IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 208 of 2007. Reserved on: 16.03.2011. Decided on: 03.06.2011. __________________________________________________________ Ram Pal. … Appellant. Versus State of Himachal Pradesh. … Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the appellant : Mr. Vijay Pandit and Mr. Pawan Gautam, Advocates. For the Respondent : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. Rajiv Sharma, Judge: This appeal is directed against the judgment dated 7.5.2007 passed by learned Additional Sessions Judge, Una in Sessions Case No.01 of 2006, Sessions trial No.4 of 2006, whereby the appellant, who was charged with and tried for offence under Sections 302 and 201 of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 25,000/-. In case of default of payment of fine, the appellant was directed to further undergo simple imprisonment for 3 months. He was also held entitled to the benefit of Section 428 of the Code of Criminal Procedure. 2. The case of the prosecution, in a nutshell, is that on 14.9.2005 S.I. Diwan Chand (PW-26), Station House Officer, Police Station, Amb, District Una received a telephonic message from A.S.I. Vishwas Kumar (PW- 22), Incharge, Police Post, Chintpurni regarding the murder of one lady in Sahil Hotel, Chintpurni. On receipt of this information, PW-26 reached Sahil Hotel, Chintpurni where Suresh Kumar, PW-2, Manager of the hotel got recorded his statement under Section 154 of the Code of Criminal Procedure vide Ex.PW-2/C. According to the contents of his statement, on 13.9.2005 at about 3.30 p.m. one male and a female came to stay in the hotel. They introduced themselves as husband and wife. On their request room No.201 was rented out to them in the said hotel at the rate of ` 200/- per day. The male disclosed his name as Ram Kumar son of Singh Ram, resident of House No.14, Khurdpura, Chandigarh. PW-2 made entry in the register at Serial No.64 after - 3 - obtaining the signatures of Ram Kumar. Next day, he directed PW-21, Satish Kumar, who was working as waiter to find out whether the occupants of room No.201 have vacated the room or not. Satish Kumar told him that the room was still occupied and the same was locked from inside and despite knocking the door, the occupants were not opening the door. PW-2 opened the door of the said room with duplicate key. He found the dead body of one female lying on the bed. Thereafter, he closed the door and telephonically informed the police as well as the owner of the hotel regarding this incident. According to his statement recorded under Section 154 of the Code of Criminal Procedure by the police, the person who stayed in the hotel disclosed his name as Ram Kumar. Ram Kumar fled away from the spot after murdering the woman. On the basis of statement Ex.PW-2/C, F.I.R. Ex.PW-26/B bearing No.154 of 2005 was registered. The matter was investigated by the police. The police searched for said Ram Kumar. Police also got published the photographs of the dead body of woman in the newspaper. Thereafter the Station House Officer of Police Station, Kangra informed the Police Station, Amb on telephone regarding identification of the dead body by the public at Kangra as wife of one Ram Pal, who was living near a temple at Kangra and - 4 - was working there as tailor. On getting the information, the police people of Amb Police Station reached there and collected necessary information and ascertained the address of accused Ram Pal. Accused Ram Pal was arrested from Karnal on 18.9.2005 and was produced before Judicial Magistrate 1st Class, Amb. While in police custody, accused made a disclosure statement under Section 27 of the Evidence Act and got recovered the key of room No.201 of Sahil Hotel, clothes which he was wearing at the time of the commission of offence and the clothes of the deceased. His disclosure statement is Ex.PW-8/A. The accused also identified the place of occurrence and the room of Baba Guest House, Jawalamukhi where he and deceased stayed for a night on 12.9.2005. During further investigation, the finger prints and sample of hair were also taken by the police and sent to concerned laboratory. The challan was put up in the Court after completing all the codal formalities. The prosecution examined 26 witnesses to prove its case. The accused was also examined under Section 313 of the Code of Criminal Procedure. The defence of the accused is of complete denial simpliciter of the offence. He also pleaded that the prosecution witnesses were inimical towards him and police has obtained his thumb impression on the documents under pressure. He - 5 - has also examined 4 witnesses in his defence. The learned trial Court, as noticed above, convicted and sentenced him as aforesaid. 3. Mr. Vijay Pandit, learned counsel for the appellant has strenuously argued that the learned trial Court has misread and misappreciated the ocular as well as documentary evidence. 4. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the judgment of learned Additional Sessions Judge, Una, dated 7.5.2007. 5. We have heard the learned Advocates and gone through the record very-very carefully. 6. F.I.R. Ex.PW-26/B has been registered on the basis of statement got recorded by PW-2, Suresh Kumar under Section 154 of the Code of Criminal Procedure vide Ex.PW-2/C on 14.9.2005. 7. Now we will discuss the statements of material witnesses examined by the prosecution. 8. PW-2, Suresh Kumar, who was working as Manager in hotel Sahil at Mata Chintpurni has deposed that on 13.9.2005 at about 3.30 p.m. one couple came to stay in his hotel, Sahil. The name of person was Ram Kumar, but the name of the lady was not disclosed. She was wearing yellow clothes. According to PW-2, accused Ram Kumar was the same person who was present in - 6 - the Court. The accused disclosed to him that they were husband and wife and asked for a room. He showed them room No.201. The entry was made in the register and his signatures were also obtained. The accused had given the address of Chandigarh. The copy Ex.PW-2/A is rough copy maintained by him for the purpose that some times the devotees keep their luggage temporarily in the hotel when they go to temple and while coming back they take away the luggage and entry of such devotees is made in this copy. According to him, he had maintained register Ex.PW-2/B for the tourists, who stay in the hotel. The entry of accused was made at Sr. No.64 at page No.17. The signatures in the register were obtained when a person leaves the hotel. He could not get the signatures of the accused as he had left the hotel without informing him and the staff of the hotel, and therefore, at the place of signatures, he had written his name only. The signatures of the accused were obtained in Ex.PW-2/A at page No.3. Accused had come to the hotel at 4.30 p.m. and they were given the key of the room. Next day, he asked the boy at about 11.00 a.m. to find out how many rooms were vacant and he told that one room was still occupied and locked from inside despite knocking. Then he went to that room and knocked the room 3-4 times, but the room was not - 7 - opened. He thereafter got the duplicate key and opened the door and found the dead body of a lady inside the room. A cloth (duppatta) was tethered on her face. He closed the door and informed the police. The police came on the spot and recorded his statement under Section 154 of the Code of Criminal Procedure, Ex.PW- 2/C. The police visited the spot and obtained the photographs of the dead body with the help of photographer. The police took into possession the copy Ex.PW-2/A and register Ex.PW-2/B vide memo Ex.PW- 2/D, which bears his signatures. The photographs mark A-1 to A-14 were of the same lady who had come to his hotel with the accused. In his cross-examination, he has admitted that there was no stamp of his hotel on the copy Ex.PW-2/A. He has denied the suggestion that front pages of the copy had been torn. However, on perusal of the same, he has admitted that about 6-7 front pages had been removed from the copy. He has also admitted that copy Ex.PW-2/A did not bear his signatures. He has also admitted that in the copy Ex.PW-2/A, date has not been mentioned. The numbers of persons have also not been mentioned in the copy. He has also admitted that at page No.2 of the copy room number has not been mentioned. He has also admitted that in the copy at page No.2, he has not obtained the - 8 - signatures of the persons. He has also admitted that in the copy Ex.PW-2/A, the name of Surinder has been mentioned and there was no entry against this name. He has further admitted that the copies like Ex.PW-2/A were available in the market. He has also admitted that the entry of accused in this copy was not in his handwriting and the same was in the handwriting of Kamal who was an employee of his hotel. He has also admitted that the accused had not left any luggage with him at the time of making entry in the copy Ex.PW-2/A. He has denied the suggestion that whenever a person books a room with them, his signatures are obtained. He then stated that the signatures are obtained later on. He has admitted that as per rules, the signatures of the tourist are obtained whenever he comes to the hotel, but sometimes they used to get the signatures later on. He has admitted that he has mentioned the name of accused Ram Kumar after he checked the room and found the dead body of a lady. He has denied the suggestion that he has mentioned the name of accused in the register Ex.PW-2/B at the instance of the police. He has admitted that at entry Nos.60 and 55 there were no signatures of the visitors. He has admitted further that in both the entries the time of arrival and departure has been mentioned. He has categorically admitted that - 9 - at Sr. No.64 regarding the entry of accused Ram Kumar, there is over writing of date which has been changed from 12 to 13. He also admitted that he remains on duty for 24 hours. He has also admitted that the reception is at the entry of the hotel. He could not say when and at what time the accused had left the hotel. He has not seen the accused after he left the hotel. He has denied the suggestion that he has seen the accused only in the Court. He has also admitted that he has not mentioned any identification mark of the accused in Ex.PW-2/C. The police had reached the room in his presence and his signatures were also obtained. The police had taken into possession some glass, chappel, some purse and other articles of the deceased/accused. He has admitted that the photographs of the dead body were published in the newspaper and the name of accused was also mentioned therein. According to him, there was no arrangement in the hotel for meals or tea and the same was provided to the visitors from outside. According to him, the accused entered the room at 3.30 p.m. According to this witness, the accused had come thereafter out of the hotel and again went inside the hotel, but no bell came from inside the room for meal or tea. He has not seen the accused going out of the hotel to take meals from outside. His statement was recorded - 10 - under Section 154 Cr.P.C. on 14.9.2005 at 1.00/2.00 p.m. 9. PW-3, Pooja Batra has disclosed the name of her father to be Joginder Batra (PW-4) and the name of her mother was Sudesh Kumari. Her father was a tailor by profession near Rathunath Mandir, Karnal. Her mother was running beauty parlour at Gandhi Chowk, Karnal. Accused, Ram Pal was running a tailor shop in front of the shop of her father near Rathunath Mandir, Karnal. Her mother had been getting her clothes stitched from the accused. Thereafter the accused started visiting their house. On 6.5.2005, the accused took away her mother. They searched for her mother, but could not find her. Thereafter they made a report at the police station. On 10.9.2005, they received a telephone of her mother as on that day, there was birthday of her younger brother. Her mother told her that she was at Kangra with Ram Pal and she was quite well. She again received a telephone on 11.9.2005 from her mother. She told her that she was not having money to use the telephone and gave her a number to call back on that number. She did not remember the telephone number at the time of recording her statement. She rang up her mother. Her mother told her that Ram Pal had been giving her beatings and she wanted to get out - 11 - from that place. She thereafter on 13.9.2005 again received her telephone call. Her mother had told her that she had made the packing and asked her to meet her at bus stand, Karnal. She went to bus stand, Karnal, but her mother did not come there. On 18.9.2005, her father told her that her mother has been murdered. The police came on 25.9.2005 and recorded her statement. She identified the clothes of her mother recovered, Ex.P- 1 to P-21. In her cross-examination, she has admitted that the family did not go to Kangra after they came to know that her mother was at Kangra, on 10.9.2005. According to her, she did not know the whereabouts of her mother between 6.5.2005 and 10.9.2005. The family did not receive any telephone from her mother during this period. Her father informed the police at Karnal after the receipt of telephone of her mother on 10.9.2005. Her father has also not visited Kangra with police for search of her mother. She has told the police that her mother had told her on telephone that Ram Pal used to give beatings to her, whereas, the same has not been found so recorded in mark D-X. She rang up her mother from P.C.O. and she had the bill of that number and, therefore, she knew that number. 10. PW-4, Joginder Batra is the husband of deceased, Sudesh Batra. Their marriage was solemnized - 12 - about 20 years back. He was working as a tailor with Champion Tailor at Karnal and before that he was running a tailor shop at Gandhi Chowk. He knew accused Ram Pal who was also running a tailor shop in front of his shop. His wife was running a beauty parlour at Gandhi Chowk. His wife had been going to the shop of accused for stitching of her suits and thereafter the accused started visiting their house. He asked the accused not to come to his house in his absence as he was on visiting terms only in his absence. However, the accused did not stop visiting his house and had been taking meal, tea etc. His wife and accused, Ram Pal went missing on 6.5.2005. He searched for her. He made report to the Senior Superintendent of Police at Karnal on 9.5.2005 vide Ex.PW-4/A. He had also made a complaint to the Deputy Commissioner on 16.8.2005 vide Ex.PW-5/B. On 13.9.2005 his daughter, Pooja told him that his wife rang up her that she had packed her luggage and she will reach at about 9-10 p.m. They waited for her till 1.00 p.m., but she did not come. In his cross-examination, he has admitted that he has not given any statement to the police on 18.9.2005, but had only given the photographs mark A-1 to A-14. 11. PW-5 is Constable Mohinder Singh. He has brought the original Daily Diary. The copy of rapat - 13 - No.11, dated 11.5.2005 is Ex.PW-5/A. PW-6 Constable, Rakesh Kumar has brought the original application of PW-4, Joginder Batra, made to Deputy Commissioner, Karnal vide Ex.PW-6/A. In his cross-examination, he has admitted that as per inquiry, the deceased was suffering from mental problem and she had also earlier ran away from her house 2-3 times and had also been taking medicines. He has also admitted that in his statement recorded by the police during that inquiry, Joginder Batra has stated that he did not want to take any action against accused, Ram Pal. He has further stated that he did not know whether Joginder Batra had made any report to the P.S. before 13.9.2005 that his wife rang him that she was at Kangra. 12. PW-7, Vinod Kumar is the owner of Sahil Hotel at Chintpurni. He was informed on 14.9.2005 by the Manager about the murder in his hotel and thereafter he went there and called the police and the police conducted the proceedings. The police had brought the accused under arrest on 21.9.2005. The police had asked the accused to show the room where the murder has taken place and the accused took the police to room No.201 and showed the place to the police. The police prepared memo Ex.PW-7/A. In his cross-examination, he has stated that he was informed at about 11.00 a.m. - 14 - The Manager told him that he saw the dead body from the window. He did not remember whether the room was opened in the presence of police or was already open. The police had come after he reached there. He remained present with the police on 14.9.2005. His signatures were not obtained when the dead body was removed from the spot. His Manager and Waiters knew about the murderer only from the register where the name of accused was recorded. 13. PW-8, Surinder Kumar has deposed that he had gone to Police Station, Amb about 3-4 months ago. Accused was in police custody. He made a statement that he could show the room where he had murdered the lady and can also take the police to Kangra. This statement of accused was recorded by the police vide Ex.PW-8/A, which bears his signatures. In his cross- examination, he has stated that the accused did not tell the date and time of murder in his presence. Accused also did not tell the number of key and the room in his presence. He did not accompany the police to the place from where the recovery was effected. 14. PW-9, Jugal Kishore has stated that he was running a shop at Kangra. He knew Surinder Kumar and Chet Ram, who were local residents of Kangra, H.P. He knew accused Ram Pal, who was brought to him by Chet - 15 - Ram for renting out a room. He had given the room to accused on rent at the rate of `800/- per month. Accused, Ram Pal was accompanied by a lady, who was introduced to him as his wife. Her name was disclosed as Komal. The accused had come in the month of May, 2005 and remained in his house for about 4 months. Accused was working as tailor with Shiva Tailor and Surinder was owner of the shop. The accused had locked the room on 10/11.9.2005 and had gone after informing that he alongwith his wife was going to Karnal. On 14/15.9.2005, accused Ram Pal came alone in his house. He saw the photographs of dead body of Komal in the newspaper. He became suspicious. He made inquiry from the accused. In the morning, the accused took the container (lotta) made of copper and went towards the temple. Thereafter he never came back. When the accused did not come back, he went to the S.H.O., Police Station, Kangra with the newspaper. He told the S.H.O. that he had doubt that the photograph was of the same lady who had been murdered and her photograph has been published in the newspaper. He said that while leaving his house, accused had left the room open. Police from Amb came on 17.9.2005 alongwith Surinder, Tailor to his house. They saw the room in which the accused was living and they locked - 16 - the room. On 22.9.2005, accused was brought by the police in private vehicle and from that vehicle the accused led the police to the room in which he was living and they followed him. The accused got recovered one pant of Saleti colour and one shirt from his attachie case and the waiter who was also with them told that the accused was wearing these clothes. The accused also got recovered one key No.201 of the room of hotel, which was kept behind the gas cylinder. The police prepared memo Ex.PW-9/A which was signed by him and the waiter and Surinder, who were present there. The key Ex.P-23, shirt Ex.P-24 and pant Ex.P-25 were identified by him. According to him, the accused also got recovered 6-7 lady suits from the attachie case, which were stated by him to be of Komal. The same are Ex.P-1 to P-21. The police had kept the suits in a bag Ex.P-22 and sealed the same and prepared memo Ex.PW-9/B. In his cross-examination, he has admitted that no writing was prepared about the renting of the room. According to him, when the accused went from his home on 10.9.2005, then they were having one bag and 2-3 suits with them, but he could not say whether the bag was the same which is Ex.P-22 or not. He has seen the accused after that on 14/15.9.2005. He could not say when he exactly saw the accused on - 17 - 14/15.9.2005. The accused had come in the night on which day the photograph of deceased Komal was published in the newspaper. He admitted that he did not see the accused on 14.9.2005. He has given statement to the police that the accused had locked the room on 10.9.2005 and left for Karnal. However, this fact does not find recorded in his statement mark DY. He has not given the statement to the police that the accused had left the lotta at the shop of Mochi and told that he (accused) was going to take milk and did not came back. He did not remember whether in his statement to the police, he had mentioned that the accused had left the room opened. He has not given the statement to the police that accused and deceased had gone to Jawalamukhi, Chintpurni and Karnal, whereas, the same has been so recorded at portion B to B in mark DY. He had given the photo copy of D/L to the S.H.O. at about 10-11.00 p.m. on 16.9.2005, which was also containing the photograph of the accused. The police had come to his house after that, but he did not remember the exact date whether it was 16.9.2005 or 17.9.2005. According to him, when the police came alongwith waiter from Police Station, Amb, then they had seen whole of the room in which the accused was with them. But the police did not take anything in possession on that day. - 18 - The key of the room was deposited by the SHO from Police Station, Amb at Police Station, Kangra, H.P. The lock was already lying in that room with which the room was locked by the police. The police came back at about 11.00/12.00 p.m. on 22.9.2005. When the room was opened, the key was brought from P.S. Kangra, but he