IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.467 of 2007 Judgment reserved on:4.8.2008. Decided on: September 05, 2008. Dhan Bahadur …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr.Rakesh Manta, Advocate. For the respondent: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge: This is an appeal against the judgment dated 16.3.2007 passed by learned Additional Sessions Judge, Shimla, Camp at Rohru in Sessions Trial No.3-R/7 of 2006 convicting the appellant under Section 304 Part-II IPC and sentencing him to simple imprisonment for seven years. 2. The prosecution case, in brief, is that PW-12 Inspector Basti Ram on 24.1.2005 recorded the statement Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Ext.PW-12/A of PW-8 Romi Brakta under Section 154 Cr.P.C. PW-8 in his statement has stated that he had his Dogri at Chunjar. On 23.1.2005 the house of Gopi Chand resident of Ganga Nagar got fire and for that reason he had gone to village Ganga Nagar. In the evening at about 6-7 P.M. he went to his house situated in village Chunjar. On 24.1.2005 at about 9 A.M. Dhan Bahadur who works in the orchard of Ram Krishan Brakta in village Chunjar came to his house as Man Bahadur elder brother of Dhan Bahadur works with him. He told that he had quarrel with his wife Kalsari on consumption of liquor and he gave her beatings, she was lying dead since 8 P.M. last night. He went to Ram Krishan at village Ganga Nagar. He disclosed the incident to him, who in his presence informed the police. Ram Krishan told him to go to Melthi and contact the police. On this he reached Melthi at about 2 P.M. and got recorded his statement. Kalsari was in the habit of taking liquor and on previous occasions also Dhan Bahadur used to beat her for consuming liquor. On the basis of this statement, F.I.R. Ext.PW-14/A was registered at Police Station, Rohru. 3. The Post mortem on the dead body of Kalsari was conducted by PW-5 Dr.Amodh Kumar who issued post mortem report Ext.PW-5/A. Recoveries were made, spot was inspected and statements of witnesses were recorded. …3… The reports Ext.PW-12/R and Ext.PW-12/S were obtained from Forensic Science Laboratory. On completion of investigation, challan was presented in the Court. The accused was charged for offence punishable under Section 302 IPC, to which he pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses to bring home the charge. The statement of accused was recorded under Section 313 Cr.P.C. The accused examined DW-1 Smt.Mani in his defence. On conclusion of trial, the learned Additional Sessions Judge on 16.3.2007 convicted and sentenced the appellant / accused, hence, this appeal. 4. I have heard Mr.Rakesh Manta, learned counsel for the appellant and Mr.Anshul Bansal, learned Additional Advocate General for the State and gone through the record. The learned counsel for the appellant has submitted that the learned Additional Sessions Judge has erred in convicting and sentencing the accused on suspicion. There is no eye witness of the incident. The prosecution has miserably failed to prove the case against the accused. The suspicion howsoever grave cannot take the place of proof. The learned counsel for the appellant has submitted that on the basis of material on record, the accused is entitled to acquittal. The learned Additional Advocate General has supported the impugned judgment and has submitted that …4… accused has failed to explain how deceased sustained injuries on her body. The deceased was the wife of the accused and they were living together in the Dhara on the date of incident and, therefore, it is for the accused to explain how Kalsari sustained injuries on her body and died. He has submitted that accused has confessed his quilt before PW-8. The learned Additional Advocate General has submitted that learned Additional Sessions Judge has already taken a lenient view in convicting and sentencing the accused under Section 304 Part-II IPC instead under Section 302 IPC. In order to appreciate rival contentions of the learned counsel for the parties, it is necessary to refer to evidence which has come on record. 5. PW-1 Guman Singh, brother of deceased Kalsari, has stated that accused and his sister were working for Ram Krishan Brakta at Chunjar and were living in the Dera in his orchard. In January 2005 on hearing the murder of his sister he went to the spot. At the Dera of the accused dead body of Kalsari was lying. The deceased was having injuries on her head, her right side was half burnt and blood was lying on the floor. The accused used to beat his sister. The Dera of accused is situated at lonely place. The police took into possession Patra (wooden seat), piece of wooden plank. Ext.PA and Ext.PB were prepared. The witness identified …5… Patra Ext.P-1 and piece of wooden plank Ext.P-2, shirt Ext.P- 3, Salwar Ext.P-4, sweater Ext.P-5. The accused produced another shirt vide memo Ext.PC and the witness identified such shirt Ext.P-6. In cross examination, he has stated that children were not residing with accused and Kalsari. He denied the suggestion that Kalsari was dead drunk and suffered injuries by fall in the Dera. He denied that Kalsari was lying in the snow and died due to freezing cold. He denied that accused returned to his Dera at about 8 P.M. and brought Kalsari inside the Dera and tried to give her warmth in front of fire. Kalsari was lying inside the Dera and the blood was also lying scattered on the ground in the Dera. 6. PW-2 Ram Krishan has stated that he has an apple orchard at Chunjar. The accused Dhan Bahadur, his wife and elder brother came to him for permission to live in his Dera and he permitted them to live in the Dera. After about 3/4 days Romi Brakta informed him that accused Dhan Bahadur had committed murder of his wife Kalsari, he accordingly informed Police Station, Rohru on telephone. The Munshi told him that S.H.O. was in the area, he contacted the S.H.O. on mobile and informed him about the murder. In the meantime, Romi Brakta also came there and he told him that he should contact the S.H.O. who was at Melthi. PW-3 Smt.Bimla Devi is the sister-in-law of …6… deceased and she has stated that accused used to give beatings to deceased. 7. PW-4 Chander Bahadur has stated that deceased Kalsari was known to him and Romi Brakta told him that accused had committed murder of Kalsari and he went to Chunjar. He saw the dead body of Kalsari inside the Dera. The accused produced his shirt. The police took into possession one wooden seat Ext.P-7 vide memo Ext.PW-4/A. In cross examination, he has shown his ignorance that Kalsari had sustained injuries due to fall. He has also stated that he does not know Kalsari was lying on the snow outside and the accused brought her inside. 8. PW-5 Dr.Amodh Kumar, Medical Officer, Civil Hospital, Rohru conducted post mortem on the dead body of Kalsari and issued post mortem report Ext.PW-5/A. In cross examination he has denied that injuries are possible due to striking of head against the wall. The wooden strip / Patra can cause the injuries which he has mentioned in the post mortem. He has denied that superficial burn injuries can be caused to a person if such person is brought to the fire place and given heat of the fire. PW-6 Rajinder Singh, Patwari has issued Jamabandi Ext.PW-6/A, Tatima Ext.PW-6/B. PW-7 HHC Kanwar Singh has stated that S.H.O. filled in forms Ext.PW-7/A and Ext.PW-7/B and handed over the forms …7… along with application Ext.PW-7/C and dead body to him for post mortem. He took the dead body to Civil Hospital, Rohru and handed over the dead body to medical officer. The post mortem report and dead body was handed to S.H.O. and viscera was handed over to MHC and the receipt is Ext.PW- 7/D. PW-8 Romi Brakta has stated that his Dogri is located at Chunjar near Ganga Nagar. On 23.1.2005 the house of Gopi Chand had got fire and he went to Ganga Nagar. He returned to his village at about 6-7 P.M. On 24.1.2005 at about 9 A.M. accused Dhan Bahadur came to him as his elder brother Man Bahadur was working with him. He did not support the prosecution and was declared hostile. He was cross examined by the prosecution. He was confronted with his statement Mark ‘X’. He admitted his signatures on Mark ‘X’. He has also admitted that statement Mark ‘X’ was written at the time when he put his signatures. He saw injury on her face. He did not notice any burns on her body. The Dera of the accused is the only Dera situated there. In the cross examination conducted on behalf of the accused, he has denied that accused told him that Kalsari was lying unconscious after taking liquor. He has also denied that accused told him that he brought Kalsari inside the house from outside and then tried to give warmth to her body near the fire place. …8… 9. PW-9 Constable Satya Nand has stated that on 24.1.2005 S.H.O. Basti Ram handed over Ruka Mark ‘X’ to MHC Parkash at Police Station, Rohru. On 27.1.2005 MHC Parkash Chand handed over two parcels sealed with Seal ‘T’, two parcels sealed with seal ‘A’ and six parcels sealed with seal ‘CHR’ to him which he deposited with Forensic Science Laboratory, Junga. PW-10 MHC Parkash Chand has stated that on 25.1.2005 S.H.O. Basti Ram handed over two parcels sealed with seal ‘C’ and two parcels sealed with seal ‘A’. HHC Kanwar Singh handed over six parcels sealed with seal ‘CHR’ to him. On 27.1.2005 he handed over all aforesaid parcels to Constable Satya Nand for depositing the same with FSL Junga who after delivering the parcels delivered receipt to him. PW-11 S.I. Ramesh Chand has stated that he recorded F.I.R. Ext.PW-11/A on the basis of Ruka Mark ‘X’. PW-12 Inspector Basti Ram has stated that on 24.1.2005 he was present at Melthi in connection with investigation of some case. Romi Brakta complainant came there, he recorded the statement Ext.PW-12/A of Romi Brakta under Section 154 which was read over to Romi Brakta and signed by him. He then went to the spot along with the complainant. The dead body of Kalsari was lying in the room. He filled in forms Ext.PW-7/A and Ext.PW-7/B, prepared spot map Ext.PW-12/B. He arrested the accused …9… and at the instance of accused made recoveries. In cross examination, he has stated that the accused after killing Kalsari had changed her clothes. He has denied that deceased died due to drinking. 10. In his statement under Section 313 Cr.P.C. the accused has stated that he is innocent. DW-1 Smt.Mani has stated that Kalsari was her mother and she used to drink daily. In cross examination, she has stated that there is no Dera near the Dera of her father. The accused in reply to Question No.22 in his statement under Section 313 Cr.P.C. has admitted that at the time of incident only he and his wife were residing in the Dera and his children were not residing there. It has also come in evidence that there was no other Dera or house near the Dera where accused and his wife were residing. The accused in reply to Question No.5 has also admitted that on 24.1.2005 at about 8 P.M. he came to the house of Romi Brakta. PW-12 has stated that he recorded the statement Ext.PW-12/A under Section 154 Cr.P.C. of PW-8 Romi Brakta. In Ext.PW-12/A it has been clearly stated that accused had quarrel with his wife Kalsari on consumption of liquor and he gave beatings to her and she was lying dead since 8 P.M. PW-8 was declared hostile but it does not mean that no reliance can be placed on his statement. PW-8 has stated that statement Mark ‘X’ at the …10… time of his signatures was written. The statement Mark ‘X’ was later on exhibited as Ext.PW-12/A. The statement Ext.PW-12/A is the first version given by PW-8 to the police. The perusal of statement Ext.PW-12/A would show that accused admitted his guilt before PW-8. It appears PW-8 later on tried to help the accused by changing his statement in the Court but he cannot wipe out what he had already stated by way of statement Ext.PW-12/A. The accused and deceased were living together at the time of incident, therefore, heavy burden lies on the accused to explain the circumstances how deceased sustained injuries on her person. The accused has taken different stands by putting different suggestions to the prosecution witnesses. He took the defence of alibi by suggesting to PW-1 that he was present at the shop at Sheelghat on that day, Kalsari was dead drunk and suffered injuries by fall in the Dera. It has also been suggested to PW-1 that Kalsari died as she was lying in snow and died due to freezing cold. The accused returned to his house at about 8 P.M. and brought Kalsari inside the Dera and tried to give warmth to her body by placing her before fire place. The defence of accused that Kalsari sustained injuries due to fall and died of freezing cold is contradicted by PW-1 when he has stated that deceased was having injuries on her head, her right side was half …11… burnt and blood was lying on the floor. PW-4 has stated that body of Kalsari was inside the Dera and she was having injuries on her head from which blood was flowing and blood was scattered on the floor. PW-5 Dr.Amodh Kumar has denied the defence suggestion that injuries are possible due to striking of head against the wall. He has also denied that superficial burn injuries can be caused to a person if he is brought near the fire place and given heat of the fire. 11. According to the defence, Kalsari sustained injuries outside the Dera and probably she died outside the Dera but when accused returned to his Dera at about 8 P.M. he saw Kalsari lying outside the Dera and he took Kalsari inside the Dera. It is not the defence of the accused that Kalsari was murdered by some unknown person. The defence version is that she died of fall and due to freezing cold. In case Kalsari had a fall and died due to injuries sustained by her due to fall as well as freezing cold then how blood was found scattered inside the Dera that has not been explained by the defence. There is nothing on record to show that Kalsari died of freezing cold and before that she had fall. On the contrary, doctor (PW-5) has ruled out injuries on the head of Kalsari by striking against wall. It has come in evidence that accused on earlier occasions also used to beat Kalsari. The cumulative effect of the evidence led by the prosecution is …12… that on 23.1.2005 at about 8 P.M. accused gave beatings to Kalsari. PW-5 doctor has clearly stated that wooden strip / Patra can cause the injuries. He has denied that the injuries are possible due to striking of head against the wall. The explanation given by the defence is false. PW-8 has given the version which is not even the case of the accused. PW-8 has gone to the extent in his statement that accused had told him that Kalsari was killed on previous night by somebody and bolted the accused inside the cow shed and then made inquiries from him as to whether he had killed his wife or somebody else. On the contrary, the defence of the accused is that Kalsari died due to fall and not that somebody else had killed Kalsari and bolted the accused inside the cow shed. PW-8 on this count is not reliable. The forensic report has found human blood on Patra and clothes of the deceased and shirt of accused. The learned Additional Sessions Judge has rightly appreciated the material on record in returning the finding that the accused killed his wife Kalsari, he had no intention to kill her but definitely he had the knowledge that the blows of Patra on her head and other parts of the body would kill her. The learned Additional Sessions Judge on the basis of material on record has rightly convicted and sentenced the …13… appellant / accused. The appellant has failed to make out any case for interference. 12. No other point was urged. 13. The result of the above discussion, appeal fails and is accordingly dismissed. September 05, 2008. ( Kuldip Singh ), J. (soni)