IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 170 of 1996 Date of Decision : March 8, 2010 State of H.P. …Appellant. Versus: Sant Ram & Others ………....respondents-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondents : Mr. H. S. Sal, Advocate with Mr. D. R. Sood, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 23.12.1994 delivered by the learned Additional Sessions Judge, Solan, H. P., whereby the respondents-accused have been acquitted of having committed offences punishable under Sections 302, 201 read with Section 34 IPC. The undisputed facts are that deceased Savitri Devi was married to accused Sant Ram. They had been married for about 20 years. She died on 17.7.1993 and was cremated on 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the same evening. Her brother PW-1 Prem Lal allegedly reached the cremation ground at about 10.30 p.m. and the cremation was being done at that late hour. He then questioned the accused Sant Ram as to what had happened. Accused Sant Ram told him that he had done what he wanted to do. It is also not disputed that for about 8 to 10 years after the marriage, accused Sant Ram lived in his native village Bhanoun. Thereafter his aunt’s husband (Gopi Ram) who had no male issue asked him to settle at village Luna. Accused Sant Ram settled down there and Gopi Ram transferred his land in favour of accused Sant Ram. For about 3-4 years accused Sant Ram lived alone at village Luna along with Gopi Ram’s family. After this period, his wife Savitri Devi and children also started residing at village Luna and settled down there. According to Prem Lal prior to the death of his sister deceased Savitri Devi had complained to him that the accused Sant Ram was ill-treating her and making false allegations of adultery against her alleging that she had illicit relations with one Hira Singh. He thereafter went to the village of the accused, met his sister and advised them to live like a happy couple. 15 days later the death occurred. Since he suspected that the deceased had been burnt to death by her husband, therefore, he lodged a complaint with the police. The dead body had been cremated, therefore no postmortem could be done and as such it was not possible to ascertain the exact 3 cause of death. The prosecution case hinges upon the statement of the brother and the mother of the deceased that the deceased was ill-treated by her husband and had been killed by him. According to PW-1 Prem Lal, 15 days prior to the date of occurrence, a man named Puran Chand was sent by his sister and a message was sent to him that he should immediately meet his sister. Next day, this witness went to the village of his sister where in the presence of accused No.1, she complained that false allegations of unchastity were being levelled against her. She made other complaints also and he asked them to live happily. He stayed the night there and returned the following day. After about 15 days, one Tara Chand s/o Vaid Chinta Mani came to his residence in village Khairi and informed him that Veterinary Doctor of village Chauni had told him that his sister had expired. He thereafter went to village Luna on 19.7.1993, and on the way he met Nikku. They went straight away to the cremation ground and saw that the dead body of his sister was being cremated by the accused and other villagers of village Luna and an altercation took place between him and his brother-in-law. His brother-in-law informed him that he had done what he wanted to do. In cross-examination he admits that his sister was suffering from tuberculosis for about 2-3 years. He also states that he is not sure whether he went on 17.7.1993 or 19.7.1993. He has been confronted with the report Ext.PA 4 recorded under Section 161 Cr.PC at the Police Station Ram Shehar. In the said statement, there is no allegation that his sister had been complaining about being tortured for about 2 years. In fact Puran Chand who acted as a messenger for the sister is one of the accused in the case. There is an important contradiction in his statement. In cross-examination he states that he had not mentioned to the police that Tara Chand informed him about the death of his sister. According to him, he was, in fact, in Chandigarh and Tara Chand had only informed his family members about the death of his sister. There is no explanation as to how and when he came to know about the death of his sister. Whereas in the statement Ext.PA, it is recorded that he had informed the Pradhan of the Panchayat about the death of his sister, in Court he states that he never made such statement. There are other contradictions also but they are minor. Most of the other witnesses have turned hostile. It is proved on record that accused Sant Ram was working with the H.P. State Electricity Board and was posted at village Manlog Kalan and used to go to his place of work from village Luna every day. PW-2 is the shop keeper from village Manlog Kalan. He has turned hostile. According to him, he did not supply any Kerosene to Sant Ram or Sham Lal for lighting the pyre of the deceased. He in fact states that on 17.7.1993, the date of occurrence, accused Sant Ram came to his shop and marked his 5 attendance in the register which remains in his shop. At about 3.00/3.30 p.m., a message was received that wife of Sant Ram was seriously ill. Sant Ram was not present in the village at that time, since he had gone to attend to an electricity complaint. He returned at about 4.15 p.m. and was given the message and then Sant Ram left for the village. PW-3 is co-villager of Sant Ram. He states that at about 4.00 or 4.30 p.m. he heard Puran Chand stating that Savitri, the wife of Sant Ram had expired. Then all the villagers gathered at their house and took the body of the deceased to the cremation ground at about 5.15 p.m. It was raining very heavily and therefore, the lighting of the pyre was delayed till about 7.15 p.m. PW-4 also turned hostile. PW-5 Sararu Devi is the widow of Gopi Chand. According to her, at about 12.00 noon deceased Savitri Devi complained of severe pain in her throat and then expired. She further stated that Sant Ram was called from his place of duty and he returned at about 2.00 p.m. and by that time Savitri Devi had already died. She was declared hostile and cross-examined by the Public Prosecutor. She denied the suggestion that the accused Sant Ram used to beat the deceased. PW-6 Smt. Kalawati is the mother of Savitri. According to her, Savitri had complained to her that her husband used to beat her. She has no personal knowledge about the cause of death of the deceased. She however admits that the 6 deceased was under treatment at the TB hospital at Dharampur. PW-11 Thakur Dass is also a resident of village Luna. He also turned hostile and despite being cross-examined did not support the prosecution case that the accused Sant Ram made a statement to the police that he had burnt the deceased. PW-12 Shankar Lal is an uncle of the deceased. According to him, Sant Ram was harassing his wife for a long time since he suspected her of adultery. On the date of occurrence, he was informed by the Veterinary Doctor at about 7.30 or 7.45 p.m. that Savitri had died. They then proceeded to the village of Sant Ram along with Prem Lal PW-1, Sawan Singh and Gian Chand. When they were passing by the cremation ground, they noticed that the dead body was being cremated. The accused persons were all there. One of the children had informed them that his mother had been burnt. In cross-examination he states that village Kheri is at a distance of 7/8 kms. from the village of Sant Ram and that the name of Veterinary Doctor who informed them about the death of Savitri Devi is Puran Chand. PW-16 is the aunt of Savitri Devi, who states that Savitri Devi had complained to them that her husband was quarrelling with her. There is no eye witness to the occurrence. There is no direct evidence about the murder. The case is based on circumstantial evidence. The only motive which the prosecution ascribes to is that the accused No.1 suspected his wife of infidelity and therefore wanted to kill her. Assuming here for the 7 sake of arguments that this motive stands proved, the law is clear that when the case is based on circumstantial evidence each circumstance must be proved in such a manner that all the circumstances are linked to each other and the entire chain of evidence leads to only irresistible conclusion that the accused alone could have committed the offence and none else. There are a lot of infirmities in the prosecution case. The first and foremost infirmity is that it has not been proved that the deceased was actually murdered. The cause of her death has not been proved. It is true that some allegation has been made that she was burnt to death but none of the witnesses have supported this aspect of the case. According to the prosecution the deceased and the accused had got married 20 years back. Though it is not clear that what is the age of the children, but they must be reasonably grown up. If one of the children had informed the villagers that his mother was burnt, he should have been examined in Court. The child was never examined in the Court. Therefore, the prosecution has miserably failed to prove that the deceased was burnt to death. PW-1 is the star witness of the prosecution. He is the brother of the deceased. His statement is full of inconsistencies. Firstly he states that Tara Chand came and informed him about the death of his sister. However, when cross-examined he states that in fact Tara Chand had only informed his family members and he was at Chandigarh. He gave no explanation that when he 8 went to Chandigarh and at what time he came to know about the death of his sister. The second serious infirmity in the statement of the witness, which makes the statement of this witness unreliable, is that according to this witness after returning from the cremation ground at Luna they came back to their village and next morning he went to Police Station, Ram Shehar and lodged a report about the death of his sister with the police at 8.30 a.m. This is not supported by the statement of the Investigating Officer. He states that he received information about the death of Savitri Devi and recorded the same at Sl. No.7 on 18.7.1993 vide Ext.PU. A perusal of Ext.PU shows that the information was received from PW-15 Sawan Singh who had been sent by PW-1 Prem Lal to inform the police. This belies the statement of PW-1 that he himself had gone to the police. This is also apparent from the fact that the statement, Ext.PA, of Sant Ram was recorded at 3.00 p.m on 18.7.1993. If in fact Prem Lal had gone to the police at 8.30 a.m., then his statement would have been recorded immediately and on the basis of his statement the FIR would have been lodged. The only other circumstance which is being used against the accused is that the cremation was being done in the late hours of the night which is against the custom prevalent in this area. However, all the witnesses have in one voice stated that the dead body was taken to the cremation ground at about 5.00/5.30 p.m. but the pyre could not be lit since it was raining 9 heavily. This is a plausible explanation. According to the witnesses the pyre was lit at 7.00 or 7.15 p.m. In the month of July, the sun would not have set by this time. Thereafter it would take a long time for the body to be consumed by the fire. Therefore, the pyre was still burning at about 10.00/10.30 p.m. Even if this allegation is accepted to be correct this does not strengthen the prosecution case. It has also come in evidence that it is the uncle of the deceased who lit the pyre. The uncle of the deceased would not side with the accused. In view of the above discussion, we find no merit in the appeal. The learned trial Court rightly acquitted the accused. The appeal is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 08, 2010. (rana)