IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.12 of 1995 Decided on: 2nd March, 2009 State of H.P …..Appellant. VERSUS Siri Ram & others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting?1No For the Appellant: Mr. Rajesh Mandhotra, Dy.A.G for the appellant For the Respondents: S/Shri Bhuvnesh Sharma and D.Dadwal, advocates for respondents Deepak Gupta,Judge (Oral) This appeal is directed against the judgement delivered by the Learned Sessions Judge, Hamirpur in Sessions Trial No.3/91 decided on 16.2.1994 whereby he acquitted the accused of having committed offences punishable under Sections 302/201/34, IPC. 2. Briefly stated the facts of the case are that one Sita Ram of village Baroli went missing from his house on 6.1.1990. Report in this regard was lodged by his wife Smt.Kesari Devi on 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 20.3.1990 with the police station Barsar. On the same day, in the evening, the decomposed dead body of Sita Ram was found floating in the Nallah known as Dhara-ka-Cho in village Birswin. Shri Ram Dass, Pradhan of the Panchayat sent a telephonic information to the police in this regard. Thereafter, the police came to the spot and the dead body of Sita Ram was taken into possession. After inquest, the same was sent to the District Hospital, Hamirpur for post-mortem. Since the body of Sita Ram was highly decomposed, the doctor at the District Hospital, Hamipur referred the same to the Indira Gandhi Hospital at Shimla for post- mortem. Doctor Ghosh conducted the post-mortem on the body of Sita Ram on 27.3.1990 and found that Sita Ram had died due to multiple ante-mortem head injuries. The police however, found no clue in the matter. 3. According to the prosecution, on 15.5.1990 Kesari Devi, wife of the deceased approached PW-1 Kewal Krishan, Ward Panch and complained to him that her son Madan Lal had taken away her ornaments and was trying to withdraw her money. She also alleged that Siri Ram who is father-in-law of her son Madan Lal was threatening her that she would meet the same fate as her husband in case she disclosed anything regarding the death of Sita Ram. Kewal Krishan asked Kesari Devi to approach the Pradhan of the Gram Panchayat. On the next day, Kesari Devi again came to PW-1 Kewal Krishan and stated that about 5-7 days before Lohri, the accused Siri Ram (father-in-law of her son Madan Lal) had come to her house in the evening. Kesari Devi was sitting in the kitchen alongwith her daughers Sheela Devi and Sonu alias Goongi and son Naresh Kumar. Sita Ram, deceased was lying in the bed room. According to her, Siri Ram gave a blow of a hammer on the head of Sita Ram and killed him. According to her, she and Sheela Devi also gave one danda blow to Sita Ram at the instance of Siri Ram and thereafter, the three accursed namely Siri Ram, Kesari Devi and Sheela Devi wrapped the dead body of Sita Ram in a sheet and threw it in Dhara-ka-Cho (Nallah). She further stated that the entire incident was witnessed by her daughter Sonu alias Goongi and son Naresh Kumar. 4. Thereafter, Kewal Krishan lodged a report with the police on 16.5.1990 and accordingly the case was registered against the accused under Sections 302/201/34, IPC. Thereafter, the three accused were arrested and according to the prosecution, the hammer and sticks were recovered on the basis of their disclosure statements. According to the prosecution, the relations between Kesari Devi and her husband deceased Sita Ram were strained. It was also alleged that Kesari Devi had wrongly informed her son Madan Lal in January-February, 1990 that her husband had gone to a village in Una. After investigation, Challan was filed and the accused were charged for the aforesaid offences. The accused pleaded that they were innocent and claimed trial. After trial, the Learned Trial Court acquitted the accused. Hence the present appeal by the State. 5. We have heard Sh.Rajesh Mandhotra, learned Dy.Advocate General for the State and S/Shri Bhuvnesh Sharma, and D.Dadwal, learned counsel for the accused. 6. At the outset, it is pertinent to state that both the alleged eye witnesses Naresh Kumar, PW-19 and Kumari Sonu alias Goongi, PW-20 have not supported the prosecution case at all. They denied that any such incident had taken place in their presence. It was alleged on behalf of the State that these two witnesses have tried to protect their mother and sister who were two of the accused persons. It is also urged that the extra judicial confession has been proved on record and the circumstantial evidence leads to only one conclusion that the accused have committed the crime. We are not inclined to accept the arguments made on behalf of the State. The prosecution case was that PW-19 Naresh Kumar and PW-20 Kumari Sonu alias Goongi had witnessed the incident, whereas while appearing in Court, they did not support the prosecution. They were declared hostile. Thereafter, virtually the only cross-examination to these witnesses is that they are telling lie to protect their mother and sister. One cannot loose sight of the fact that the person who died was the father of these witnesses. If actually their mother and sister had killed their father, there was no reason why they should protect them. 7. PW-1 Kewal Krishan is the person to whom Kesari Devi had made the alleged extra judicial confession. At the first instance, when he was examined in Court, PW-1 denied that Kesari Devi had made any extra judicial confession before him. He also denied that any weapon of offence had been recovered on the basis of the disclosure statements of the accused in his presence. He was thereafter, declared hostile. He then admitted his signatures on the FIR, Ext/PA and then admitted each and every suggestion made by the prosecution and stated that Kesari Devi had confessed the crime before him. He also admits that all the disclosure statements and consequent recoveries from the accused were effected on 16.5.1990, the day on which the FIR was lodged. He also admits that as far as the villagers were concerned, there was no suspicion about the involvement of Kesri Devi till 16.5.1990. 8. In our opinion, the statement of this witness cannot be relied upon since he has been changing his version time and again. In the examination-in-chief, he denied that anything had been told to him by Kesari Devi. He also denied that any recoveries were made in his presence. However, on cross-examination by the prosecution, he admitted that on 15.5.1990 Kesari Devi told him that Siri Ram had threatened her that if she disclosed anything about the death of Sita Ram to any person, she would meet the same fate. Till that stage, the FIR had not been lodged. Why did this witness not make any inquiry from Kesari Devi about the cause of death of Sita Ram in case Kesari Devi had made the alleged statement to him? Sita Ram was missing but his body had not been discovered till 15.5.1990. This was the first information of the death of Sita Ram. Natural human conduct would have been to inquire from Kesari Devi what was the information about the death of Sita Ram which she was not supposed to disclose. Human curiosity especially in regard to a death of a co-villager would not have been satisfied by mere silence. This witness who was the member of the Panchayat would be excepted to ask Kesari Devi about the death of Sita Ram which she had disclosed to him for the first time. This raises grave doubt about the veracity of the statement of the witness. 9. The weapons of offences alleged to have been recovered are a hammer-P/9 and sticks-P/7 and P/8. This witness as well as other witnesses have admitted that these are agricultural instruments normally available with the agriculturists. There is no reason why the accused would have kept the hammer and sticks with them for more than five months after having murdered the deceased. 10. As regards the motive of the murder, PW-3 Mirchu Ram states that the relations between Sita Ram and Siri Ram were not cordial. He also states that there was dispute between Kesari Devi and Sita Ram which was resolved by the Panchayat and the Court. However, the prosecution has not produced any Panchayat record to prove this fact. PW-6 Madan Lal is the son of Sita Ram. According to him when he came to his house on Lohri on 13.1.1990 and again in February, 1990, he did not find his father at home. On inquiry he was informed by the mother Kesari Devi that his father had gone towards Una side. He also states that sometimes his father and mother were not on talking terms. However, he has denied the suggestion that the relations between the accused and the deceased were strained. From the perusal of the aforesaid statements, it is apparent that there is no motive why Kesari Devi would kill her husband. Similarly, there is no motive for Siri Ram to kill the deceased. 11. Coming to the so-called extra judicial confession, the same is no confession in the eyes of law. Kesari Devi as per this extra judicial confession stated that Siri Ram had given a hammer blow on the head of her husband due to which he died. Thereafer, she and Sheela Devi at the instance of Siri Ram gave danda blow to her husband. By that time, her husband was already dead. By this alleged confession, Kesari Devi has not implicated herself or her daughter Sheela Devi in regard to the death of her husband Sita Ram. It cannot be used against Siri Ram and Sheela Devi under any circumstance. Furthermore, as already discussed above, the statement of Kewal Krishan inspires no confidence since he did not make any inquiry from Kesari Devi on the first day, when she informed him that Siri Ram had threatened her not to disclose about the cause of death of Sita Ram. There is also no reason why Kesari Devi would make the confession to Kewal Krishan more than five months, after the alleged murder. 12. Though the prosecution alleges that relations between the deceased and his wife Kesri Devi and Siri Ram were strained but the evidence in this behalf does not satisfy the judicial conscience of this Court. PW-2 and PW-3 had themselves admitted that the differences between Kesari Devi, Sita Ram and Siri Ram were not of serious nature. In all relationships, there are ups and downs. If relations are slightly strained, it will not lead to murder. 13. It is urged that Kesri Devi hid the fact that her husband had gone missing from her son Madan Lal. It is also argued that since Sheela Devi and Kesri Devi did not make any report about the deceased being missing till 20.3.1990 and this shows that they were both interested. It has come in the evidence of Madan Lal that Sita Ram many times used to go towards Una side in connection with carpentry work. At the first instance, no wife would be expected to believe that her husband had died and, therefore, she may have informed Madan Lal and others that Sita Ram had gone towards Una side but this cannot lead to the conclusion that she had committed the murder of the deceased. There is no reason why the three accused would have conspired with each other to kill the deceased. 14. As regards the recovery of the alleged weapons of offence is concerned, in our opinion, the same is totally illegal. The alleged recovery was made more than 5 months after the alleged offence. There is no explanation as to why the accused would keep weapons of offence in their own premises for this long period. 15. In view of above discussion, we find that the prosecution has miserably failed to link each and every circumstance to complete the chain which would lead to an irresistible conclusion that it was the accused and no else who could have committed such an offence. Therefore, the learned Trial Court was correct in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. (V.K.Ahuja) 2nd March, 2009 Judge (m)