IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. : 422 of 2001 Decided on : 19.04.2011. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Surender Pal and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. R.K.Sharma, Sr. Addl. Advocate General. For the respondents : Mr. Anup Chitkara, Advocate. ____________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 17.3.2001, passed by the learned Sessions Judge, Hamirpur, H.P, in Sessions Trial No. 08 of 2001, acquitting the accused- respondents for the offences under Section 302 read with Section 34 IPC. 2. According to the prosecution deceased Pushpa Devi was married to Harbans Lal of village Tal, from whom two 1 Whether reporters of the local papers may be allowed to see the judgment? 2 children were born, thereafter marriage could not be continued and customary divorce took place. In due course Pushpa Devi married accused Surender Pal in August, 1999 and started residing with Surender Pal at his village Malwal Jadid. In June, 2000, deceased Pushpa Devi had come to her parents house at village Chhota Chhal, with her husband Surender Pal and co- villager Kulbir Singh and stayed in the house of Shri Jaishi Ram, i.e the father of deceased on 8.6.2000, who was running a Gharat in ‘Kunah Khad’, situated at a distance of 1 KM from his house. On 9.6.2000, the father of deceased Jaishi Ram was at the Gharat and Smt. Saraswati Devi PW-1, mother of the deceased was present in the morning in her house. PW-1 Saraswati Devi went to her husband at the Gharat on 9.6.2000 at about 9.00 AM and stayed with him whole day, but when she returned to her house in the evening she noticed that door of her house was locked. However, she did not open the lock and slept in the kitchen of her house. On the following day, i.e June 10, 2000, Smt. Saraswati Devi, started searching for the key of the lock, which was hanging on the door of her house. Between 1.30 and 2.00 PM a person came at her house, who revealed his identity as God brother of deceased Pushpa Devi, who at the instance of Smt.Saraswati Devi broke open the lock, thereafter, Smt. Saraswati Devi entered into the room and switched on the light and noticed that Pushpa Devi was lying 3 dead beneath a ‘Charpai’ and pieces of her broken bangles were scattered in the room. After noticing the dead body Smt. Saraswati Devi PW-1 at 7.00 PM went to Raj Kumar, the President of Gram Panchayat and informed him regarding death of Pushpa Devi. Raj Kumar reported the matter to the police. After completion of investigation, accused were charged for the aforesaid offences. 3. In order to prove its case the prosecution has examined as many as 19 witnesses. Whereas, the accused- respondents had denied the prosecution case. 4. PW-1 Smt. Saraswati Devi, the mother of the deceased Pushpa Devi in her endeavour to support the prosecution case, has stated that divorce had taken place in between Harbans Lal and Pushpa Devi about 4 or 5 years back and about 1 or 1 ½ years back preceding to death of Pushpa Devi, she had married with Surender Pal, however, there was no child from Surender Pal. Deceased Pushpa Devi used to visit her house very often with her husband Surender Pal. On 8.6.2000, deceased Puswhpa Devi had come to the house of Smt. Saraswati Devi PW-1 along with her husband Surender Pal and accused Kulbir Singh alias Jugga at about 8.00 PM. At that time, her husband Jaishi Ram was not present at home as he was residing at Gharat 1 KM away from house. Pushpa Devi deceased took her meal along with accused and PW-1 Saraswati 4 Devi and went to bed comfortably. At about 9 AM on the following day, PW-1 proceeded to Gharat and returned to her house at 8.00 PM. When PW-1 returned to her house at 8.00 PM, the door of the house was locked and key was not traceable, therefore, she slept in the verandah of her house and got up at 6.00 AM on the next day. At about 11.30 AM , God brother of deceased Pushpa Devi came and opened the lock. Thereafter, she noticed dead body of Pushpa Devi lying in her house and informed her husband about the death of Pushpa Devi and her husband asked PW-1 to report the matter to the Pradhan of Gram Panchyat, Boohni. After informing the Prahdan Gram Panchayat she returned to her house and God brother of Pushpa Devi ran away from that place after breaking open the lock. Police personnel came at about 8-9 PM and recorded statement Ex.PW-1/A. PW-1 had stated in cross examination that when she had gone to Gharat to give meal to her husband, Pushpa Devi followed PW-1 and brought lunch at the Gharat, as she told that the accused had expressed their desire to go back to their village and for that reason she had brought lunch at Gharat. PW-1 has further stated in cross examination that she came to her house with Pushpa to see of the accused, who have been given send of by a maruti van at about 11.30 AM. When the accused had departed , by that time deceased Pushpa had not taken her lunch. PW-1 5 further stated in cross examination that Pushpa was willing to accompany the accused to their village, but, subsequently, she changed her mind and decided to stay back for 2-3 days as father of the deceased was ill having stomach-ache. PW-2 Raj Kumar, Pradhan of Gram Panchayat Bhooni, on getting information from PW-1, telephonically informed Police Station Nadaun. 5. In the presence of PW-2, blood stained soil was taken into possession vide memo Ext.PW-2/A. Two empty bottles were also taken into possession out of several empty bottles of liquor lying in the house of Smt. Saraswati Devi, vide memo Ex.PW-2/B. Broken pieces of bangles were also taken into possession vide memo Ex.PW-2/C along with some letters, photographs Ext. P-1 to P-25. As per testimony of PW-2, after 5-6 days of the death of Pushpa Devi, accused Kulbir had got recovered knife from shrubby place situated nearby the house of Saraswati Devi PW-1, vide memo Ext.PW-2/E. PW-2 had further stated that in the year 1999 on the date of Raksha Bandhan, Harbans Lal had beaten Pushpa Devi at his house at village Badhar and PW-2 was informed about that incident by PW-1 Smt. Saraswati Devi. PW-2 however was witness of recovery of knife Ex.P-28. PW-3 Ashok Kumar took photographs of the dead body of Pushpa Devi deceased on 10.6.2000. PW-4 Smt. Urmila Devi, sister of deceased Pushpa Devi had only 6 divulged that accused Kuldip Singh alias Jugga had come to her house on 8.6.2000, at about 6 PM and got his shoes changed with her chappal and went to the market and thereafter Jugga left for the house of her mother PW-1. PW-5 Rakesh Kumar God brother of deceased Pushpa Devi stated that on 8.6.2000, he was informed by deceased Pushpa Devi telephonically to come to her parents house to meet her husband Surender Pal. On the next day when PW-5 went to the house of Smt. Saraswati Devi, door of the house was locked and he went to Gharat and met Smt. Saraswati Devi at noon on 9.6.2000 and was informed that Pushpa Devi and her husband might have gone for outing. On the following day i.e 9.6.2000, PW-5 again went to the house of Smt. Saraswati Devi, where he noticed Smt. Saraswati Devi sitting in the verandah of her house and asked PW-5 to break open the lock and accordingly the lock was opened and dead body of Pushpa Devi was noticed inside the room. PW-6 Dr. Kranti Thakur examined accused Surender Pal and noticed abrasion near the left knee. No mark of injury was observed on the person of Kulbir Singh alias Jugga. PW-7 Desh Raj Patwari, prepared tatima Ex.PW-7/B. PW-8 Rajesh Kaundal took into possession pant Ext. P-39 vide memo Ex,PW-8/A. PW-9 Sh. Jagmohan Singh Mahantan, had taken finger prints of accused Kulbir Singh alias Jagga and Surinder Pal alias Bittu. 7 6. PW-10 Dr. R. K. Kanwar had conducted postmortem examination Ex.PW-10/A of deceased Pushpa Devi and had observed the following injuries on her person:- “Ante-mortem abdominal injuries 1. There was stab wound 2 cm x 2 cm going deep into the chest and abdomen. It was cutting the sixth and seventh ribs of the right side of the chest of the deceased. The peritoneum diaphragm and upper part of the liver had also been cut. This injury was 4 cm from the mid line of the chest just below the right breast. 2. There was a stab wound 2 cm x 2 cm going deep and cutting the peritoneum and liver. It was situated in the epigastria region in the mid line 5 cm below the xiphisternum. 3. There was a stab wound 5 cm x 2 cm going deep into the abdomen and cutting peritoneum liver. 4. There was an incised spindle shape wound 3 cm x 1 ½ cm muscle deep on the lower part of right side of the chest in the anterior axillary line. 5. There was an incised wound 1 ½ cm x 1 cm on the anterior abdominal wall 15 cm to the right of umbilicus. It was deep upto subcutaneous fact. 6. There was an incised wound ½ cm x ½ cm skin deep on the upper part of the left side of the abdomen 15 cm situated obliquely above the umbilicus. 8 7. There was a stab wound 2 cm x 2 cm going deep into the abdominal cavity obliquely to the right side, cutting , peritoneum, omentum and left lobe of the liver. Gas was oozing out from all the above wounds. Reddish brown tissues were averting out from all these wounds.” 7. In the opinion of PW-10 deceased had died due to hemorrhagic shock resulting due to ante-mortem injuries. PW-10 had also opined that the deceased had sexual intercourse before her death and has also opined that injuries could be caused with any sharp edged weapon other than Ext.P-28 shape like knife. PW-11 Sh. Subhash Chand Dhiman , was the witness in whose presence Kukhari was recovered on 16.2.2000, at the instance of accused Kulbir Singh from shrubs near the passage which goes towards the khad from the house of Pushpa. PW-12 Baljit Singh, PW-13 LHC Charan Singh, PW-14 LHC Roshan Lal, PW-15 Sunil Chand, PW- 16 LHC Khem Raj and PW-17 Surinder Kumar constable had endeavoured to support the prosecution case in due discharge of their official duties. PW-18 Uttam Chand Head Constable had made recovery of the articles on the spot and had also taken into possession lock and other materials. PW-19 Shri Bakshi Ram Sub Inspector, had reached on the spot on receiving information about the death of Pushpa Devi, prepared site plan and got postmortem conducted and arrested 9 accused Surender Pal on 12.6.2000 at village Maniwal, P.S. Ferozepur and accused Kulbir Singh alias Jugga on 13.6.2000. On investigation, he had suspicion that these persons had murdered Pushpa Devi. 8. On analysis of prosecution witnesses and materials on record, we notice that in the present case nobody had seen anyone either sexually assaulting deceased Pushpa Devi or quarreling with her. PW-1 Smt. Saraswati Devi has also not indicated in FIR that Surender Pal and Kulbir Singh were quarreling with Pushpa Devi or she was being dragged forcibly and she had declined to go with Surender Pal. Testimony of PW-1 rather reveals that Surender Pal and co-villager Kulbir Singh alias Jugga had gone to the house of PW-1 Saraswati Devi and stayed there comfortably in night, whereas PW-1 stayed at Gharat along with her husband Jaishi Ram. It also appears unusual that when Surender Pal along with one associate namely Kulbir Singh had come to the house of father-in-law, PW-1 mother-in-law get away from her house leaving them alone. Testimony of PW-1 itself revealed that next day at about 11.30 AM, they were given send of by a maruti van. It is nobody’s case that they had returned again after their departure. We also notice that there was no blood stained on knife or khukhari, which could be said to be relatable to the blood of the deceased Pushpa Devi. Surprisingly, 10 Kulbir Singh was arrested on 13.6.2000 and Khukhari was got recovered thereafter on 16.6.2000 that too from a place away from the house of Pushpa Devi. Nobody had seen knife or khukhari being brought by Surender Pal or Kulbir Singh. The conduct of PW-1 appears to be also unusual and not inspiring confidence as why she stayed in the home in the night on 9.6.2000 in the absence of the key and she did not make any endeavour to trace out key from the near by houses in the village and she did not inform her husband Jaishi Ram and also did not endeavour to open the lock herself. The arrival of Rakesh Kumar on 8.6.2000 at the call of deceased Pushapa Devi and subsequently on 9.6.2000, is also not helping the prosecution to indicate anything that accused could be the real culprit, who could have assaulted Pushpa Devi. Pushpa Devi (deceased) was married between 1 ½ years back with Surender Pal and in view of the testimony of PW-1 Smt. Saraswati Devi Pushpa Devi had been visiting the house of her mother along with her husband and on the fateful day also nothing emanates which may indicate about the bad motive of Surender Pal and Kulbir Singh alias Jugga indicating the occasion of killing of Pushpa Devi. 9. In the facts and circumstances, the motive is lacking. Conduct of PW-1 and PW-5 is also full of suspicion. When on 9.6.2000, at about 11.30 AM, accused were given send 11 of by PW-1 and Pushpa Devi deceased then they cannot be said to be last seen with Pushpa Devi. No endeavour on the part of the prosecution was made to co-relate and prove the sexual assault before death with accused persons. It is also pertinent to note that Surender Pal being the second husband of Pushpa Devi had stayed in the night with Pushpa Devi, then there could not be any occasion that he will return back again (after his departure at 11.30 AM in the van) and sexually assault victim and kill her. The events and circumstances are not making complete chain in support of the prosecution case. Instances are broken and not making complete chain where it could be said that Surender Pal and Kulbir Singh could be held guilty of killing Pushpa Devi. 10. In the facts and circumstances, the prosecution cannot be said to have proved its case beyond reasonable doubt. The prosecution has miserably failed to bring home guilt to the accused. Accordingly, the appeal is dismissed being devoid of any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. April 19, 2011. (lsp)