IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 364 of 1998. Decided on: 14.05.2010. ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Dhani Ram and another. … Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 For the Appellant : Mr. Rajinder Dogra, Additional Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Shrawan Dogra, Advocate with Mr. Umesh Kanwar, Advocate. Surjit Singh, J. (Oral): This appeal by the State under Section 378 of the Code of Criminal Procedure is directed against the judgment dated 30th March, 1998 of learned Additional Sessions Judge, Mandi, whereby respondents, Dhani Ram and Amar Singh, 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - who were charged with offences punishable under Sections 302 and 201 of Indian Penal Code, have been acquitted. 2. Case of the prosecution is that deceased Leeladhar was married to PW-15 Chinta Devi, daughter of respondent/accused Dhani Ram. In December, 1993 marriage of a son of Dhani Ram was solemnized. Deceased accompanied by Chinta Devi (PW-15) attended that marriage. He remained at the house of Dhani Ram upto 11.12.1993. He wanted to take his wife, Chinta Devi with him to the matrimonial home, but she did not accompany him. So he left the house of respondent all alone on 12.12.1993 towards his village Ropa. On the way, he went to the house of PW-2 Khem Chand, his wife’s sister’s husband and there he consumed liquor. When he was there, Chinta Devi (PW-15) came there accompanied by Khem Chand’s wife. Deceased again requested her to accompany him to the matrimonial home, but she refused. He had a quarrel with her. Chinta Devi then left for her father’s place in village Neda. Deceased allegedly followed her and quarreled with her on the way, where one Sham Lal intervened and got them separated. Chinta Devi then went to her father’s place, while deceased returned to the house of PW-2, Khem Chand. After taking his meals deceased insisted upon going to his in-laws’ place. He was provided a torch by PW-3 Malti Devi. Next morning, dead body of - 3 - Leeladhar was found in a Nullah. Torch was not there. Dead body was taken to the house of PW-1, Paras Ram, father of the deceased. Paras Ram was convinced by Dhani Ram, respondent No.1 and Amar Singh, respondent No.2 that it was a case of death by fall, upon which Paras Ram agreed for cremation of the dead body, without postmortem. 3. Later on, in the month of March, 1994, Paras Ram came to know that the belongings of his deceased son Leeladhar were missing. The belongings consisted of a pant, socks and some other items of the deceased. On 31.3.1994 when Tulsi Ram, S.H.O., Police Station, Karsog was present at Rest House, Nihri, Paras Ram (PW-1) went there and got his statement, Ex.P-A, recorded under Section 154 Cr.P.C. On the basis of this statement, case was registered against the accused, vide F.I.R. Ex.PW-14/A. From Nihri, S.H.O. proceeded to village Neda. He inspected the spot and questioned a number of residents of village Neda. Those persons included respondent Dhani Ram who allegedly made a statement leading to recovery of haversack Ex.P-2 containing pant Ex. P-3, socks Ex.P-4 and jerry cane Ex.P-5. These articles were identified to be those of deceased by Gian Chand (PW-8), brother of the deceased and by Paras Ram (PW-1), father of the deceased. 4. On completion of investigation, respondent Dhani Ram was challaned, under Section 302 of Indian Penal Code, while - 4 - the other respondent Amar Singh was challaned under Section 201 of Indian Penal Code. Trial Court charged the respondents accordingly. 5. Prosecution examined a number of witnesses, including PW-7 Moti Ram, a witness of alleged disclosure statement and recovery of haversack of the deceased and Tulsi Ram (PW-16), who proved the statement under Section 27 of the Evidence Act on record, which is Ex.P-C. 6. According to PW-7, Moti Ram, respondent Dhani Ram made the disclosure statement Ex.P-C at 4 p.m. at Rest House Nihri. Tulsi Ram (PW-16) stated that the disclosure statement was made by Dhani Ram, respondent No.1 at Nihri on 31st March, 1994. In cross-examination, he stated that he prepared site plan Ex.PW-16/A regarding the site of recovery of haversack and other belongings of the deceased on 31.3.1994. Site of recovery is in village Neda. Neda is at a distance of 72 Kms. from Police Station, Karsog. Nihri, where the statement of Paras Ram under Sectin 154 Cr.P.C. was recorded is at a distance of 50 Kms. from Police Station, Karsog. This fact suggests that distance between Nihri and Neda should not be less than 22 Kms. Statement under Section 154 Cr.P.C., Ex.P-A is purported to have been recorded at 1 p.m. After recording the statement, Tulsi Ram started recording zimnis at Nihri Rest House at 2.30 p.m. He recorded four pages of zimni at Nirhi Rest House before - 5 - proceeding to Neda. The zimni shows that on reaching Neda, he associated 12 residents of that village, including respondent Dhan Ram. That means Dhani Ram respondent was not available at Nihri on 31.3.1994 and that he was called and required to join the investigation only at Neda. If this is so, statement of PW-7 Moti Ram as also PW-16 Tulsi Ram, S.H.O. that statement under Section 27 of Evidence Act of Dhani Ram respondent was recorded at Nihri Rest House, cannot be believed. In any case zimnis show that respondent Dhani Ram was interrogated and his statement was recorded at Neda and not at Nihri, which fact belies the testimony of Tulsi Ram PW-16 and Moti Ram PW-7. 7. Zimnis further show that before respondent Dhani Ram was interrogated, statement under Section 161 Cr.P.C. at least of seven witnesses had been recorded. S.H.O., Tulsi Ram may not have started from Nihri before 3.30 p.m. because, as already noticed, he started recording zimnis at Nihri at 2.30 p.m. and wrote full four pages at that place. Neda is at a distance not less than 22 Kms. from Nihri. Conditions of roads in remote are not as good as in the cities in plains or the National Highway even in the hills. It must have taken at least 40-45 minutes to cover the distance from Nihri to Neda. On reaching Neda, S.H.O. called 12 persons from the village and recorded the statements of seven persons under Section 161 Cr.P.C. All this must have taken - 6 - not less than two hours. It was thereafter that the statement of respondent Dhani Ram was recorded, as per zimni. That means not only that the statements of Moti Ram, PW-7 and Tulsi Ram (PW-16) about the place where the disclosure statement was made by Dhani Ram, are untrue, but the time of recording the statement is also not true. In view of the above stated position, appeal is dismissed. (Surjit Singh), Judge. (Rajiv Sharma), Judge. May 14, 2010. (sck).