IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 438 of 2008. Date of decision: 25th November, 2009. Vijay Kumar and another .. Appellants. Versus State of Himachal Pradesh .. Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the Appellants : Mr. Anup Chitkara and Ms.Nidhi Chawla, Advocates. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surinder Singh, J (Oral). The appellants were tried and convicted, for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each, for committing the murder of Smt. Sandeepna, wife of appellant Angrej Singh and also to destroy the evidence of her murder. The appellants have challenged their conviction and sentence on law and facts in the instant appeal. __________________________________________________ Whether the reporters of Local Papers may be allowed to see the judgment ? Yes. - 2 - Background facts can be noticed thus. Appellant Angrej Singh was married about 12 years back to deceased, daughter of PW-13 Nikka Ram and from this wedlock she gave birth to two daughters and a son. The appellants were residing in village Ralwan in District Chamba, where they have joint property. It is alleged that the appellants had been picking-up quarrels with the deceased on one pretext or the other. Appellant Angrej Singh is stated to have constructed a new house in village Sagadu and he was employed somewhere outside. On 26.10.2006 at about 2.00 p.m., PW-13 Nikka Ram, father-in-law of appellant Angrej Singh, received a telephonic message from his son-in-law Angrej Singh that he was on leave and had visited his village and he would be there for 3-4 days. Since his daughter Sandeepna wanted to meet him, therefore, he should visit them. On the same day, Nikka Ram while going to the house of Angrej Singh, on the way met Angrej Singh and his brother Vijay Kumar around 6.30 p.m. Both of them were heavily drunk. PW-13 Nikka Ram asked them, as to where they were going. They told that his daughter Sandeepna had run away from home during noon time, therefore they were going to their old house, in search for her. - 3 - Nikka Ram reached old house of the appellants and remained there for about half an hour. On their return appellants told Nikka Ram that Sandeepna was not traceable, therefore, they would go to search her in their new house in village Sagadu. After sometime, they returned carrying Sandeepna on their back and laid her inside the room. Nikka Ram asked them as to what had happened to her. They informed that they did not know anything about it, but they found her near the new house. She might have consumed some medicine etc. Complainant felt that her body was cold and she was dead. He also noticed some injury marks on her face and neck. Her tongue was slightly protruded. Thus after observing the condition of the dead body Nikka Ram told appellants that she was killed by them, but they reacted and denied having killed her. It is alleged that appellants threatened him and told to do whatever he could do. Nikka Ram insisted upon the appellants to convene meeting of Panchayat and also to ensure the presence of elderly people, but they did not do so. Then he (PW-13) informed his family members and other relatives about the incident telephonically from the house of the appellants. Out of them, Karmo and Giaso (PW-11) had arrived there. They also - 4 - asked the appellants the cause of death. Next morning, at about 8.30 a.m. Panchayat members and some persons from his relations also arrived in the house of the appellants and informed Police Post, Sihunta with respect to the said incident. PW-12, Dy.S.P. Madan Lal was the then Inspector/SHO, Police Station, Chowari. He alongwith SDPO, Dalhousie and other police officials was present at Government Senior Secondary School, Chowari in connection with community police training, where he received telephonic information from ASI Narup Guleria, Incharge of Police Post Sihunta that the murder of one lady had taken place in village Ralwan. On this information, PW-12 returned to the Police Station and recorded a report in the daily-diary (Ext.PW-4/B) and then proceeded to the aforesaid village alongwith other police officials including PW-6 Constable Reeta Devi, where he recorded the statement (Ext.PW-12/A) of Nikka Ram under Section 154 of the Code of Criminal Procedure, which was sent for the registration of the case through Constable Yogesh Gurung. On the basis of the aforesaid Ruka, FIR Ext.PW-4/A was registered. PW-12, the Investigating Officer, Madan Lal, the then Inspector/SHO, prepared the site plan Ext.PW- - 5 - 12/B and also completed the inquest papers Ext.PW-12/C in the presence of PW-13 Nikka Ram and one Saran Dass. The photographs of the dead body were also taken. The dead body of Sandeepna was sent for the autopsy to Primary Health Centre (PHC), Sihunta with a request, Ext.PW-9/A, in writing. PW-9, Dr. Rahul Gupta had conducted the postmortem of the dead body on 27.10.2006 at 1.30 p.m. On the examination of the dead body, he noticed the following injuries on her person:- “1. There was contusion ante mortem with laceration present over right side of scalp behind right ear. 2. Multiple ante mortem bruises present over left side of face. 3. Ante mortem bruises over left eye lid. 4. Linear ante mortem abrasion over left side of neck sized 3x1 cm. 5. Contusion ante mortem present over nape of neck 4x4 cm in size. 6. Multiple ante mortem abrasion and contusion of mostly linear and circular shape present over throughout the body. 7. Ante mortem abrasion about 1 cm present over right labia majora. 8. Contusion ante mortem present over wrist. II. Cranium and spinal cord. - 6 - Scalp, skull and vertebrae. 1. Ante mortem contusion present over right side scalp behind right ear. 2. No fracture of skull seen. 3. C-4, C-5, C-6 vertebrae displaced. 4. Skull displaced from spine. 5. Ligament teared of spine. III. Membrane, brain, spinal cord. 1. Membrane and brain congested. 2. Spinal cord lacerated at level of C-4, 5, 6 vertebrae.” The doctor also noticed that walls, ribs, cartilages, pleurae, larynx, trachea, both lungs, pericardium heart and large vessels were congested. The doctor also noticed the dislocation of C-4, C-5 and C-6 vertebrae and displacement of the skull from spine. In the opinion of the doctor, the deceased had died because of neurogenic shock and further that the possibility of sexual assault could not be ruled out till the report of the FSL is received. The probable time that lapsed between the injuries and death was few minutes and between death and post- mortem between 24 to 36 hours. The viscera alongwith vaginal swab and pubic hair were handed over to the police for its forensic examination. The reports Ext.PW-3/B and Ext.PW-9/B revealed that no poison in viscera and no semen were found in the swabs. Thus the - 7 - doctor gave final opinion that the deceased had died due to ante mortem neurogenic shock. On 27.10.2006 the appellants were arrested and during the interrogation on 30.10.2006 appellant Vijay Kumar made a disclosure statement and got recovered an orange coloured Dupatta (Ex.P.1) and tongs [Chimta (Ext.P.2)], and took into possession vide memo Ext. PW-3/A in the presence of Mohinder Singh and Kavita Devi Pradhan. The investigating agency concluded that Smt. Sandeepna was given beatings with tongs and finally she was strangulated to death. Thus the Challan was presented in the Court against the appellants for the aforesaid offences. The appellants were accordingly charge-sheeted. They denied their guilt and claimed trial. To prove its case the prosecution examined its witnesses and the appellants also examined under Section 313 of the Code of Criminal Procedure. They pleaded innocence and alleged false implication in the case. They took up the defence that deceased might have died due to fall. When called upon to enter their defence, they examined DW-1 Shri Rashpal Singh, driver of the jeep. According to him, on 26.10.2006 appellant Vijay Kumar approached him and asked to accompany him as the wife of his brother (appellant Angrej Singh) had sustained injuries due to fall and requested him to take her to the hospital for treatment. On his request he went - 8 - there and carried her in his vehicle to the hospital. When they reached near Drum-Nalah, they came across the father of deceased (Nikka Ram). He stopped the vehicle. Nikka Ram checked his daughter and found her dead. Then she was taken to a house in village Drum-Nalah. The learned trial Court did not believe the defence version, but relied upon the prosecution evidence witnesses and the recoveries thus convicted and sentenced the appellants as aforesaid. We have heard learned counsel for the parties and have carefully reappraised the evidence on record. On scanning the evidence on record, we are of the view that the prosecution has not been able to prove the case against the appellants beyond a reasonable doubt. There is no direct evidence and the entire case hinges upon the circumstantial evidence, i.e., the alleged conduct of the appellants, extra judicial confession, recovery and medical evidence. PW-13 Nikka Ram, the father of the deceased proved his statement Ext.PW-12/A having been made to the police, but stated in cross-examination that on 27.10.2006 at about 8.30 a.m. the police had arrived at the spot and he had made the aforesaid statement immediately thereafter, whereas PW-12 Dy.S.P. Madan Lal stated that he reached the place of incident on the said date at 11.30 a.m. and then he recorded - 9 - the statement of said Nikka Ram. But, the perusal of said statement Ext.PW-12/A reflects that it was recorded at 1.30 p.m. on 27.10.2006 at village Ralwan and not at 8.30 a.m. or at 11.30 a.m. as stated by them. Further the Investigating Officer had made a request on the same day in writing Ext.PW-9/A to the Medical Officer, Sihunta (PW-9) for the autopsy of the dead body, while giving a reference to the statement of Nikka Ram having been recorded by him that the deceased was killed by the appellant Vijay Kumar a day earlier, i.e. 26.10.2006. The said request was received by the doctor. He had made an endorsement of date and time under his signature and official stamp, having been received at 12.15 p.m. on that day, meaning thereby the statement Ext.PW-12/A of PW-3 Nikka Ram recorded at 1.30 p.m. was not in existence. If that being the position, then where is the statement of Nikka Ram which was recorded earlier by the police at 8.30 a.m. or at 11.30 a.m. prior to moving the said application to the Medical Officer? Therefore, withholding of the said statement of Nikka Ram casts a serious doubt on the authenticity of the prosecution case. Also, we find that the statement of Nikka Ram was not recorded even at 1.30 p.m. as indicated in Ext.PW-12/A by the Investigating Officer camp at village Ralwan. The distance between the place of occurrence, i.e., village Ralwan and PHC, Sihunta is 35 kilometers, as stated by PW-6 Constable Reeta - 10 - Devi. She also stated that she joined the investigation of this case at 8.00 a.m. on 27.10.2006 is yet another dent in the prosecution case, whereas, Dy.S.P.Madan Lal (PW-12) stated that he alongwith other police officials reached the spot at 11.30 a.m., then it is not understood how Constable Reeta Devi was present at 8.00 a.m. on the spot and how she reached the Police Station and again accompanied Dy.S.P. Madan Lal, more specifically when the police itself came to know about the alleged incident at 9.30 a.m., as is evident from the copy of daily diary report Ext.PW-4/B. This mystery also remained unexplained. Further, the postmortem report Ext.PW-9/C reveals that the postmortem of the dead body was performed by the doctor on 27.10.2006 at 1.30 p.m. and the body was got identified from her father Nikka Ram (PW-13) and one Saran Dass. If Nikka Ram was present at 1.30 p.m. in the PHC, which is 35 kilometers away from the place of occurrence, then it is also not understood as to how the police recoded his statement at 1.30 p.m. on the same day at the spot in village Ralwan. Even the things do not rest here. There is also a reference in the application Ext.PW-9/A moved by the Investigating Officer to the Medical Officer of PHC, Sihunta that the dead body of Sandeepna was brought last night, i.e., 26.10.2006 by the appellants in a vehicle to their old house situated in village Ralwan and the inquest paper Ext.PW-12/C also makes a reference of this statement - 11 - of PW-13 Nikka Ram, but when he was examined in the Court he did not give even a fleeting reference about this fact, rather he disputed the said suggestion of having brought the deceased in a vehicle. Thus DW-1 Rashpal Singh can be said to have probablised the defence raised that the deceased had a fall, she sustained injuries and on the request of appellant Vijay Kumar, he took her to hospital in his vehicle as stated above and the prosecution has supported the very genesis of the true version. Further, the recovery of tongs and Dupatta as alleged is also not free from doubt. The appellants were arrested on 27.10.2006, whereas the alleged recovery was made on 30.10.2006 when they were interrogated by the police. But unfortunately neither Dupatta nor Chimta could be connected to link the appellants of the offence charged. Moreover, PW-7 Mohinder Singh witness to the recovery has denied the aforesaid recoveries having been made by appellant Vijay Kumar. Although, PW-9 doctor Rahul Gupta stated that the injuries which were found on the dead body could be caused by Chimta Ext.P.2, but in cross-examination categorically stated neither the deceased had died due to strangulation nor due to throttling and further stated that the injuries which were found on the person of the deceased could be caused due to fall from a tree or hillock. He further stated that if Chimta (tongs), Ext.P.2 is struck forcibly on the person, it would produce a different pattern of injury which would be longer in size, but if it is used - 12 - lightly it would not cause injuries as shown by him in the postmortem report. Another witness PW-8 Karam Chand denied that if appellant Angrej Singh had made any extra-judicial confession to him. The above position apart, the Investigating Officer (PW-12) also stated that he did not remember as to what evidence was collected by him to arrive at the conclusion that appellant Angrej Singh had helped his brother appellant Vijay Kumar in causing disappearance of the evidence of murder. He stated that Vijay Kumar had made a statement that on 26.10.2006 he had killed Sandeepna but this fact was not mentioned by him in any document or in the statements of any of the witnesses. Further, we find that statement Ext.PW-12/A made by PW-13 Nikka Ram to the Investigating Officer makes no reference about the maltreatment as alleged. The witness was duly confronted with the said statement in the Court. For the foregoing reasons, we do not concur with the findings of guilt and reasons therefor recorded by the learned trial Court. Therefore, we set aside the conviction and sentence passed against the appellants for the offences charged. Consequently, the appeal is allowed. The appellants are serving out the sentence awarded by the learned trial Court. - 13 - They are ordered to be set at liberty forthwith, in case their detention is not required in any other case. The Registry is directed to issue the release warrants accordingly. The appeal stands disposed of. ( Surjit Singh ), J. 25th November, 2009. ( Surinder Singh ), J. (rc)