IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.40 of 1996 Decided on : September 10, 2009 State of H.P. …Appellant. Versus Onkar Singh and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 30th December, 1994, of learned Sessions Court, Una, whereby respondents Onkar Singh and Kishan Chand, who had been sent up for trial for offences, under Sections 201 and 202 of the Indian Penal Code, alongwith proclaimed offender Raghubir Singh, who was alleged to have committed the offence of murder, have been acquitted. 2. Prosecution case, as per evidence adduced by it during the course of trial, is like this. Deceased Neelam Kumari, daughter of PW-1 Satya Devi and PW-2 Kartar Singh, was married to proclaimed offender Raghubir Singh, in February, 1990. After the marriage, the deceased Whether reporters of the local papers may be allowed to see the judgment? …2… started living with proclaimed offender Raghubir Singh, at her in-laws’ village Ambehra in Una District. Raghubir Singh was allegedly having a keep, who lived at Delhi. On 1st July, 1991, Raghubir Singh wanted to go to Delhi, but the deceased opposed. Raghubir Singh then dropped the idea of going to Delhi, but brought a bottle of liquor and consumed the whole of it. Then he brought another bottle of liquor. Deceased Neelam Kumari objected to Raghubir Singh’s drinking excessively. That enraged him and he allegedly slapped the deceased and then pushed her with a great deal of force, as a result of which her head struck against the wall of the room and she sustained head injury, which proved fatal. 3. Parents of deceased Neelam Kumari were informed. After the arrival of the father and a cousin of the deceased and some other residents of their village, dead body was cremated. Accusation against the respondents is that they, being the Pradhan and the Nambardar of the village of proclaimed offender Raghubir Singh, did not report the matter to the police, even though Raghubir Singh (proclaimed offender) had confessed in their presence that he happened to slap and push the deceased, in the aforesaid manner. Respondents were also alleged to have destroyed the evidence by getting the dead body cremated, without postmortem. …3… 4. As already noticed, the respondents and proclaimed offender Raghubir Singh were challaned together. Raghubir Singh was charged with offences, under Sections 302 and 201 of the Indian Penal Code, while the present respondents were charged with offences, under Sections 201 and 202 of the Indian Penal Code. When most of the witnesses of the prosecution had been examined and only one witness remained to be examined, Raghubir Singh, who was on bail, absconded. Efforts were made to secure his presence, but to no avail. Ultimately, he was declared proclaimed offender on 25th November, 1994. Learned Sessions Judge then ordered the separation of the case against proclaimed offender Raghubir Singh from the trial against the present respondents and finally acquitted them (the respondents), vide judgment dated 30th December, 1994, holding that the evidence on record did not prove that Raghubir Singh had killed his wife or that the respondents knew or had reason to believe that Raghubir Singh was in any way responsible for the death of his wife. 5. We have heard the learned Assistant Advocate General as also the learned counsel for the respondents and perused the record. 6. Case of the prosecution is that Raghubir Singh had confessed, in the presence of the present respondents, that he happened to slap his wife and then pushed her, due to which she sustained head injury, which caused her …4… death. Finding qua this aspect of the matter could not have been recorded by the Sessions Court in the absence of Raghubir Singh, unless there is absolutely no evidence to this effect. Some witnesses examined by the prosecution did state that an extra-judicial confession was made by Raghubir Singh. Whether that evidence is believable or not is a question which cannot be gone into or determined behind the back of Raghubir Singh, because in case it is held that he did make a confession, as alleged by the prosecution, that would mean holding him guilty of a criminal charge, behind his back, which is not permissible under the law and in case it is held that he did not make any confession that would be used by him as a finding in his favour, when he is ultimately put on trial, after his arrest. And unless there is a definite finding, which, as we have already noticed, can be returned only after Raghubir Singh is available for trial, the present respondents cannot be said to be guilty or innocent, because for the charge, under Sections 201 of the Indian Penal Code, the first and the most essential ingredient is that an offence must have been committed. 7. Consequently, we accept this appeal, set aside the judgment of the Sessions Judge and remand the case to the Sessions Judge, with the direction that the respondents should be tried jointly with proclaimed offender Raghubir Singh and until he is traced and produced before it (the trial …5… Court), the trial of the case shall remain in abeyance. However, if after the filing of the present appeal, the proclaimed offender had been traced and produced before the trial Court and the trial Court has decided the said case, then the Sessions Judge will decide the case, against the present respondents, afresh, in the light of the verdict given in the case of Raghubir Singh. If Raghubir Singh has already been acquitted, then the trial Court shall pass formal order of acquittal of the respondents. In case he has been convicted, then the trial Court will pass a detailed judgment, after re-appreciating the evidence, with regard to the allegation of the prosecution that the respondents knew that the offence (proved against Raghubir Singh) had been committed and despite such knowledge destroyed the evidence and/or did not report the matter to the police, intentionally, to help said Raghubir Singh. 8. Record of the trial Court be returned, alongwith a copy of this judgment. Appeal stands disposed of. ( Surjit Singh ), J September 10, 2009(sd) ( Surinder Singh ), J