IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:163/1998 Decided on: 31.3.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Balbir Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Additional Advocate General. For the Respondent : Mr. M.S. Chandel, Sr. Advocate with M/s N.S. Chandel and Virender Thakur, Advocates. _____________________________________________________ Surjit Singh, J (oral). State has sought reversal of the judgment dated 30.9.1997 of the learned Sessions Court, whereby respondent, who was charged with and tried for offence, under section 302 of the Indian Penal Code, has been acquitted. 2. Deceased Anita was married to the respondent in November, 1994. Respondent is employed in the Indian Army. After the marriage, the deceased used to live at her in-laws’ place, i.e. to say, the place of the respondent. On 8.8.1995, father of the respondent went to the parental place of the deceased and 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 informed her mother PW-4 Shankutla Devi that the deceased had gone missing. Shankutla asked the father of the respondent to search for her and she also left her house accompanied by PW-5 Daljit Singh and PW-6 Jagdev Singh in search of the deceased. PW-4 Shankutla accompanied by PW-5 Daljit Singh and PW-6 Jagdev Singh went to the house of respondent. He was taking his meals. When he was asked by Shankutla and the above-named two persons accompanying her, as to where the deceased had gone, he allegedly retorted that he had done whatever he wanted to do and they (Shankutla and her companions) were free to take whatever action they intended to take. 3. In the evening around 3.00 or 4.00 P.M., dead body of Anita was found in a rivulet below a bridge at a distance of 10-12 feet from the edge of the bridge. Police was informed by Mangal Singh, father of the deceased. He lodged FIR Ex.PW-16/A at 8.20 P.M. PW-20 ASI Duni Chand went to the spot. He inspected the spot and arranged to retrieve the dead body from the rivulet. Inquest was conducted and report Ex.PW-7/A was prepared. Dead body was sent to Zonal Hospital, Dharamshala for postmortem, where PW-2 Dr. Ashok Sharma conducted the postmortem examination. He noticed the following ante-mortem injuries on the head of the deceased: 1. A lacerated wound over the left eye brow on lateral side 1 ½ "x1”x ½ ". 2. A lacerated wound of 1”x ½ "x1/2” on left side of face, just below the left eye. No synosis seen. No mark of ligature on neck. 3 4. He gave the opinion that time lag between the injury and death was unascertainable and death appeared to have taken place between 36 hours of the death and postmortem, which was conducted on 9.8.1995 at 11.30 A.M. 5. During the course of investigation, it came to light that respondent before marrying the deceased was engaged to a lady, named Darshna, daughter of PW-8 Ramesh Chand. He broke that engagement and married the deceased with whom he was in love and this marriage was against the wishes of the parents of the deceased. Father of said Darshna, namely, PW-8 Ramesh Chand had filed a complaint, under section 420 of the Indian Penal Code and some other penal provisions. It appears that he was prepared to compromise the matter with the respondent provided he paid Rs. 50,000/-. 6. Respondent wrote a few letters to the deceased from his place of posting. In one letter written in January, 1995, he expressed some anguish and annoyance over her ‘misconduct’ of leaving his parents’ house for the place of her sister despite his instructions not to leave his parents’ place in his absence. However, from the subsequent letters, it seems that he had condoned the aforesaid act of ‘misconduct’ on the part of the deceased because he addressed her and wrote things in an affectionate manner. 7. Respondent also addressed one letter on 25.7.1995 to Darshna to whom he was earlier engaged and the engagement with whom had been broken by him. As per this letter, he asked 4 Darshna to see him on 7.8.1995 at Gaggal so that he could explain to her the reasons for his not marrying her and what compelled him to go in for marriage with the deceased. He also offered Rs. one lakh. It was also written in the said letter, which is Ex. PW-8/B, that in case she did not turn up at Guggal on 7.8.1995, he would be ending his life. 8. It appears that Darshna did not go to Gaggal to meet the respondent on 7.8.1995. However, her mother, as per testimony of PW-8 Ramesh Chand, the father of said Darshna, had gone to see the respondent. On the morning of 8.8.1995, the deceased after serving tea to the family members at 5.30 A.M., left house and was not seen alive thereafter. 9. During the course of trial, prosecution mainly relied upon the testimony of PW-4 Shankutla, the mother of the deceased, PW-5 Daljit Singh and PW-6 Jagdev Singh to prove the charge against the respondent. According to the prosecution, the conduct of the respondent, as noticed by the above named three witnesses noticed hereinabove, pointed out to the guilt of the respondent. 10. We have heard the learned Assistant Advocate General and also counsel for respondent and perused the evidence. 11. Accordingly to Shankutla (PW-4), Daljit Singh (PW-5) and Jagdev Singh (PW-6), when they went to the house of respondent on 8.8.1995, after coming to know that the deceased had gone missing, they saw the respondent taking his meals without any tension and in normal way and when they asked as to where the 5 deceased was, he told that he had done whatever he wanted to do and they were free to take whatever action they wished to take. 12. All the three witnesses were confronted with their previous statements made to the police, under section 161 of the Code of Criminal Procedure, in which the aforesaid facts did not find mention. PW-4 Shankutla in her statement under section 161 of the Code of Criminal Procedure with which she was confronted told the police that when she accompanied by PW-5 Daljit Singh and PW-6 Jagdev Singh went to the house of the respondent, he was sitting holding his head in his hands. She denied having made such a statement. PW-5 Daljit Singh, however, in his cross- examination, admitted that when they went to the house of respondent he was sitting holding his head in hands. Statement of PW-5 Daljit Singh that the respondent was sitting in remorse gives a lie to the testimony of the mother of the deceased that the respondent was taking his meals and was looking tension free. 13. It has come in the evidence that the marriage of the deceased with respondent had taken place against the wishes of the parents of the deceased. PW-6 Jagdev Singh has admitted this fact that annoyance of the parents of the deceased was to the extent that they did not participate in her marriage with the respondent and also broke all ties and bonds with the deceased. Therefore, the testimony of Shankutla (PW-4) and her two relatives, named PW-5 Daljit Singh and PW-6 Jagdev Singh cannot be relied upon without independent corroboration. 6 14. It has come in the testimony of the doctor, who conducted the postmortem, namely, PW-2 Dr. Ashok Sharma, that the ante- mortem head injuries found on the dead body could have been sustained as a result of fall or jump into the rivulet where the dead body was stated to have been spotted. There were only two injuries on the head of the dead body, as per testimony of PW-2 Dr. Ashok Sharma. 15. For the foregoing reasons, we see no merit in the appeal. The same is, therefore, dismissed. (Surjit Singh), J (Rajiv Sharma), J 31.3.2010 *awasthi*