1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 152 of 2000 Decided on December 3, 2010 State of H.P. …Appellant. Versus Bihari Lal and Anr. ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondents: Mr. Rakesh Dhaulta, vice Mr.D.N. Ronta, Advocate. Justice Surinder Singh,J. (oral) The respondents were tried and acquitted for the offence punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, in Sessions Trial No.1 of 1997, decided on 7.9.1999. The State, by means of the present appeal, has assailed their acquittal. 2. In short, the prosecution case can be stated thus. Dalip Kumar (deceased) was allegedly murdered by the respondents on the allegation that he was having sexual relations with one Bhima, who was paramour of Bihari Lal. Parwati Devi (PW.2), is an eye witness. She was having illicit relations with Tulku alias Tek Chand. Both were strolling in the orchard during the night and sat on the side of nullah. She was attracted with the cries 'Mara Mara' coming from the 2 house of Bhima and saw Bihar Lal, Dabar and Hiru (now dead) carrying Dalip Kumar out of the house of Bhima. The dead body was placed by them under the water-tap thereafter, they washed the blood stains and it was placed on the road near the curve. Next day the dead body was found at the said place and police was informed. PW.2 aforesaid did not disclose the fact to anyone despite the fact that her paramour Tulku @ Tek Chand and her father, Paras Ram and Bihari Lal were arrested by the police in connection with this murder case. The challan was finalized against them, it was also presented in the court but vide order dated 27.9.1993, they were discharged, as there was no linking evidence against them. At that time, the prosecution story against them was that on the fateful night, Tek Chand and Paras Ram had been hovering around the house of Parwati aforesaid, to get the opportunity to be with her. Hira Singh and Chuhru took liquor on the road side, thereafter, Chuhru was taken to his house by Shanti his wife. Hiru alias Hira Singh went to the house of Dabar and the deceased was last seen in the company of Hira Singh, Chuhru. Thereafter the deceased was seen lying on the road in drunken condition by Mohan Singh a truck driver. The learned trial court against them did not find any material even to frame charge against any of the accused, thus they were discharged. 3. After the discharge, reinvestigation was conducted by various police officers and during that time, in the year 1993, PW.2 Parwati made a statement after about 3 years, 3 before the police involving the respondents including Hiru (deceased) responsible for the murder of Dalip Kumar. Her statement under Section 164 Cr.P.C. was recorded before the Magistrate on 20.5.1994. 4. During the investigation, police also took into possession letter Ex.PA alleged to have been written by Paras Ram and Tek Chand @ Tulku who were earlier involved for the murder of Dalip Kumar and also a suicidal note Ex.PW.21/B alleged to have written by Hiru, who was also implicated with them, wherein he questioned the fairness of investigation and expressed his suspicion on Bihari Lal. 5. Police on the strength of the above fresh evidence filed another challan against the respondents before the trial court for the offence aforesaid. 6. The learned trial court disbelieved the statement of Parwati (PW.2) and also held that letter Ex.PA and the alleged suicidal note Ex.PW.21/B are not the reliable evidence. 7. Sh.R.K.Sharma, learned Senior Additional Advocate General for the State vehemently argued that the learned trial court did not appreciate the evidence of the prosecution in right perspective. According to him, the statement of Parwati (PW.2) is worth inspiring confidence, which is duly corroborated by letter Ex.PA and suicidal note Ex.PW.21/B. Thus, there are grounds to convert the acquittal into conviction. 8. Contra, Mr.Rakesh Dhaulta, learned counsel 4 appearing for the respondents supported the impugned judgment of acquittal and submitted that the learned trial court has taken note of the above evidence placed before it and after its critical examination came to the right conclusion that the case against the respondents for the offences charged, is not made out. 9. We have given our thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. 10. As a matter of fact, it is not the quantity but the quality of evidence, which weights in a case. Further the conviction of the accused can also Madan Lalbe sustained on the sole testimony of a witness, provided it inspires confidence. 11. The instant case, mainly hinges upon the statement of Parwati (PW.2). Admittedly, Tek Chand alias Tulku, who was an accused earlier in the same case was discharged but he had illicit relations with Parwati (PW.2) aforesaid. Although, during the trial, she stated that she alongwith her Paramour Tek Chand had seen respondents including Hiru having brought Dalip Kumar out of the house of Dabar, wherein Bhima also used to reside and stated that Dalip Kumar was physically lifted by these three persons and carried to a tap near the road. The tap was opened to wash the blood and then body of Dalip Kumar was placed near the curve on the road side. Pertinently, PW.5 Tek Chand alias Tulku did not support this version. Rather he stated that he did not know till date as 5 to who had killed Dalip Kumar. Further PW.2 gave an unconvincing statement that on 13.7.1991 Dalip Kumar, during the noon time, came on the motorcycle with one Sharma and asked for the illicit liquor, but she did not have. Thereafter, Dalip Kumar parked his motorcycle near the house of Premi and came to her. The pillion rider Sharma, left for village Pangana. Dalip Kumar expressed his desire to have a sex with her, to which she refused. In the mean time, Bhima also came there. Parwati went away to milch the cow. Thereafter Bhima came to her in the cow-shed and canvassed for him and asked Parwati to marry Dalip Kumar again she refused. She went on saying when Bhima returned and joined the company of Dalip Kumar, thereafter, Tek Chand her paramour came there to the place where motorcycle was parked and started fiddling it. Bhima asked them not to play mischief, on this Tek Chand and Paras Ram left that place and Bhima also went away. Around 4.00 P.M., Parvati went to the house of respondent Dabar to watch the movie on television. Hiru came there. He called her out side and demanded illicit liquor from her, and told she did not have. On this Hiru spared ` 15/- and asked her to get liquor from Bhima. She went inside and returned the amount to Hiru as it was not available. During this time, when she was watching television, Dalip Kumar was standing out side on the road. When she returned to her house, her father was present there and told her to prepare food. Tek Chand had asked her to come to the orchard of Dabar, where he would meet her 6 near the electricity pole. After taking meals she escaped from her house and joined the company of Tek Chand. She stated that they had sexual intercourse in the orchard thereafter they sat near the curve in front of the orchard, from where she saw Hiru and Dalip Kumar sitting on the curve on the road. Bihari Lal, respondent, came on his motorcycle from Thanda-Pani. After the motorcycle had passed, Dalip Kumar and Hiru went to the house of Dabar. Both Tek Chand and Parwati intended to spend the night in the house of Paras Ram as the house of Tek Chand was far away. On the way they sat on the side of nullah near the house of Dabar. Both of them heard the sound of “Maara Maara”. The cries were of a male person. According to her, she could recognize the voice. It was that of Dalip Kumar. They were sitting at a distance of 10-15 feet away from the house of Dabar. They got scared and did not go to the house of Paras Ram. Parwati insisted upon Tek Chand to leave her house. He asked her to wait till Bihari, Dalip Kumar and Hiru come out and then only they would go. According to her, Bihari had caught Dalip from the shoulders Dabar and Hiru had held Dalip Kumar from his legs and they carried Dalip Kumar towards road side. All three of them placed the body of Dalip Kumar under the tap. The water tap was opened to wash the blood. They then carried the body and placed it on the road. Admittedly, it was complete dark, but she stated that she was able to recognize the respondents as it was moon lit night. On seeing this, she went to her house. Thereafter, Hiru 7 came to her house, after sometime, he woke up her father and asked him to bring Dalip Kumar, who was lying out side his house, but he refused. Thereafter, Hiru slept on the cot of her father and her father in turn slept with her brother. Hiru left for his house in the morning. This is the entire story unfurled by her after three years and the said incident as aforesaid. 12. Said witness was subjected to a lengthy cross- examination. She stated that she joined the company of her paramour, during the fateful night, around 11.P.M., she had spent one hour under the electricity pole. After hearing the cries “Maar diya Maar diya”, they kept on sitting at a some distance on the side of nullah for about one hour. She could not tell the time when the dead body of Dalip Kumar was brought out by the respondents. She also admitted that it was apple season and the traffic used to pass on the road, and that there was steep nullah, where dead body was found. She admitted that Tek Chand and her father were arrested in this case for the murder of Dalip Kumar and they remained in the custody for 14 days. She also stated that during those days, when her father in the police custody, they did not tell about the incident to any person including the police as she was scared. When her father was arrested in the case, Bihari Lal and Hiru, both were also in the custody of the police till such time, her father also remained in custody but Dabar was not arrayed as an accused. She admitted that Dabar did not 8 threaten her not to disclose about the incident to any one, but according to her, it was only Bihari Lal, who had threatened her and out of the fear, she did not disclose about this incident to any one. It is pertinent to note that when her father was in custody, Bihari Lal was also in police custody, therefore, there was no question of threatening by respondent Bihari Lal. Thus she could have conveniently reported to the police about the said incident. 13. Surprisingly, when she (PW.2) reached her house, during the night, after parting with the company of her paramour and even on the next day, she did not disclose about the incident to her father. Even when her father was in custody she did not try to inform the police for about three years about the actual incident. She kept silent and it is not understood what prompted her to make statement before the police after such a long delay to the police that too on reinvestigation of the case. 14. As already stated above, the evidence of sole witness, if inspires confidence, can be acted upon. But in the instant case this witness has not behaved in a natural way, rather exhibited herself to be unworthy of any credit. Further the delay in making statement itself remained unexplained and is thus fatal in the given circumstances. As a matter of caution, when we intend to seek corroboration from other source, we find that even her paramour Tek Chand alias Tulku also did not lend support to her version. Therefore, we find it difficult to 9 place any reliance upon her statement. Also there is no plausible explanation about her silence for such a long time. In view of this we are constrained to hold that PW.2 is not a truthful witness. The excuse put forward by the said witness that she was threatened by Bihari Lal not to disclose anything about the incident is also incorrect. Thus, her testimony cannot at all be relied upon to convert the acquittal into conviction of the respondents. 15. Further, we also find a sharp contradiction in the prosecution case. PW.11 Chuhru Ram, who was residing near the house of Dabar and Bhima stated that he alongwith Dalip Kumar was taking liquor around 8-8.30 P.M., and asked him to bring a bottle of liquor from Pangana, to which he brought and when all were consuming liquor around 8.00 P.M., his wife came there and took him to his house. Whereas, Dalip Kumar, deceased, kept on sitting with Dabar etc., whereas, PW.14 Shamsher Singh (I.O.) admitted after referring to the ziminis that both Dalip Kumar and Hiru were seen going towards the house of Devi Ram, which means the deceased was last seen with Hiru and pertinently, in his cross-examination, this witness also stated that there was no water tap near the place where the dead body was lying. Therefore even this version, given by PW.2, that respondents after carrying the body of Dalip Kumar from the house of Dabar, kept the same under the tap for washing the blood stains,is proved to be false. 10 16. Not only this, PW.6 Tula Ram also stated that on the day of alleged incident, he was playing cards in the house of Premi Ram. Devi Ram and Keshav Ram were also with him. Around 5-6 boys including Tara Chand came to him and told that some drunkards were fighting on the road. When they went to the place, they saw Hiru and Chuhru were sitting on the road. Dalip was lying on the road. They asked him to take liquor, but he refused. Now this part of the story propounded by the prosecution shows that Dalip Kumar was last seen in the company of Tek Chand, Paras Ram and Hiru. Whereas, PW.18 the then SHO Ravinder Singh stated that during his investigation, he recorded the statement of truck driver Mohan Singh and in his statement, wherein he stated that when he was passing through the road at about 11.00 P.M., in the night, he found Hiru at the place where dead body of Dalip Kumar was lying but said Mohan Singh was not examined as a prosecution witness in this case. This part of the story of the prosecution, in contrast to the statement of PW.2, is also self destroying and the prosecution story lacks probity. 17. The second circumstance is the letter Ex.PA written by Paras Ram and Tek Chand alias Tulku to the mother of the deceased implicating Bihari Lal when they were facing trial for the murder of Dalip Kumar. Through this letter they expressed their desire to meet her to give her right direction as she was unnecessarily going here and there. The letter reveals that they made allegation against the police that they 11 had spoiled the case after taking money. They also informed her that they would be acquitted for want of evidence but they felt that the real culprits should be brought to book. This letter further says that they were willing to give evidence against Bihari Lal and they expressed their intention to help her. There is a mention in the letter that when they stated against Bihari Lal, they were beaten up by the police. In nutshell it says that they knew who had actually murdered Dalip Kumar, but the police was not doing anything, rather they gave them thrashings. PW.9 Paras Ram did not corroborate this version of Tek Chand. He disowned having written this letter but otherwise also we did not find that this letter implicate any of the respondents. This letter also makes a reference that they had also disclosed about the real culprits to Moti Ram and the police did not act upon it but when Moti Ram was examined, he did not support this version. Therefore, the letter (Ex.PA) is of no consequence. 18. The last circumstance is the suicide note Ex.PW.21/B alleged to have been written by Hiru while committing suicide says that he no longer could bear the torture and beatings of the police and he stated to have consumed poison. The narration, made therein, only expressed his suspicion over Bihari Lal and requested the police to investigate the case properly as he was earlier informed by Dalip Kumar that Bihari Lal was nourishing grudge against him. This suspicion, expressed by him in the 12 suicidal note, cannot take place of proof nor it could be made basis to connect the respondents with the offence charged. 19. After having scrutinized all the three pieces of evidence, as put forth by the prosecution for the consideration of the Court for the aforestated reasons we did not find that these are conclusive in nature and worth inspiring confidence at all. The statement of alleged eye witness, namely, PW.2 Parwati is biased and she exhibited herself to be utmost untruthful witness. Since, we find that the finding arrived at by the learned trial court are borne out from the record, it requires no interference. The State appeal sans merit, hence dismissed. 20. The respondents are discharged of their bail bonds entered by them at any time during the proceedings of this case. Send down the records. (R.B. Misra) Judge December 3, 2010 (Surinder Singh) (Purohit) Judge