1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.236 of 2005 Decided on : 14.05.2008 Tikka Ram …Appellant. Versus State of H.P. …Respondent. 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 Neeraj Sharma, Advocate, vice Mr. Jagdish Vats, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General. Surjit Singh, Judge (Oral ) Appellant has appealed against the judgment of Sessions Court whereby he has been convicted of offence under Section 302, I.P.C. and sentenced to under-go life imprisonment and to pay a fine of rupees 10,000/-, in default of payment of fine, to under-go simple imprisonment for a further period of six months, for allegedly murdering his wife on the night intervening 19th and 20th November, 2002. Prosecution case as it emerges from the record is like this. Deceased Leela Devi was married to appellant about eleven years prior to her death. Four years after the marriage, the appellant brought another wife named Chhuma Devi. This led to quarrels and estrangement between the deceased and the appellant. Some time in the year 1996, the deceased was beaten up by the appellant. She lodged a Whether reporters of the local papers may be allowed to see the judgment?yes. 2 report to the Police. Police challaned the appellant for an offence under Section 498-A, I.P.C. The Magistrate, who conducted the trial, convicted the appellant of the said offence and sentenced him to imprisonment for one year. In the year 1998, deceased filed a petition under Section 125 of the Code of Criminal Procedure against the appellant seeking grant of monthly maintenance allowance. The matter was compromised. Appellant took the deceased along with her three children to his place. Appellant gave an under-taking in writing Exhibit PW1/A that he would properly look after and maintain the deceased and her three children. Again there had been a quarrel between the deceased and the appellant and the deceased left the matrimonial home and went to her parent’s place. In May, 2001, there was a meeting of the Panchayat and on the appellant giving under-taking to maintain the deceased and her children, Panchayat sent the deceased and her children with the appellant. Thereafter, the deceased started living in village Tatiana where the appellant has his landed property, while appellant some time lived with her in the aforesaid village and sometime with his second wife Chhuma Devi in another village. About a month prior to the occurrence, the appellant increased the number of his visits to the deceased. This he did with a view to winning her confidence. On 19-11-2002, appellant took the deceased to Renukaji where a fair is held. On the night intervening 19th and 20th November, 2002, while staying in an inn at Renukaji he took the deceased to a forest behind the Inn as she wanted to answer call of nature. When the deceased was sitting in the bushes to answer call of nature, appellant is alleged to have strangulated her to death by means of her shawl. Next morning, he went to village Kafota and stayed there for the night at the house of one Sant Ram, 3 a grocery dealer. On 21-11-2002, he returned to his village and on being asked by his co-villagers as to where he had left his wife, he confided in one Ramesh (not examined as a witness) and one Nanda (PW3) that he had killed his wife in the forest behind an Inn at Renukaji and concealed the dead body in the bushes. Said Ramesh and Nanda Ram informed the Pradhan of the Panchayat, namely, Guman Singh (PW4) who in turn made a telephonic call at Police Station, Shillai. Information conveyed to the Police by Guman Singh (PW4) on telephone was entered in the Roznamcha. Copy of the entry is Exhibit PW5/A. Then Purshotam Dass (PW10) S.H.O. Police Station, Shillai visited the spot. He made enquires on the spot and came to now that the appellant had killed his wife. He, however, found that the place of occurrence fell within the area of Police Station Renukaji. Therefore, he returned to his own Police Station Shillai and entered a report copy Exhibit PW5/B. A copy of the said report was sent to Police Station, Renukaji. Case was formally registered on the basis of that entry Exhibit PW5/B at Police Station Renukaji, vide F.I.R. Exhibit PW8/A. Appellant was arrested by S.H.O. Police Station, Renuka Ji, namely Bhisham Thakur (PW12). He made a disclosure statement leading to the discovery of the dead-body. Inquest was conducted. Inquest report consists of Exhibit PW12/B and PW12/C. Spot map was also prepared. One torch was also recovered from the spot which allegedly belonged to the appellant and which he happened to leave at the site of occurrence. Post-mortem was conducted. Doctor found that the cause of death was asphyxia caused by strangulation. PW11 Dr. Vijay Krishna conducted the post mortem examination. Trial Court has held that the evidence on record proves the following circumstances and these circumstances make a complete chain pointing to the guilt of the appellant and to no other hypothesis: 4 “i) Deceased Leela Devi was married to the accused about 11 years ago. For about 4 years after the marriage he treated her well. Thereafter unlawfully brought another lady, Chhuma Devi, as his wife under the same roof and started ill-treating Leela Devi. He also neglected and refused to maintain her. Finding it difficult to bear the ill- treatment any more, Leela Devi went to her parental house and started living there. ii) On August 4, 1996, the deceased lodged with the Police the aforementioned FIR Ext. PW8/A under Section 498-A IPC. The accused was tried for this offence and held guilty. He was sentenced to imprisonment for one year and a fine of Rs. 1,000/-. iii) The deceased laid against the accused a petition for maintenance under section 125, Cr.P.C. in the Court of Additional Chief Judicial Magistrate, Paonta Sahib. There the accused gave a statement dated November 18, 1998 Ext. PW9/C that he would treat her and the children well and provide them maintenance etc. iv) Once again the deceased had to leave the matrimonial house. She started living in her parental house. With the intervention of certain respectable of the village and the members of Gram Panchayat, the aforementioned compromise Ext. PW1/A was got effected between her and the accused. v) On account of all these circumstances, particularly her having instituted against him the aforementioned 5 cases and his having been convicted and sentenced under section 498-A IPC, he nursed a strong grudge against her. Besides, he found it difficult to maintain her and the children at a separate place. vi) On November 19, 2002, accused went to Renuka fair in Renukaji tehsil with the deceased. There he was seen with her by her brother Madan Singh (PW1). In other words, he was last seen with the deceased in the Renuka fair during the day preceding the night of her murder. vii) The accused was apprehended by the Police on November 22, 2002. A day before his arrest, he told Nanda Ram (PW3) and Ramesh that his wife had gone missing. Had he been truthful in his revelation he would have reported the matter to the Police or the Pradhan of Gram Panchayat. But he did not do so. viii) While in police custody, he gave the aforementioned disclosure statement under section 27, Indian Evidence Act. Following the disclosure, he led the investigator to the spot where dead-body of Leela Devi was found in the aforementioned condition. The torch Ext. P1, with which injuries were inflicted on her face, was also found near the body. Human blood was found on the torch and the aforementioned clothes of the deceased, vide the Forensic Science Laboratory’s report Ext. PW12/E. So, the facts discovered on the basis of the accused’s disclosure 6 are : (i) the dead body of Leela Devi with a shawl round its neck, and the torch Ext. P1 and other items recovered from the spot and (ii) his knowledge as to the dead body and the torch lying concealed in the bushes in the jungle behind Kubja Pavillion Sarai in Renuka Ji area. ix) The cause of death of the deceased was asphyxia (strangulation). She had died immediately after infliction of the injuries found on her person”. We have been taken through the evidence led by the prosecution. Also we have heard the learned counsel for the appellant and the learned Additional Advocate General. Admitted facts are that the deceased was married to the appellant and that four years after the marriage, relations between the deceased and the appellant turned sore on account of appellant having brought another wife named Chhuma Devi. It is also admitted that twice or thrice, the deceased had left the matrimonial home and gone to her parents’ place. Once in the year August 1996, deceased lodged F.I.R. (copy Exhibit PW8/A) against the appellant under Section 498-A I.P.C. A report was filed against the appellant by the Police based on the aforesaid F.I.R. and he was tried by the Magistrate and was convicted of offence under Section 498-A, I.P.C. and sentenced to imprisonment for one year and fine of rupees 1000/-. Thereafter, the deceased filed a petition under Section 125 of the Code of Criminal Procedure some time in the year 1998. Appellant made a statement on 18-11-1998 in the proceedings of the aforesaid application (copy of the statement Ext. PW9/C) under-taking thereby to properly maintain and look-after the deceased and her children and the deceased then returned to the 7 matrimonial home along with the children. It is also admitted that thereafter, the deceased again left the matrimonial home alleging that she was not properly maintained and this time, Gram Panchayat intervened and a compromise was effected vide writing Exhibit PW1/A dated 28-5-2001. The deceased accompanied by her children again went to the matrimonial home and started living at the native place of the appellant in village Tatiana. There is absolutely no evidence on record suggesting, even remotely, that the deceased was not provided maintenance or was kept hardup or was subjected to any kind of cruelty after she returned to the matrimonial home on 28th May, 2001 pursuant to the compromise (writing Exhibit PW1/A) effected by the intervention of the Panchayat. Also we find no credible evidence with regard to the allegation that the appellant increased frequency of his visits to the deceased about a month prior to her murder. Also there is no credible evidence with regard to the allegation that the appellant accompanied by the deceased had gone to Renukaji fair on 19-11- 2002. No doubt, PW1 Madan Singh, a brother of the deceased, did state that he had seen the deceased and the appellant in Renuka fair on 19-11-2002 but this statement is an improvement over the statement which the witness made to the Police under Section 161 Cr.P.C. He admitted in the cross-examination that this fact was not disclosed by him to the Police during the investigation of the case. We find from the record that the police recorded the statement of this witness, under Section 161 Cr.P.C., on 12-12-2002 or say a little less than one month after the occurrence and still the aforesaid fact does not find mention in his statement. Therefore, there should be no hesitation in concluding that the testimony of the witness so far as his having seen the 8 deceased and the appellant in the fair at Renukaji is concerned, is not believable. Evidence with regard to the alleged judicial confession made by the appellant to Ramesh and PW3 Nanda Ram is lacking. Prosecution did not examine said Ramesh. It examined only Nanda Ram as PW3. He did not support the prosecution version. He denied that appellant made any confessional statement. Evidence regarding the alleged recovery of the dead body at the instance of the appellant is also of doubtful nature. Appellant is alleged to have made disclosure statement about the dead body to PW12 Bhisham Thakur, S.H.O. Police Station, Renukaji in the presence of PW2 Bhagwan Singh and one Inder Parkash. Prosecution did not examine Inder Parkash. Bhagwan Singh stated in the cross- examination that the statement was made by the appellant after the recoveries were effected. The recoveries which he referred to were of the dead-body, a pair of Chappals, shawl, salwar, broken pieces of bangles etc. belonging to the deceased. That means the dead body was not recovered pursuant to the alleged disclosure statement made by the appellant. Also we find from a reading of Exhibit PW5/B, the report which PW10 Purshotam Dass entered in the daily diary at Police Station, Shillai after visiting the spot that he was knowing where the dead body of the deceased lay, because it is recorded in Exhibit PW5/B that the dead-body was lying just behind Kubja Inn at Renukaji in the bushes. In view of the above said position, we have no manner of doubt that the alleged circumstances connecting the appellant with the commission of the crime, are not proved. Therefore, the appeal is accepted. Judgment of the trial Court convicting and sentencing the 9 appellant as aforesaid, is set-aside and the appellant is acquitted. He being in jail, serving out the sentence, is ordered to be set at liberty forth-with, if not required in any other case. ( Surjit Singh ), Judge. (Surinder Singh ), Judge. May 14, 2008. (bm)