IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 344 of 2003 Date of decision: 07.12.2011 State of Himachal Pradesh … Appellant Versus Ram Dayal son of Shri Lal Singh, resident of Kufri (Jhakadwas) Illaqua Dhungha, P.S. Sadar, Mandi, H.P. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. G.R. Palsra, Advocate. Per V.K. Ahuja, J. (Oral): This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr. P.C. against the judgment of the Court of learned Additional Sessions Judge, Mandi, dated 22.4.2003, vide which he acquitted the respondent of the charge framed against him under Section 302 I.P.C. 2. Briefly stated, the facts of the case are that on 27.6.1996, at about 9.40 P.M., a rapat was lodged at Police Station Sadar Mandi, by one Gangveer Singh accompanied by Budhi Singh, nephew of deceased Krishna, that today in the morning he had come for work as a labourer in the forest in village Jhakarwan Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 alongwith other labourers. He alleged that he was knowing Krishna Devi wife of respondent. At about 3.10.P.M., an altercation took place between the respondent and his wife Krishna Devi, deceased, who was asked her that she does not do the household work and remains sleeping and he has to clean the utensils also. It was alleged that the respondent was giving beatings with a Danda to Krishna Devi and he and Budhi Singh advised the respondent not to give beatings. He gave two Danda blows on the person of the deceased and left his wife. Thereafter, he and Budhi Singh went for their work. At the work, he informed other labourers also, who told him that it was a dispute between the husband and wife and they should not involve themselves in it. He further stated that thereafter again he heard the noise of quarrel and he alongwith Budhi Singh went to the spot and saw that the respondent was dragging the deceased from her hair and on seeing them, the respondent left the deceased. The deceased went inside the room and ate something and when she came back she was having poison bottle in her hand. He and Budhi Singh verified about the bottle and learnt that it was a poison bottle. Budhi Singh threw the bottle in the Nullah and Krishna Devi went inside the room. Budhi Singh informed the respondent that his Bua (aunt) has taken the poison and he told him that let her die. One Hirda Ram reached there at the spot and saw the deceased who was crying and she died within 2-3 minutes. On this report, a case was registered. Postmortem on the body of the deceased was conducted and on completion of the investigation, the challan was filed in the Court of learned Chief Judicial Magistrate, Mandi, who committed the case to the Court of learned Sessions Judge, who assigned the case to the Court of 3 learned Additional Sessions Judge, who tried the respondent as detailed above, leading to his acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the report lodged with the police, it is clear that complainant Gangveer Singh PW-2 had made reference to two occurrence, one about 3.10 P.M. when the respondent was quarrelling with the deceased giving her beatings with a Danda and after sometime, again there was a quarrel and the deceased was being dragged by hair and she took some poisonous tablet. 5. To substantiate these allegations, PW-2 Gangveer Singh has stepped into the witness box. He stated that he alongwith Budhi Singh had gone to work in the forest nursery, situated near the house of the accused. Many persons were present in nursery work including two daughters of the accused. He stated that at about 9.30 A.M., they felt thirsty and came to the house of the accused, where the accused and his wife were only present. They took water and the accused asked them to take lunch with him at about 1.00 P.M. Thereafter, at about 1.30 P.M., both of them reached at the house of the accused and the lunch was not ready. They waited and after sometime at 2.15 P.M., they took lunch. He further stated that after about half an hour when they were present in the courtyard, the deceased came out from the kitchen and he noticed a bottle of poison in the hand of Krishna Devi, which was snatched by Budhi Singh. Thereafter, he noticed some froth from her mouth and Budhi Singh informed the accused that Krishna had taken poison and the accused gave deceased some mixture, so that she could vomit, but she died within 15 minutes. In his statement he has no where 4 made a statement to any quarrel taking place at 3.10 P.M. when he visited the house for the first time. His statement shows that he had gone there in the morning, were invited for lunch and they took lunch in between 1.30 P.M. and 2.30 P.M. and he does not make a reference to any beating with Danda or pulling out the deceased from her hair or any altercation taking place in between the respondent and the deceased. The complaint was that the deceased was not doing the household work. On the other hand, his statement shows they were invited for lunch, which was served by the deceased and she came out and she was having poison bottle in her hand. There is no mention of any altercation, quarrel or any dispute in between the husband and wife. 6. The other witness, namely, Budhi Singh, who was also with the complainant at that time, was given up by the prosecution as having been won over by the accused. He was a material witness and rather the only eye witness to the occurrence, who was the nephew of the deceased and he should have been examined by the prosecution, so that he could withstand the test of cross-examination in Court and then only an opinion could be formed as to whether he has deposited falsely or truthfully. However, the prosecution gave up this witness, who was one of the two eye witnesses and the Court is left with statement of PW-2 Gangveer Singh, who did not support the assertions made in the complaint lodged by him with the police. 7. PW-1 Khem Singh is the elder brother of the deceased, who had stated that he had never heard anything adverse in the relationship of deceased and accused and he never heard anything unusual. He learnt from his son Budhi Singh that his sister had died 5 in the house of the accused after consuming poison, but he did not tell as to why she took poison. Thus, it is clear that even the brother of the deceased has not supported the prosecution. He was declared as hostile and was allowed to be cross-examined by the learned P.P. for the State. In cross-examination, this witness has stated that the deceased had kept cattle and was looking after the same and was doing the entire job of cattle, bringing the wood and grass from jungle. He also stated that relations in between the deceased and the accused were good and they never quarreled. 8. Apart from the above, the prosecution had also examined PW-4 Dr. J.N. Chauhan, Medical Officer, who conducted the postmortem on the body of the deceased. He found multiple semicircular grazed abrasions in neck on the right side and tow grazed abrasions on outer end of right clavicle over shoulder. There were multiple abrasions on the left elbow, right leg, right knee and other parts of the body. According to the opinion of the Medical Officer as given in postmortem report Ext. PW4/D, the deceased died due to Asphyxia as a result of manual strangulation. He stated that in view of the injuries found on the body of the deceased and absence of poisonous substances in the chemical analysis report, he gave this as a cause of death. In cross-examination, he stated that the injuries in question are possible if a person falls from the height of 15 feet to 20 except Injury No. 1, which can be caused by sharp wood, but it is very rare. 9. The opinion by the Medical Officer was given since no poisonous substance was found as per the chemical analysis report and there were some minor abrasions on the person of the deceased, he gave the opinion that it was as a result of manual 6 strangulation. There is nothing to substantiate his view as to how he concluded on examination of the body that it was a result of manual strangulation. He does not say that there were marks of hand around the neck or other factors, which could suggest that it was a case of manual strangulation. The evidence led does not substantiate this opinion of the Medical Officer and this opinion in itself is not sufficient to hold that it was the respondent who had strangulated his wife, since there is no corroborative evidence to the opinion of the Medical Officer. The learned trial Court had discussed the evidence in detail and had also observed that the samples were sent to the Chemical Examiner after lapse of two months and, therefore, had concluded that the possibility of tampering cannot be ruled out. 10. Keeping in view the above evidence, the net conclusion drawn by the learned trial Court that the prosecution has failed to prove its case, cannot be termed as perverse, calling for an interference by this Court. We, therefore, hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( Deepak Gupta ), Judge December 07, 2011. ( V.K. Ahuja ), (BSS) Judge