1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 330 of 2005. Date of Decision: 19-6-2008. ____________________________________________________________ Ajay Singh alias Ajoo. Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes _______________________________________________________________ For the appellant. : Mr. Rakesh Jaswal, Advocate. For the respondent : Sh. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. ________________________________________________________ Surjit Singh, J. (oral). Appellant Ajay Singh has appealed against the judgment passed by Additional Sessions Judge, Kangra at Dharamshala in Sessions Case No. 9-K/2004, whereby he has been convicted of offences, punishable under Section 302 and 201, I.P.C. and sentenced to under-go imprisonment for life and to pay a fine of rupees 4000/- in respect of offence under Section 302, I.P.C. and to under-go imprisonment for a period of one year in respect of offence under Section 201, I.P.C. We may first notice the facts relevant for the disposal of the appeal. Deceased Veena Devi, aged about thirty-six years, lived in village Dhaloon along with her son Anil Kumar (PW5), then aged about fifteen years, and a daughter named Pooja, who is younger to her son. Her husband was employed in the Indian Army. She used Whether reporters of the Local papers are allowed to see the judgment? 2 to run a Public Call Office. Appellant is also resident of village Dhaloon. He was known to the deceased as also her husband Sarup Chand (PW11). They had good neighbourly relations. On the morning of 17th September, 2003, dead-body of Veena Devi was found lying down a path in the village, at a distance of about 600 yards from her house. Body was sighted by the villagers. Pradhan of the Panchayat (PW2) Ravinder Kumar was informed. He made a telephonic call to the Police which reached the spot in the evening and recorded the statement Exhibit PW1/A, under Section 154 of the Code of Criminal Procedure, of PW1 Pawan Kumar, a brother of the deceased. No-body was named, as suspect, in the said statement. Case was formally registered, on the basis of the said statement, vide F.I.R. Exhibit PW21/A. Inquest was conducted. Dead-body was sent for post mortem examination. PW4 Dr. D.P. Swami conducted post-mortem examination and noticed the following external injuries on the dead-body :- “1. Bite (teeth mark) on the eye side of breast 2.5 cm x 6 to 7 cm reddish transversely as mentioned in the diagram. 2. Bite (teeth mark) on the left side of upper outer arm 2.5 cm x 6 cm reddish transversely. 3. Grazed abrasion on right lower mid cheek, 3 cm x ¼ cm. reddish oblique. 4. Big nail scratch mark on the left side of neck 1 x ½ cm alongwith three others semicircular reddish nail marks each scratch 1 cm long with bruises underneath 1 x 1 cm each reddish, as shown in the diagram. 5. No.4 scratch nail marks on the right side of neck each half cm to 1 cm semicircular reddish with bruise underneath skin each one x one cm reddish as shown in diagram. 3 6. Grazed abrasion 6 x 3 cm on the right side of upper front, and mid thigh with the scratch No.3 abrasions of 6 cm length, reddish.” The Doctor opined the cause of death to be asphyxia due to ante mortem throttling (neck compression). Opinion was confirmed, on receipt of the report of Chemical Examiner, to whom viscera was sent. During the course of investigation, appellant and PW3 Surjit Kumar were arrested. Appellant made a disclosure statement on 21-9-2003, leading to the discovery of a towel and a torch from underneath a stone. The towel and torch were identified by PW5 Anil Kumar, the son of the deceased to belong to his deceased mother. PW13 Sanjeev Kumar told the Police that he lived in the neighbourhood of the deceased and that on the night intervening 16th and 17th September, 2003, he saw appellant going to the house of deceased around 10.30 P.M. and that soon thereafter, he saw the appellant and the deceased leaving the deceased’s house and the deceased had covered her head with a towel and was carrying a torch also. PW8 Ravindera Devi told the Police, that on the fateful night, around 1.00 A.M., appellant visited her place where Surjit Kumar (PW3) was staying with her that night and called him (PW3 Surjit Kumar) out and took him along saying that some persons were to be carried by a taxi belonging to him (the appellant) on which Surjit Kumar was employed as a Cleaner. Surjit Kumar was released on bail about two months after his arrest. Immediately on his release, he made application Exhibit PW3/A to the Chief Judicial Magistrate, for becoming approver. Chief Judicial Magistrate allowed his application and granted pardon. 4 Thereafter, his statement Exhibit PW3/B was recorded, in which he stated that on the fateful night, appellant came to his house at mid-night and took him along on the pretext that some passengers were to be carried by the taxi, on which he was employed as a conductor, and that when they reached the saw mill of the appellant, the latter told him that he happened to kill the deceased and her dead-body was to be disposed of. He also told the Police that he was forced by the appellant to carry the dead- body on his shoulder to a distance of 5/6 meters from the saw mill from where it was thrown down a path and the dead-body landed at a considerable distance. Trial Court believed the testimony of the approver and PW13 Sanjeev Kumar, who claimed to have seen the deceased and the appellant leaving the house of the deceased, around 10.30 P.M., on the relevant time and convicted and sentenced the appellant, as aforesaid. We have perused the entire record, i.e. the evidence adduced by the prosecution and the statement of the accused- appellant, under Section 313 of the Code of Criminal Procedure, and heard the leaned counsel for the appellant as also learned Additional Advocate General. Before appreciating the evidence of the prosecution, we may notice the legal position, as to the evidentiary value of the testimony of an approver. Approver is no doubt as good a witness as any other person, but he being an accomplice of the accused on trial, his testimony is normally not accepted, unless corroborated by independent evidence, both with respect to his own role in the commission of the crime as also the role of the accused on trial. It is 5 in the light of the aforesaid legal position that the evidence of the prosecution is required to be analyzed and acted upon. PW3 Surjit Kumar, approver, stated that on 16th September, 2003 after working with the appellant-accused as conductor on his taxi during day time, he went to his house and around mid-night, appellant came to his house and took him along on the pretext that some passengers were to be carried in the taxi and that on reaching the saw mill, he told him that he happened to kill Veena Devi and her dead-body was to be dumped some-where and then he compelled him to carry the dead-body to a distance of 5/6 yards from his saw mill and to throw the same downwards. He stated that the body was not wearing anything, except a jumper (blouse). Prosecution examined PW13 Sanjeev Kumar son of Shri Mast Ram to seek corroboration to the testimony of approver. The witness testified that on the night intervening 16th and 17th, he saw the appellant-accused entering the house of the deceased around 10.30 P.M. and that soon there-after, the two left in the company of each other and that he remained awake, preparing for his examination, up to 2.00 or 2.30 a.m. but till then, the deceased did not return to her house. He stated that his house was close to the house of the deceased. The testimony of the witness does not inspire confidence, because he is contradicted in material particulars by his statement, under Section 161 of the Code of Criminal Procedure, Exhibit PW13/A, with which he was duly confronted and also because even though his aforesaid statement, under Section 161 of the Cr.P.C., purports to have been recorded on 17.9.2003, in fact, it was recorded much later and the fact is 6 borne out from the record. To the Police, the witness stated that on 17th September, 2003, he left the village early in the morning for Chandigarh and returned to the village on the day of his making of the statement, meaning thereby that the date of his return to the village was different from 17.9.2003 when he left for Chandigarh. Below the signatures of the Investigating Officer, who recorded his statement, the date is however, 17.9.2003. The mention in the statement Exhibit PW13/A portion ‘B’ to ‘B’ of Exhibit PW13/A that he returned to the village on the day when his statement was recorded created doubt in our mind that the statement could not have been of 17th September, 2003 because that was also the date on which he was recorded vide portion ‘A” to ‘A’ to have gone to Chandigarh. So we searched for the date of the record of the statement in the police diaries, available with the learned Additional Advocate General. We found a reference of the recording of the statement of this witness under Section 161 Cr.P.C. in the zimnies recorded on 20.9.2003. The sheet forming part of the zimnies of the aforesaid date, i.e. 20.9.203 in which there is a reference to the statement of PW13, is not counter-signed by the supervisory police officer, even though all other sheets of the zimnies of that date are counter-signed. This fact indicates that probably the statement of the witness was not recorded even on 20.9.2003. Now though, per portions ‘A’ to ‘A’ and ‘B’ to ‘B’ of Exhibit PW13/A, PW13 Sanjiv Kumar left for Chandigarh on 17.9.2003 at 8.00 A.M. and returned to the village on the date of making of the statement which as already demonstrated, could not have been 17th September, the date appearing below the signatures of the Investigating Officer at the foot of the statement Exhibit 7 PW13/A, while in the witness box, he denied that he had gone to Chandigarh on that day or that he had stated portion ‘A’ to ‘A’ of Exhibit PW13/A. He stated that he was very much present in the village when the Police came to investigate the matter. Now if the witness had not gone to Chandigarh and was present in the village on 17th and also on the subsequent dates, he was supposed to have stated the alleged fact of his having seen the deceased and the appellant together on the fateful night, on the very first day of the visit of the Police to the village i.e. 17.9.2003. As already noticed, zimnies show that he made the statement on 20th September, 2003. Even the zimny appears to be tampered with, as noticed herein above, and so it can be presumed that the statement might not have been made even on 20th, but much later. So no reliance can be placed upon the testimony of PW13. Prosecution also tried to prove that the appellant-accused made a statement leading to the discovery of a towel and a torch belonging to the deceased. According to the prosecution version, accused-appellant made disclosure statement, record of which is Exhibit PW12/A, in the presence of PW2 Ravinder Kumar and PW12 Madan Lal, both Pradhans of Gram Panchayat, that he had kept hidden a towel and a torch, under the stones in the bushes, by the side of the path, leading from Karapura to Gallu. The statement was allegedly made by the accused-appellant on 21.9.2003. Prosecution’s own witnesses namely, PW15 Bishamber a witness of recovery of these articles, and PW23 Gopal Krishan Sharma, photographer, however, give a lie to the evidence of alleged recovery of the aforesaid two articles at the instance of appellant- accused. PW15 Bishamber, very categorically stated that before 8 the appellant got recovered the towel and the torch, police and other residents of the area had searched for the aforesaid two articles and recovered the same. His statement suggests that the recovery of the aforesaid articles, at the instance of the appellant- accused, was stage-managed. PW23 Gopal Krishan Sharma, the photographer, also stated that the towel was found hanging on the branches of a tree and not hidden under any stone. Approver Surjit Kumar (PW3) also stated that the towel and the torch had been thrown by the appellant-accused when the dead-body was being carried away and that the towel landed on the branches of a Kainth tree. Under these circumstances, the evidence regarding recovery of towel and torch of the deceased, allegedly at the instance of the accused-appellant, can also not be believed. Ravindera Devi (PW8) examined by the prosecution to seek corroboration of the testimony of PW3, the approver, to the extent that the appellant-accused came to call him at mid-night also does not inspire confidence. The witness did state that Surjit Kumar was at her place on the relevant night and the appellant came there around mid-night to call him and took him along, but the approver himself says that he was at his own house on the fateful night, when the appellant-accused came to call him. The house of the appellant-accused is in a village, different from the village of PW8 Ravindera Devi and the distance between the two villages is eight to ten kms, per testimony of PW2 Surjit Kumar. Thus, the testimony of PW8 Ravindera Devi also does not corroborate the testimony of the approver. Approver is shown to be a liar by some other material also available on the record. He stated that he was not 9 accompanied by any police officer, when he presented the application for grant of pardon and when his statement was recorded but record of the proceedings conducted by the Chief Judicial Magistrate on the application for grant of pardon shows that at the time of making of the application and also recording of his statement Exhibit PW4/A, Investigating Officer of the case, namely, Shri Sanjeev Chauhan (PW25) was present. Again the approver stated that the dead-body was almost naked, except for its wearing a jumper, when he carried it on being forced by the appellant-accused, but the photographs of the dead body, which were taken on the spot, and which are Exhibits P23/A, PW23/D, PW23/E, PW23/F and PW23/H show that the dead- body was wearing read coloured (printed) kameej and salwar. It is not the case of the prosecution that the dead-body was dressed, after being spotted naked. The above discussed position clearly shows that not only that the testimony of the approver is not corroborated, but is, in fact, contradicted in material particulars, not only by the testimony of other witnesses, but also by his own statement. Consequently, the appeal is accepted. The judgment of the trial Court convicting and sentencing the appellant is set-aside. He is acquitted. Being in jail, serving out the sentence awarded by the trial court, he is ordered to be released forthwith, if not required in any other case. (Surjit Singh) Judge. (Surinder Singh) Judge. June 19, 2008 (bm) 10