IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 27 of 1999 Date of Decision : 7.5.2010. State of Himachal Pradesh …Appellants. Versus Chaman Lal and others. . …Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the appellant : Mr. P.K.Sharma, Addl. A.G. with Mr. R.P.Singh, DAG. For the Respondents : Mr. Dinesh Thakur, vice Mr. Rakesh Jaswal, Advocate. Kuldip Singh, Judge (Oral) The State has come in appeal against the judgment dated 23.7.1998 passed by the learned Additional Sessions Judge-1, Kangra at Dharamshala in Sessions Case No. 33/9/97 acquitting the respondents for offence punishable under Sections 302, 201, 34 and 404 IPC against respondent No.1, under Section 201 read with Section 34 IPC against respondents No.2 and 3. 2. The prosecution case against respondent No.1 is that on 27.12.1996 in the evening he committed murder of Bado Devi aged 55 years and in furtherance of Common intention with co-accused ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondents No.2 and 3 removed her dead body to a lonely place with an intention of screening the said act from punishment. The respondent No.1 had dishonestly mis-appropriated and converted to his own use one pair of ear rings, one nose pin both of gold and one silver chain knowing that such property was in possession of Bado Devi deceased at the time of her death. 3. The further relevant facts which led to the prosecution of the respondents are that Bado Devi deceased alongwith her younger daughter PW-2 Neelam Kumari was residing in village Nohra. PW-3 Surjan Ram husband of Bado Devi was serving as helper at Ludhiana. The deceased had two sons and three daughters. The sons were serving at Delhi and the elder two daughters were married and residing in the house of their inlaws. PW-2 Neelam Kumari was residing with Bado Devi. PW-2 on 25.12.1996 had accompanied her elder sister PW-5 Pawna to the house of their sister Veena Devi, Bado Devi deceased alone was in the house. 4. On 28.12.1996 at about 9/10 A.M. PW-2 Neelam Kumari and PW-5 Pawna Devi returned to their house, PW-6 Swaru Ram met them on the way and asked them about the whereabouts of their mother. The two sisters reached home and found their mother Bado Devi missing. They searched her but she was not found anywhere. Manik Ram father of respondent No.1 reported the matter at Police Station, Baijnath vide Rapat Roznamcha Ex.PW-10/A about the missing of Bado Devi in which he narrated the circumstances indicating that Bado Devi was missing. 3 5. On the basis of Ex.PW-10/A, PW-13 Dhian Chand, A.S.I. at about 5.00 p.m. on 29.12.1996 left for village Nohra and reached there at about 6.30 p.m. He recorded the statement Ex.PW-2/B of PW-2 Neelam Kumari under Section 154 Cr.P.C. PW-2 disclosed that in November, 1996 demarcation of land took place in which land was found of her father and her father erected a hedge over the same. At that time respondent No.1 had come on the spot and threatened to remove the hedge and proclaimed that a murder would take place in the land due to which one would go to jail and other would go to crematorium. PW-2 further stated that her mother had refused to give any land to respondent No.1. She suspected the foul play of respondent No.1 in the missing of her mother. On the basis of statement Ex.PW-2/B, FIR Ex.PW-16/A was recorded under Section 364 IPC. Dhian Chand prepared spot map Ex.PW-13/A. 6. The respondent No.1 was interrogated by PW-13 Dhian Chand. It has been alleged that respondent No.1 made a disclosure statement Ex.PW-4/A in presence of PW-4 Raj Kumar and Dharam Chand. Thereafter, the dead body of Bado Devi was recovered at the instance of respondent No.1 from ‘Mahalpat Chai Ka Bagicha’ which was taken into possession vide seizure memo Ex.PW-3/A. The site plan Ex.PW-13/C from where the dead body of Bado Devi was recovered was also prepared. The inquest report Ex.PW-1/B was prepared and dead body was sent for post-mortem examination and thereupon post mortem report Ex.PW-1/C was obtained in which doctor has opined the cause of death of Bado Devi as asphyxia due to strangulation. The spot map Ex.PW-13/B of the place where the dead 4 body was allegedly kept behind the house of Bado Devi on 27.12.1996 was also prepared. 7. PW-17 Shakti Chand Sub Inspector took over the investigation from PW-13 Dhian chand and it has been alleged that respondent No.1 made another disclosure statement Ex.PW-9/A regarding concealment of ear rings Ex.P-9, nose pin Ex.P-10 and silver chain Ex.P-8 of Bado Devi deceased and thereupon the said ornaments were taken into possession vide memo Ex.PW-2/A. It is the case of the prosecution that respondents No.2 and 3 have committed the offence under Sections 201 read with Section 34 IPC. The statement of PW-7 Kesri Devi was got recorded under Section 164 of the Code of Criminal Procedure. On the completion of investigation, challan was presented, the respondent No.1 was charged under Sections 302, 201, 34 and 404 IPC and charge under Sections 201, 34 IPC was framed against respondents No. 2 and 3. The prosecution has examined 17 witnesses in support of the prosecution case and has also placed on record the documentary evidence. The statements of respondents under Section 313 Cr.PC. were recorded but the respondents led no evidence in defence. The learned Additional Sessions Judge (1) acquitted the respondents on 23.7.1998 as noticed above, hence the State has come in appeal. 8. We have heard Mr. P.K.Sharma, learned Additional Advocate General and Mr. R.P.Singh, learned Assistant Advocate General appearing on behalf of the State and Mr. Dinesh Thakur, Advocate appearing on behalf of the respondents and have also gone through the record. It has been submitted on behalf of the appellant 5 that the prosecution has proved the case against the respondents on the basis of oral and documentary evidence and the learned Additional Sessions Judge has erred in acquitting the respondents. The learned counsel for the respondents has supported the impugned judgment. 9. PW-1 Dr. Karan Sharma, Medical Officer, Sub Divisional Hospital, Palampur conducted postmortem on the dead body of Bado Devi and issued post-mortem report Ex.PW-1/C. He has stated that time between post-mortem and death could be 48 hours. He has also stated that injuries found on the ear, face and nose could be caused by bite of any animal after death. PW-2 Neelam Kumari has stated that there was boundary dispute between Chaman Lal and their family. Chaman Lal got the land demarcated. During demarcation, their land was found in the possession of Chaman Lal. Thereafter, her father raised a hedge there which was objected to by Chaman Lal who threatened her father with dire consequences. This happened about 10/12 days prior to the death of her mother. She has stated that there are about 300 – 400 houses in the village Nohra. The dead body of her mother was brought home in the evening of 30.12.1996. She has stated that her father had gone to Ludhiana about 1 / 2 month prior to the death of her mother, even after the demarcation proceedings her father, Chaman Lal accused and his wife used to reside in one quarter. 10. PW-3 Surjan Ram is the husband of deceased Bado Devi. In cross-examination, he has stated that ‘Gufiya Nalla Chai Ka Bagicha’ is at a distance of about one kilometer from his house where the dead body of his wife was found. He has further stated that at the time of death of his wife, Chaman Lal was residing with him 6 but he had come home about one week prior to the death of his wife. There is a common foot path and a Pulli (bridge) on the way at a distance of 4/5 feet. The said path is a common path and leads to 5/7 villages. 11. PW-4 Raj Kumar is a witness of disclosure statement Ex.PW-4/A. He has stated that accused Chaman Lal led them to a tea garden and got the dead body of Bado Devi recovered. PW-5 Pawna Devi is the daughter of deceased Bado Devi, but her statement is not much material. She has stated that Chaman Lal used to give threats to kill her mother. PW-6 Swaru Ram is not a witness of material facts. PW-7 Kesri Devi is the sister-in-law (Devrani) of Bado Devi. She has stated that Chaman Lal accused is her nephew. She has stated that on 27th day about two years back during night she had come out to answer the call of nature. It was moonlit night. All the three respondents were carrying on some heavy bundle type weight and were going from the fields. They were going towards a Nala. Thereafter, on Saturday, she came to know that Bado Devi was missing from her house. She narrated the said episode after seven days to Raj Kumar, her statement was recorded before the Magistrate. She has stated that her statement was recorded on 9th day of the death of Bado Devi. 12. PW-8 Madan Lal is not a material witness. PW-9 Kanshi Ram is a witness of disclosure statement Ex.PW-9/A recorded under Section 27 of the Indian Evidence Act. He is also a witness to seizure memo Ex.PW-2/A taking into possession of Chain Ex.P-8, ear rings Ex.P-9 and nose pin Ex.P-10. PW-10 Subhash Chand has proved 7 Rapat Ex.PW-10/A. PW-11 Vipin Kumar has proved jamabandis Ex.PW-11/A, Ex.PW-11/B and Aks Ex.PW-11/C. PW-12 Ravinder nath has proved certified copy of demarcation report Ex.PW-12/A. 13. PW-13 Dhian Chand ASI partly investigated the case and has proved rapat Ex.PW-10/A, statement Ex.PW-2/B of PW-2 Neelam Kumari, spot map Ex.PW-13/A. He has stated that body of deceased was got recovered by Chaman Lal from the place ‘Mahalpat Chai Ka Bagicha’. He has proved site plan Ex.PW-13/C, inquest papers Ex.PW-1/B and spot map Ex.PW-13/B where the body was kept behind the house on 27.12.1996 night. PW-14 Shamsher Singh is a witness of recovery of papers R.C. Ex.PW-14/A, Insurance Certificate Ex.PW-14/B and an affidavit Ex.PW-14/C which were taken into possession vide seizure memo Ex.PW-14/D by the police which bears his signatures. PW-15 Ajay Kumar, Photographer has proved photographs Ex.P-11 to Ex.P-14 and negatives Ex.P-15 to Ex.P-18. PW-16 H.C. Tarlok Chand has stated that he had received rukka Ex.PW-2/B and thereupon FIR Ex.PW-16/A was recorded. PW-17 Shakti Chand Sub Inspector, another Investigating Officer has stated that disclosure statement Ex.PW-9/A was signed by Chaman lal and witnesses. He has prepared the spot map of place of recovery Ex. PW-17/A. The respondents have denied the prosecution case in their statements recorded under Section 313 Cr.P.C. 14. The perusal of evidence led by the prosecution indicates that there is no eye witness of the incident. The prosecution has prosecuted the respondents on suspicion on the ground that in demarcation some land of the husband of the deceased was found in 8 the possession of Chaman Lal where husband of the deceased erected a hedge which was not liked by Chaman lal and therefore, he killed Bado Devi and had thrown her body at the place from where it was allegedly recovered. The ornaments from the person of the deceased were taken away by Chaman lal. The respondents No.2 and 3 have been charged under Sections 201 read with Section 34 IPC. 15. PW-2 Neelam Kumari has admitted that Chaman Lal, his wife and her father used to reside in one quarter at Ludhiana. Her father had gone to Ludhiana about 1 / 2 month prior to the death of her mother. She has categorically stated that even after the demarcation proceedings, her father, Chaman Lal and his wife used to reside in one quarter. On the other hand, PW-2 Neelam Kumari has stated that after demarcation her father raised hedge which was objected by Chaman Lal and had threatened his father with dire consequences. The prosecution story regarding the motive of Chaman Lal to kill Bado Devi is not reliable. PW-2 has stated that demarcation took place about 10 – 12 days prior to death of her mother. She has also stated that after the demarcation Chaman Lal had been living with her father. In other words, the relations between the husband of the deceased and Chaman lal were not bad, rather those were cordial and only for that reason Chaman Lal had been living with the father of PW-2. 16. The prosecution has led no circumstantial evidence to show that at or about the time of death of Bado Devi, Chaman Lal or any respondents were seen in the house of deceased or the place where the deceased was allegedly strangulated. PW-1 has noticed 9 some injuries on the person of deceased. In cross-examination, he has stated that injuries found on the ear, face and nose could be caused by bite of any animal after death. In other words, the possibility of injuries found on the person of deceased on ear, face and nose can be due to bite of any animal after death. In these circumstances, the prosecution has not proved how the injuries found on the person of deceased at the time of post-mortem on ear, face and nose were caused. This creates suspicion in the prosecution story. 17. The prosecution is relying on the statement of PW-7 Kesri Devi, but if her statement is seen closely then statement of PW-7 does not connect the respondents with the commission of offence. She has stated that all the three respondents were carrying some heavy bundle type weight and were going from the fields. She has also stated that she narrated this fact to Raj Kumar after seven days. In case PW-7 had noticed some suspicious movement of the respondents on the relevant night then her conduct of not disclosing this fact to others for seven days creates suspicion. In any case, even if the statement of PW-7 Kesri Devi is accepted, it does not connect the respondents with the commission of offence. 18. The prosecution is relying on disclosure statement Ex. PW-4/A of Chaman Lal alleging therein that he had concealed the dead body on the back side of the house and then on the same night, at 12.30 p.m. he took the dead body to ‘Chai Bagicha Mahalpat’ and concealed in bushes. Ex.PW-3/A is the recovery memo of the dead body of Bado Devi which was recovered from ‘Chai Bagicha Mahalpat’ ahead of ‘Gufiya Nallah Bridge’ in the bushes. PW-4 Raj Kumar has 10 not stated in the court that the dead body of Bado Devi was recovered from the bushes. PW-3 Surjan Ram has stated that ‘Gufiya Nallah Chai Ka Bagicha’ is at a distance of about one kilometer from his house where the dead body of his wife was found. There is a common foot path and a pulli (bridge) on the way at a distance of 4/5 feet. He has not stated that the dead body of his wife was concealed in bushes and it was recovered from the bushes. 19. PW-13 Dhian Chand has stated that Chaman Lal during interrogation had disclosed that he had murdered Bado Devi on 27.12.1996 and dead body was kept in the backyard of her house. He has also disclosed that the dead body was kept concealed by him in the bushes at place ‘Mahalapat Chai Ka Bagicha’. The part of alleged statement of Chaman Lal that he had murdered Bado Devi is inadmissible in evidence. However, it emerges from the statement of PW-13 that Chaman lal had kept the dead body in the backyard of the house of deceased but PW-13 has not stated that Chaman Lal had stated that he carried the dead body of Bado Devi lateron from the backyard of her house and concealed the dead body at ‘Mahalpat Chai Ka Bagicha’. PW-3 himself has stated that dead body was recovered from place at a distance of one kilometer from his house. It has also come in the statement of PW-2 that there are about 300 – 400 houses in village Nohra. PW-3 has stated that said path is a common path and leads to 5 – 7 villages. In these circumstances perpetrators of crime after committing crime would not take the risk of carrying the dead body for one kilometer in a moonlit night when there is chance of meeting other persons on the way. The evidence led by the 11 prosecution regarding disclosure statements and recovery of dead body of Bado Devi does not inspire confidence, similar is the case with respect to alleged recovery of ornaments. 20. The learned Additional Sessions Judge after proper appreciation of material on record has recorded a finding of acquittal. The learned Additional Advocate General has not pointed out any specific material which has been ignored by the learned Additional Sessions Judge or the impugned judgment is based on irrelevant evidence. The respondents have been acquitted after appreciation of evidence and the view taken by the learned Additional Sessions Judge emerges from the evidence on record. It is settled law that in appeal against acquittal merely other view is possible is no ground for converting the acquittal into conviction. The perversity in the impugned judgment has not been shown or established. No ground for interference has been made out. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds are discharged. ( Kuldip Singh ), (Dev Darshan Sud), May 7, 2010. Judge. Judge. (GR)