IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 94 of 2001 Decided on March 15, 2011 ________________________________________ State of H.P. …Appellant Versus Munshi Ram & Ors. …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Petitioner: Mr. R.K. Sharma, Senior Additional Advocate General. For the respondents: Mr. Vinod Gupta, Advocate. No. 1 & 2. Justice R.B. Misra, J (oral). The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 31.8.2000 passed by Additional Sessions, Mandi, H.P., thereby acquitting the respondents/accused for offence under Section 302, 201 read with Section 34 of the Indian Penal Code. 2. Complainant Smt. Leela Devi, Wd/o Sh. Nota Ram made a complaint that her husband Nota Ram (deceased) was employed at Shahpur Kandi, Pathankot and on 29.12.1992, her husband had come to home and on 7.1.1993, he had gone to Mandi in connection with his personal work, but did not turn up. However, she thought that her 2 husband had gone to some relations. On 11.1.1993, PW-2, Smt. Leela Devi had gone to Ghatta to invite her daughter, Smt. Meera Devi, PW-7 on the occasion of Lohri Festival, from whom Smt. Leela Devi, PW-2 inquired about Nota Ram and it was revealed that on 7.1.1993, Nota Ram had visited the house of Munshi Ram and had taken liquor with Munshi Ram at his house and while sitting in the upper storey of the house of Munshi Ram, Nota Ram was served meal by Murari and thereafter he went to some other place. However, whereabouts of Nota Ram was not known, thereafter, on search his dead body was recovered on 16.1.1993 in the ground of Village Ghatta. Coat, muflar and shoes were lying near the dead body and the recovery of dead body and articles were witnessed by PW-1, Sh. Baldev Chand. After investigation, the accused persons were charged for the offences under Section 302, 201 read with Section 34 of the Indian Penal Code. The report under Section 154 of the Indian Penal Code was lodged by Smt. Leela Devi, PW-2, wife of Nota Ram (deceased). 3. In order to prove its case, prosecution examined as many as 25 witnesses, whereas 5 defence witnesses were presented on behalf of the accused/respondent. 4. On analysis of the prosecution witnesses, we notice that PW-1, Sh. Baldev Chand is the witness of dead body and the articles seized by the police officials. 5. PW-2, Smt. Leela Devi has stated that her daughter Smt. Meera Devi, PW-7 had gone to her in-laws house on 8.1.1993, whereas, her husband Nota Ram/(deceased) had left her house on 7.1.1993 for 3 Mandi with revenue papers of the land and did not return back. On 11.1.1993 when Smt. Leela Devi went to the place of her daughter, PW-7 to call her for Lohri Festival, she came to know that Smt. Gora Devi, PW-5, mother-in-law (Chachi) told her that Nota Ram came to her house on 7.1.1993, brought by Bhoop Singh on his Scooter. Whereas Gaura Devi, PW-5 has stated that Nota Ram came with Munshi Ram on Scooter of Sh. Bhoop Singh and meal was served to Nota Ram as he was not to take meals in the house of his daughter as per custom. As per testimony of PW-2, Smt. Leela Devi, it was Smt. Gaura Devi , PW-5 who told that Munshi Ram and Nota Ram were exchanging their view and had hot conversation up to 11.00 P.M. and Gora Devi did not know what happened thereafter. PW-2 inquired from Premu Ram, i.e. the father-in-law of Smt. Meera Devi (PW-7), about her husband and PW-2 came to know that Nota Ram/(deceased) was sitting in the room of Munshi Ram. However, PW-2, Smt. Leela Devi wee coming back to her home with her daughter Smt. Meera Devi, PW-7 on 11.1.1993, met one Narrotam on the road who told that in the room of Munshi Ram on 7.1.1993 he had heard hot conversations between Munshi Ram and Nota Ram, but, surprisingly Sh. Narotam was not examined. PW-1 has further stated that on inquiry, Munshi Ram told that Nota Ram was in his house on 7.1.1993 up to 11.0 P.M. and thereafter Nota Ram left his house. PW-2 has however not indicated anything about the beating of Nota Ram in the hands of Munshi Ram. 4 6. In view of the testimony of PW-2, She came to know from Smt. Gora Devi (PW-5) that Nota Ram accompanied Munish Ram on the Scooter of Bhop Singh. Whereas PW-2, Bhoop Singh has stated that on 7.1.1993 accused Munshi Ram and father-in-law of his younger brother Nota Ram (deceased) had come to PW-3 and had sought lift to visit the house of Munshi Ram and PW-3/Bhoop Singh had provided lift to accused Munshi Ram and Nota Ram on his Scooter and had dropped them to the house of Munshi Ram on 7.1.1993 and after taking a glass of milk and two biscuits left his house. Whereas, accused Munshi Ram had been taking liquor at his house with Nota Ram on 7.1.1993. As per testimony of PW-3/Bhoop Singh, Munshi Ram and Nota Ram had taken liquor not only in his presence at the premises of Munish Ram, but Munshi Ram was also in possession of one bottle of liquor. PW-3 had stayed at the house of Munshi Ram for about one and half hours and then returned back to his house. PW-3/Bhoop Singh has stated in his cross-examination that Munshi Ram and Nota Ram were thoroughly drunk and were in a position manage themselves. Nota Ram/(deceased) had informed PW-3 that since his daughter is marred in that house, therefore, he could not stay there for night. From the testimony of PW-3/Bhoop Singh, it is clear that he had given lift to Nota Ram/(deceased) and Munshi Ram up to the house of Munshi Ram and dropped both of them at 6.45 P.M. on 7.1.1993 and stayed there about half an hour, while they were taking liquor. Whereas, as per information given by Smt. Gaura Devi (PW-5) to Smt. Leela Devi (PW-2) Nota Ram came with Mushi Ram on the Scooter of Sh. Bhoop 5 Singh. The statement of Smt. Leela Devi/PW-2, therefore, cannot be believed to that extent. 7. On the basis of information given by PW-5, Smt. Gaura Devi, PW-2, Smt. Leela Devi has stated that her husband Nota Ram and Munshi Ram had been exchanging views and were involved in hot conversations up to 11.00 P.M. and even Munshi Ram told to Smt. Leela Devi that Nota Ram stayed in his house up to 11.00 P.M. on 7.1.1993 and thereafter he left. Whereas, PW-5/ Smt. Gaura Devi has stated that she served food to Nota Ram through Murari/PW-6 and when PW-5/(Smt. Gaura Devi) was in her kitchen, Nota Ram came there. As per testimony of PW-5/Smt. Gaura Devi, Nota Ram had visited her house and said that the house of her daughter was also there in the village, as such he could not take food in the house of her daughter 8. Whereas in view of the testimony of PW-6/Murari, Nota Ram/(deceased) had visited the house of Munshi Ram on 7.1.1993. At that time he and his mother were taking food in the kitchen and PW-6/ Murari requested Nota Ram to share food with them. However, Nota Ram had stated that he would take food separately and PW-6/Murari carried foods for Nota Ram to the upper storey of the house where Nota Ram was sitting with Munshi Ram, and sharing drinks in the room. 9. PW-4, Sh. Dharam Chand, owner of General Merchant Shop had stated that Munshi Ram had come four years back alongwith two others and had bought a packet of Daal from his shop and Munshi Ram was accompanied with Bhoop Singh. 6 10. PW-7, Smt. Meera Devi stated that on 5.1.1993 in her absence she left house at Village Ghatta for the house of her parents and stayed there on 5.1.1993 and 6.1.1993 and returned to her house on 7.1.1993 and she came to know that her father had visited her house on 7.1.1993, but was untraceable thereafter. Smt. Meera Devi (PW-7) is married to Devi Singh/(accused/respondent No. 2) and is daughter-in- law of Premu Ram/(accused/respondent No. 3). 10. Sh. Nand Lal, DW-3, the brother of Murari (PW-6) had stated that house of accused Munshi Ram is close to his house and Nota Ram had visited the house of Munshi Ram and left his house late in the evening at about 8.00 P.M. As per testimony of Nand Lal, DW-3, Nota Ram had informed him that he wanted to go to the house of his in laws and had named one Beli Ram, who was sought to be visited by him. In cross-examination, DW-3 has stated at one place Nota Ram had not visited the house of accused Munshi Ram in his presence. However, subsequently, he stated that he has not seen Nota Ram. DW-3/Nand Lal has also stated in his cross-examination that he is not aware that how long Nota Ram stayed in the house of Munshi Ram. DW-3/Nand Lal further stated that he had dropped food in the evening at the house of accused Munshi Ram in his room in the upper storey. He was not aware that Nota Ram and Munshi Ram had taken liquor in the room where they had taken food. DW-3 has voluntarily stated that Nota Ram had informed him that he would not stay at the house of his daughter. In view of testimony of DW-3, Nand Lal made in cross-examination, Nota Ram had left the house of Munshi Ram at about 7.30 P.M. when 7 his mother Smt. Gaura Devi, PW-5 was present in the house on that date. Nand Land, DW-3 and Murari, PW-6 are real brothers and in view of the testimony of PW-6, Murari, he had served food to Nota Ram and Munshi Ram at first floor of the house where Nota Ram/(deceased) was sitting. 11. In view of the testimony of the prosecution witnesses, i.e. PW-3/Bhoop Singh and PW-6/Murari, Nota Ram (deceased) was taking liquor with Munshi Ram. Whereas Dw-3, Nand Lal has stated that he was not aware whether both of them were taking liquor or not. DW- 3/Nand Lal has stated that it was he, who had served meal to Nota Ram at first floor of the accused Munshi Ram. The prosecution story also becomes doubtful as both the persons i.e. DW-3, Nand Lal and PW-6, Murari are claiming to serve food to Nota Ram (deceased), whereas, PW-6 has not mentioned the name of DW-3, Nand Lal in his statement regarding serving of food to Nota Ram/(deceased) and Munshi Ram. In view of the testimony of PW-2, which is based on information given by PW-7, Meera Devi, Munshi Ram/(accused) and Nota Ram/(deceased) remained in the house of Munish Ram up to 11.00 P.M. Whereas, in view of the testimony of Nand Lal (DW-3), Nota Ram remained in the house of Munshi Ram only up to 8.00 P.M. and subsequently stated that Nota Ram left the house of Munshi Ram about 7.30 P.M. As per testimony of PW-3, Bhoop Singh, he dropped Munish Ram and Nota Ram/(deceased) to the house of Munshi Ram at about 6.45 P.M. and remained there for half an hour. It can not be believed that Nota Ram left the house of Munsi Ram at about 7.30 P.M. From the testimony 8 of PW-3/Bhoop Singh, DW-3/Nand Lal and PW-2/Smt. Leela Devi, the presence and duration of stay of Nota Ram becomes doubtful in the house of Munshi Ram. Surprisingly none of the prosecution witnesses has indicated specifically that while taking liquor Munshi Ram and Nota Ram had quarreled. PW-5/Gaura Devi has not stated anything about taking liquor by Nota Ram and Munshi Ram at the house of Munshi Ram. PW-5, Smt. Gaura Devi has also not stated anything that Nota Ram was under the influence of liquor. 12. On analysis of the above mentioned prosecution witnesses and defence witnesses, it appears that Nota Ram might have gone to the place of Munshi Ram, but the time of his stay is doubtful and in absence of non-mentioning of any quarrel or assault by Munshi Ram or any one else on the person of Nota Ram, the case of the prosecution becomes doubtful regarding Nota Ram (deceased) had succumbed the injuries having been inflected in the hands of Munshi Ram. None of the prosecution witnesses has mentioned any role of Devi Singh and Premu Ram, except that Premu Ram had suggested not to keep the dead body in the house and suggested immediately shifting. At this stage, it is not necessary to deal with the medical opinion of PW-8/Dr. D.K. Goesh. Other prosecution witnesses are not very material as none of the prosecution witnesses had seen the occurrence, the incident is said based on circumstantial evidence and theory of last seen. The narration of facts and circumstances are not being correlated to make a complete chain of incident. 9 13. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment. The Criminal Appeal, being devoid of any merit, is accordingly dismissed. 14. Bail bonds, furnished by the respondent are hereby discharged. (R.B Misra) Judge March 15, 2011 (V.K.Sharma) (KRS) Judge