IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.103 of 1995 Reserved on: 6.3.2009 Date of decision: 10.3.2009 ------------------------------------------------- State of H.P. Appellant. Versus Bhupinder Singh & others Respondents The Hon’ble Mr. Justice Deepak, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No For the Appellant: Mr.R.M.Bisht, Dy. Advocate General, for the appellant. For the respondents: Mr.Rakesh Jaswal, Advocate. V.K.Ahuja,J This is an appeal by the appellant filed by the State of H.P. the judgment of the Court of learned Addl. Sessions Judge (I), Kangra at Dharamshala dated 5.8.1994 vide which the respondents were acquitted of the charge framed against them under Section 302/34 IPC. Briefly stated, the facts of the case are that on 10.2.1993 at about 5.45 PM , the police officer recorded the statement of complainant Harcharan Singh under Section 154 Cr.P.C. He alleged that at about 4.00 PM, he was informed by one Pradhan Sat Pal that his son Parbhur Singh has been killed by drowning in the river water by Bhupinder Singh and Mohan Singh who were wife’s brother of Parbhur Singh. On receipt of the information, he went to the spot along with 2-3 Whether the reporters of Local Papers may be allowed to see the Judgment? Yes persons and found the dead body of Parbhur Singh lying on the river side. It was alleged by him that his daughter-in-law Kuldip Kaur was living in her parent’s house since his son was working abroad and his son’s in-laws were enjoying the money sent by his son. It was alleged that for this reason the respondents may have killed his son who are cousin brothers. On this report, a case was registered and after registration, challan was filed in the Court of Judicial Magistrate, who committed the case to the Court of learned Sessions Judge, who assigned the same to the learned trial Court, who tried the respondents leading to their acquittal. We have heard the learned Dy. Advocate General for the State and the learned counsel for the respondents and we have also been taken through the evidence adduced by the prosecution to substantiate their case. A perusal of the record of the case shows that the prosecution had examined 17 witnesses and out of them two were examined as eye witnesses, whose statements can be said to be very material. The first witness is PW-2 Bakshish Singh a fish contractor who has stated that he had a contract for catching of fish from river Beas and he had employed Bhaiyas for the work. He stated that one Ramji Bhaiya was with him who was in a separate adjoining Jhuggi. He further stated Ramji Bhaiya told him that out of the three persons who had gone to the river, only two had come back and the third had died. He sent Radhey Bhaiya to inform the Sarpanch. He further stated that those persons were apprehended by Bhaiyas but he cannot identify them. He further stated that the apprehended persons revealed that the third man was inside the river but how he entered the river, nothing was stated by him. He was declared hostile and was cross- examined by learned Public Prosecutor. He neither identified the respondents having been apprehended at that time nor he had seen the respondents drowning the deceased in the river Beas at that time. The other eye witness examined is PW-16 Ramji Bhaiya, a fisherman who has stated that he went to catch fish in Beas river and there were other persons also and they were working under the supervision of one Bakshish Singh. He stated that at about 11 AM/12.00 noon when he was coming back to his hut, he spotted a dead body inside the water at river Beas. Then he called Radhey Shyam and sent him to Pradhan. He does not know how and from where the dead body came. He clearly stated that no person was drowned by any person in his presence. Thus, both these witnesses have never stated that they had seen the respondents drowning the deceased in the river water or throttling him or apprehended them at the time they were making such an attempt. The mere fact that they were apprehended at the spot after sometime is not sufficient to prove that they had drowned the deceased in the river until and unless some witness states that he had seen them throttling the deceased or drowning him in the river. Apart from the above, the prosecution has also examined PW-1 Satpal Singh to prove the alleged confession made by the accused at that time. He stated that one Radhey Shyam came to him and informed him that three persons on a motor cycle went to river side and two gave beatings to the third person and threw him into the river. He stated that these three persons were apprehended by Bakshish Singh etc. who has not stated so while appearing as PW-2. He further stated that on his questioning, both the accused told that the third person was Parbhur Singh who had gone to fetch liquor but has not returned as yet. He stated that both the accused on his asking denied fighting with the deceased. He did not refer to any alleged confessional statement made by the accused at that time in his presence. In cross-examination, he told that when the police questioned the accused, he confessed by stating that the deceased gave beatings to his father and so he after throttling Parbhur Singh, threw him in the water. This confession, if any, was made before the police and no police officer has corroborated such confessaion and the confession made before the police is inadmissible in evidence. The post-mortem report Ex.PK shows the cause of death as drowning and there is nothing to suggest that there was any sign of throttling and then the respondents threw him in the river. The prosecution had also examined PW-4 Harchan Singh father of the deceased who had only learnt that his son had been killed but the cause of death according to him was not told to him. He went to the river bed and saw the dead body of his son. The police came and recorded his statement. He admitted in his cross examination that after the death of Parbhur his daughter in law Kuldip Kaur contracted Karewa marriage with his son Naginder. We are not taking it as a circumstance either in favour of the prosecution or in favour of the defence but this fact cannot be lost sight of that in case the deceased had been killed by his in-laws this marriage in between Kuldip Kaur his daughter in law and his son, in all probabilities would not have taken place. The statement of Kuldip Kaur, the deceased’s wife was also recorded as PW-5 but she has not substantiated the case of the prosecution in any manner. She also admitted that she had contracted second marriage out of her own free will. The statements of other witnesses are not material as they do not advance the case of the prosecution. In view of the above discussion, the findings recorded by the learned trial Court that the prosecution had failed to prove its case beyond any reasonable doubt cannot be said to be perverse calling for interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), J March 10 , 2009. (V.K.Ahuja),J. (sds)