedly containing the sock could not be produced and his statement was deferred from 4.5.1995 to the next day, i.e. 5.5.1995, on which date the learned Public Prosecutor made a statement at Bar that the case property which the witness was called to identify is not traceable and could not be produced in the Court. 14. Mohan Lal has not been examined in the Court. PW-8 gives a totally different version as to how they met Mansa Ram. According to his version, when he and Roshan Lal decided to report the matter to the police and were going towards Theog, Mansa Ram met them. He does not say a word about meeting Mohan Lal on the way. Mansa Ram then told them the entire story as narrated above. Thereafter, this witness - 8 - went to Police Station, Theog and reported the matter to the police. It was during the course of recording his statement that the parcel of socks was opened and one of the socks, Ex.P-1 was identified as of the deceased by PW-12 Fulma. How did this parcel appear when earlier it was stated to be not traceable. 15. In cross-examinatin, this witness gives another version as to how they met Mansa Ram. In this version he stated that when they were going to lodge the report with the police, one Mansa Ram came running from behind and himself voluntarily told them the entire story. There is no explanation as to why Mansa Ram would disclose the facts to PW-1 and PW-8, who were admittedly not known to him prior to the said date. It is well settled law that normally a confession is made by an accused only to a person in whom he reposes confidence. If guilt was troubling Mansa Ram then he would have disclosed this fact to some family member or the Pradhan of his Panchayat, but would not have straight way gone to make the confession to the brother of the deceased. 16. The most damaging aspect of the case is that according to both PW-1 Roshan Lal and PW-8 Jai Singh, they met Mansa Ram on 16.8.1990. On this date itself they were told by Mansa Ram about what had happened. The F.I.R. was actually lodged on 18.8.1990 and the witness admitted that after Mansa Ram had disclosed this fact on 16.8.1990, for 1½ days they kept sitting at home. This makes the story virtually totally unbelievable. It cannot be believed that a brother and a nephew of a person whom they have been searching for all over and were going to the police station to report the matter would come back to - 9 - their houses after a confession was made to them that their brother/uncle has been murdered. 17. The police had also effected certain recoveries, i.e. recovery of kilta and bag. No evidence has been led that the bag actually belongs to the deceased. No body had identified this bag as belonging to the deceased. The recovery of the kilta is also meaningless since there is nothing to show that the dead body was carried in this kilta. 18. In view of the above discussion, we are of the considered view that the learned trial Court was justified in acquitting the accused. Accordingly, we find no merit in this appeal and the same is accordingly dismissed. Bail bonds furnished by the accused-respondents are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. April 29, 2010 (sck).