1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 242/1997 Decided on: August 18, 2010 State of HP …Appellant. VERSUS Baldev Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Rajinder Dogra, Addl. AG For the respondent: Mr.Lovneesh Kanwar, Advocate R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under section 378(3) of Code of Criminal procedure in reference to the order dated 17.9.1996 passed by learned Additional Sessions Judge, Mandi District Mandi, HP in Sessions Trial No. 16 of 1996, thereby acquitting the respondent / accused for the offence under Section 302 of IPC. 2 In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. On 16.12.1995 FIR No. 267/95 was recorded on the statement of Roop Lal that his sister Achhari Devi was residing with her daughter-in-law Usha Devi in the house and on December 16,1995, in the morning, on hearing cries Whether the reporters of the local papers maybe allowed to see the judgment? 2 from the house of Usha Devi, he went there and Usha told him that on the previous night, she slept with her daughter in the room while her mother-in-law Achhari Devi slept on the upper floor and at about 10/11 in the night, she heard cry of Achhari Devi and, thereafter, she noticed that some persons were standing outside her room and trying to open the door and in the morning, she found the door closed from outside and she cried for help, on which Sarla Devi came, who opened the door and then she along with Sarla went and found Achhari Devi lying dead in the pond of blood and on this report, investigation was carried out and after necessary investigation, it was found that accused Baldev Singh is liable to be prosecution for the offence punishable under Section 302 of IPC. 3. In order to prove its case, prosecution has examined as many as sixteen witnesses, whereas the respondent/accused to his statement under section 313 of Cr.P.C has denied the prosecution case. 4. PW-1 Usha Devi has stated that she is having two children, one son aged 8 years and a daughter aged 7 years and she was residing with her mother-in-law Achhari Devi while her brother-in- law Tulsi Ram was residing separately and her husband was working as a driver in Rajasthan. Jai Singh died about two years back and after his death, his widow Durgi Devi went towards Awah Devi and Baldev accused along with his brother Prithvi took forcible possession of the land of Jai Singh, her mother in law used to tell Baldev accused and his brother that we were having share in the land of Jai Singh, but they refused to give any share. On December 15,1995, her mother in law Achhari Devi slept on the upper floor in the verandah while this witness 3 along with her daughter slept in the room on the ground floor and at about 10/11 in the night, she heard cry of her mother in law on which she called her mother in law from the room, but no reply was received. In the meantime, somebody knocked at the door of her room and told that her mother in law was killed and in the same way her daughter would be killed and then she would be killed. Somebody from outside told her that all the ornaments and money be given out, on w which she told that the ornaments were at her parents house and then that person told her that ornaments should be brought within one or two days and that they would be coming again and would murder them in the same way in which her mother in law was murdered. They also told that they had came from Punjab and had pistol with them and that one person was speaking from outside the room she put the ‘sofa’ in front of the door of the room and in the morning when she tried to open the door, it was found bolted from outside. She called Shekhar from the window of the room loudly on which mother of Shekhar namely Sheela alias Sarla came. She opened the door from outside and the witness fell on her shoulder. Some other persons also came therefrom the village and she narrated the entire incident that happened in the night and all the persons went up and found that there was blood and her mother in law was dead and blood was lying all around. Roop Lal, brother of her mother in law went to lodge the report with the police. She wrote letter regarding forcible possession by Baldev etc. to her husband Ex PA and envelope of the same is Ex PB. She did not come to know as to who was speaking on that night. Police came and the number of people were called and their voices were heard by her and voice was found somewhat similar to the voice of Baldev accused. 4 5. PW-2 Bhagi Rath, joined the police along with Roop Lal witness. PW-3 Diwan Chand, PW-4 Sarla Devi, PW-5 Kamla Devi, PW- 6 Partap Singh, PW-7 Vijay Kumar, PW-8 Shiv Singh, PW-9 Paras Ram, PW-10 Karam Chand, PW-11, Rajinder Pal, PW-13, Roop Lal, PW-14 Sher Singh are not conclusive in support of prosecution case, except PW 12, who stated that there was some land dispute in the family of accused and Achhari Devi. 6. PW-15, Dr. Vishab Chander, who conducted postmortem examination of the deceased Achhari Devi has stated that deceased Achhari Devi died as a result of excessive bleeding from ante-mortem incised wounds leading to cardio respiratory arrest as per report Ex PP. 7. PW 16 Gulzar Mohammed has carried out investigation and has made endeavour to support the prosecution case. 8. On the analysis of the prosecution witnesses and material on record, we notice that there is no direct evidence on record to prove that any person had seen the accused Baldev Singh going to the place of alleged murder around the time the murder was committed by him. Neither anybody has seen the accused Baldev Singh nor any prosecution witness has divulged so that he accused had given any blow of axe on deceased Achhari Devi. The weapon of offence, as per the prosecution case is an axe Ex P.12 which was recovered by the Investigating Officer PW-16 Gulzar Mohammad, blood stained, from the heap of sand lying in the verandah of Partap Chand. However, no finger prints were taken from axe nor finger prints were preserved nor finger prints were compared with the finger prints of Baldev Singh. The main evidence brought on record by the prosecution is twofold, namely: 5 (i) that the identification of voice was got done by the police and Usha Devi identified the voice of the accused Baldev Singh as similar to that which she heard immediately after the alleged occurrence on the night of December 15, 1995 and; (ii) that shirt and pant of accused Baldev Singh were blood stained having blood of deceased Achhari Devi. 9. We also notice that no identification of voice was got done through expert in the presence of any Executive Magistrate, Judicial Magistrate nor any person of the village namely Pradhan or Lambardar have been examined. Usha Devi PW-1 has stated that she heard the voice of Baldev Singh, which appears to be somewhat like that she heard on that night. On resemblance of that voice which PW-1 heard on the date of incident, more so, as Baldev Singh was visiting the house of PW-1, therefore, she could know the voice of Baldev Singh, in these circumstances, Baldev Singh cannot be said to be held guilty of murdering the victim. We also notice that even the Investigation Officer nor any other authority has stated that Baldev Singh was asked to give his voice for being identified by Usha Devi. As such, reliance on such endeavour is not legally permissible in support of the case of the prosecution. 10. Now, in view of the FSL report, the blood found on the shirt, pant and shoes of Baldev Singh was not compared with the blood of Achhari Devi, deceased and those were not co relatable and the finger prints on the weapon of offence have not to be proved to that of accused Baldev Sing. 11. On analysis of the prosecution witnesses and material on record, learned Addl. Sessions Judge has rightly come to the conclusion that the prosecution has failed to bring home guilt to the 6 accused. In our considered view, prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 12. Bail bonds, furnished by the respondent/accused, are hereby discharged. ( R.B.Misra ), J. 18th August, 2010 ( V.K.Sharma ), J. (sl) 7