IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 681 of 1996. Decided on: 04.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Parma Nand. …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent : Mr. Ashwani K. Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 28.02.1996, delivered by the learned Additional Sessions Judge, Mandi in Sessions Trial No. 31 of 1995, whereby the accused has been acquitted of having committed an offence punishable under Section 302 of the Indian Penal Code. 2. Briefly stated, the facts of case are that deceased Smt. Manvari was married to the accused Parma Nand. On 19.05.1995, a telephonic message was received at Police Station Sundernagar from the Sundernagar hospital to the effect that Smt. Manvari had been brought to the hospital and that she was dead. Immediately thereafter, the Inspector/S.H.O. went to the 1 Whether the reporters of the local papers may be allowed to see the judgment?Yes. hospital. Statement of PW-1 Smt. Hima Devi, mother of the accused, was recorded under Section 154 of the Criminal Procedure Code. In this statement, she stated that her son was employed in the B.S.L. Colony. According to her, her son used to beat his wife Manvari and for the 5-6 years, he had been repeatedly beating her. According to her, her son, the accused Parma Nand, harboured a suspicion that his wife Manvari was having illicit relations with the brother-in-law of the accused. On 18.05.1995 also, the accused Parma Nand had abused his wife. On the previous day, i.e., 18.05.1995, the complainant Smt. Hima Devi (PW-1) alongwith deceased Manvari, her daughter and son-in-law went for threshing wheat and came back in the morning at about 4:00 A.M. Thereafter, they took meals and went to sleep. Hima Devi (PW-1) woke up at 8 A.M. After she had milked the cow, she went to the kitchen and saw that Manvari was lying in the kitchen with an injury on her head. In the meantime, her son, accused Parma Nand, came out from the kitchen and without asking anything, he went away. Thereafter, Hima Devi came out and told one Amro that Manvari was lying in the kitchen and she had been murdered by accused Parma Nand. Thereafter, Hima Devi raised a hue and cry and many persons from the village gathered there and took Manvari to the hospital, where she was declared to be brought dead. 3. On the basis of this report, F.I.R. No. 138 of 1995 was registered. The Police carried out for their investigation and as per this investigation, it was found that the accused Parma Nand had murdered his wife. He was accordingly challaned and charged with having committed an offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed trial. After trial, he has been acquitted. Hence, the present appeal. 4. We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General and Mr. Ashwani K. Sharma, learned counsel for the accused. 5. Admittedly, this is a case where there is no eye witness to the murder of deceased Manvari and the whole case of the prosecution is based on circumstantial evidence. The circumstances, on which the prosecution relies, are; (i) the complaint made by the mother of the accused Smt. Hima Devi; (ii) the extra-judicial confession, allegedly made by accused Parma Nand to PW-2 Shri Sudagar Singh, Assistant research Officer, B.S.L. Project Sundernagar and PW-3 Sh. R.C. Tandon, Research Assistant, B.S.L. Research Laboratory, Sundernagar; and (iii) the last circumstance relied upon by the prosecution is the fact that according to the prosecution, the relations between the accused Parma Nand and his wife Manvari were strained for the last many years. 6. As far as the first circumstance is concerned, Smt. Hima Devi (PW-1) while deposing on oath in court, resiled from her previous statement recorded under Section 154 of the Criminal Procedure Code and was declared hostile. According to her testimony in court, in the morning she found Manvari lying in the kitchen with an injury on her head. In Court she stated that Parma Nand was not there nor she saw anybody coming out of the kitchen. She also denied that Parma Nand had ever abused or mis-behaved with deceased Manvari in her presence. After being declared hostile, she has been cross-examined at length by the prosecution. She admitted that she thumb marked the statement, but denied having made the relevant portion of the statement Ex.–PA to the Police. 7. Admittedly, even as per the prosecution, at the relevant time, Dimple a grown up daughter of the accused and the deceased was also present in the house. She has not been examined and according to the prosecution, she and her grand mother Hima had conspired to tell lies in court to save accused Parma Nand. The non-examination of the daughter also casts a doubt on the prosecution version. It may be true that the daughter may not tell the truth to save her father, but, on the other hand, why should we expect that the daughter will tell lies to protect her father who had murdered her mother? Such a witness should have been examined in court and it should have been left for the court to judge whether this witness was telling truth or not. Merely stating that she was won over, is not sufficient and her non-examination can only help in raising a presumption that she would not have spoken in favour of the prosecution. The first circumstance, therefore, has not been proved by the prosecution. 8. The second circumstance is the alleged extra- judicial confession made by the accused Parma Nand before PW- 2 Shri Sudagar Singh and PW-3 Shri R.C. Tandan. Both these witnesses have denied that the accused ever made an extra- judicial confession to them. According to them, the accused Parma Nand was already on leave for 2-3 days and on the date of the occurrence, he again came requesting for leave and these two witnesses asked him to make a formal application for grant of leave. Meanwhile, the Police came on the spot and informed Parma Nand that his wife had been taken to the hospital and they took him also to the hospital. These witnesses denied that they were examined by the Police or ever made a statement to the Police to the effect that the accused had made an extra- judicial confession before them. Both these witnesses are officials in the Research Laboratory of the B.S.L at Sundernagar. There is no reason to doubt their statements. Therefore, the so- called extra-judicial confession also does not stand proved. 9. To prove the third circumstance, i.e., the strained relations between the husband and wife, the prosecution examined PW-4 Smt. Bimla Devi, sister-in-law of the accused, PW-5 Shri Paras Ram, Pradhan of Gram Panchayat Upper Behli, PW-7 Shri Amar Singh, neighbour of the accused, PW-8 Shri Niku Ram, a close family friend of the accused and his family and PW-9 Shri Prem Lal, son-in-law of the accused. 10. PW-4 Bimla Devi only stated that on 19.05.1995, her mother-in-law, PW-1 Hima Devi told her that Manvari is lying in an injured condition in the kitchen. According to this witness, accused never murdered his wife. In cross-examination by the prosecution, she denied having made a statement to the effect that the accused used to ill-treat his wife or he suspected his wife of having illicit relations with his brother-in-law. In cross-examination, a suggestion was put by the prosecution itself that the married daughter of the deceased and the accused Dimple was also present in the house that night. 11. PW-5 Paras Ram is the Pradhan of the Gram Panchayat. According to him, on 19.5.1995, at about 7-8 A.M., he came to know that some fight had taken place in the house of the accused and when he went towards the house of the accused, he came to know that the injured person had been taken to the hospital. By the time he reached hospital, Manvari had already expired. This witness is also a witness to the recovery of the iron rod and some pieces of bangles and one ear ring, which were lying in the kitchen. This witness also stated that at one time Bardu, father of Manvari, had complained to him that the accused is quarrelling with his daughter and thereafter, he and Beli Ram had interceded in the matter. They had advised accused Parma Nand to behave properly, who had assured that in future, he will cooperate with his wife. In cross-examination, he stated that he could not name the father of Manvari since he did not belong to that Panchayat. In cross-examination, he also stated that deceased Manvari told him that the accused Parma Nand was levelling allegation that his wife had illicit relations with his brother-in-law. Surprisingly, he stated that he never told this fact to the Police when investigation was conducted. This witness has made various improvements and has stated certain things in court which do not find mention in his statement recorded under Section 161 of the Criminal Procedure Code. Therefore, his evidence has to be scrutinized with great care and caution. 12. PW-7 Amar Singh has not supported the prosecution version. According to him, he was informed by his aunt about the fight or quarrel between Parma Nand and his wife Manvari. According to him, he was asked by PW-1 Smt. Hima Devi to bring a taxi to take Manvari to the hospital. This witness was cross-examined, but he stuck to his version and denied that he made a statement to the Police that on the previous night Parma Nand had taken liquor and abused Manvari. 13. PW-8 Niku Ram also turned hostile and denied that any quarrel took place between Parma Nand and Manvari. 14. PW-9 Prem Lal is the son-in-law of accused Parma Nand. He and his wife Dimple were in the house of the accused at the time when the death of Manvari took place. He has denied that any altercation took place between his mother and father- in-law. This witness was also declared hostile. 15. PW-10 Dr. Arun Kumar Mishra has clearly stated that the deceased Manvari died as a result of the head injury suffered by her. There can be no quarrel with the case of the prosecution that Manvari was murdered, but who killed her is the most important question. In a case of circumstantial evidence, the prosecution must prove all the circumstances, which it relies upon and link them in such a fashion that they lead to only one hypothesis, i.e., the guilt of the accused. In case there is a possibility of the accused having not committed the crime or the hypothesis does not exclude the chance of any other person committing the crime, the benefit has to go to the accused. In the present case, the motive ascribed was the strained relations between the accused and the deceased, which has not been proved on record. The prosecution has also failed to prove that the accused suspected his wife of having illicit relations with her brother-in-law. The prosecution has also miserably failed to prove that accused was seen coming out of the kitchen. None of the prosecution witnesses had supported the prosecution case. It has been urged on behalf of the State that these witnesses have turned hostile because of their relationship with the accused. Even if that be true, we cannot convict the accused on an assumption that the witnesses have turned hostile to help the accused. The prosecution has to stand on its own legs and prove its case beyond reasonable doubt. Since the prosecution has failed to do so, we have no other option, but to up-hold the judgment of acquittal recorded by the learned trial court. The appeal is accordingly dismissed. The bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 04, 2010. (bhupender)