IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 330 of 2001 Date of Decision: 17.6.2011 State of H.P. …Appellant. Versus. Partap Chand and another … Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Rajesh Mandhotra, Dy.Advocate General. For the Respondent(s): Ms.Divya Sood, Advocate vice Mr.Anup Chitkara, Advocate. __________________________________________________________________ Deepak Gupta, J (Oral). 1. This appeal by the State is directed against the judgment dated 27.12.2000 passed by the learned Additional Sessions Judge-II, Kangra at Dharamshala in Sessions trial No.4 of 1999 whereby the accused were acquitted of having committed offences punishable under Sections 342/302 read with Section 34 IPC. 2. The prosecution story, in brief, is that on the night intervening 27th / 28th September, 1998 the accused wrongfully and illegally confined and murdered deceased - 2 - Gogha Ram at Forest Training School, Kuthera where the deceased was employed as a Chowkidar. 3. The undisputed facts are that the dead body of Gogha Ram was found in the morning of 28.9.1998. The body was tied to a tree just in front of the office of the Divisional Forest Officer. The matter was reported to the police and the wife made a complaint to the police. She did not name anybody in the complaint but stated that her husband had been killed on account of some enmity. Body of the deceased was subjected to post mortem, investigation conducted and thereafter the accused charged with having committed the offences as aforesaid. They have been acquitted by the learned trial Court. Hence, the present appeal. 4. There is no direct evidence against the accused. The only evidence which the prosecution has produced to link the accused with the commission of the offence are the statements of Budhi Singh PW-5 and his mother PW-6 Moran Devi. 5. PW-5 on the date of his examination in the Court was aged about 14 years. His father is also employed in the Forest Range, Kuthera. According to this witness his house is just opposite to the forest school building and on 27.9.1998 when he had gone to bring water from the hand-pump just after sunset he saw both the accused persons dragging Gogha Ram by his arm toward the Dam. The neck of Gogha - 3 - Ram was hanging down. He then took the water to his house and then went away to play. The next day he saw the family members of Gogha Ram crying and then the witness Budhi Singh told his mother what he had seen the previous evening. His mother told him not to disclose this fact to anybody. After about 1 ½ months he told Bhumi Singh and Warsat Deen about the incident. On 5th November, 1998, the police recorded his statement and on 6th November, 1998 statement of this witness was recorded before the Magistrate at Nurpur. 6. Even at the time of the incident, this witness was aged about 13 years. He was not a small child. If he had seen the incident and came to know that Gogha Ram had died, on the next day he would not only have told his mother but also his father and other villagers about the incident. The incident took place in a small village and it cannot be believed that this witness remained quiet for more than one and half months. It also cannot be believed that the mother did not talk about the incident to her husband. If the witness could talk about the incident to Bhumi Singh and Warsat Deen it cannot be believed that he would not have told his father about the same. 7. There are material contradictions in the statement of this witness as recorded in the Court and as recorded before the learned Magistrate at Nurpur. Whereas in Court he stated - 4 - that he had seen the deceased being dragged, this fact is not mentioned in the statement recorded before the Magistrate. It was also not recorded that he had told his mother about this fact. He also did not tell the Magistrate that he had narrated the incident to Bhumi Singh and Warsat Deen 8. PW-6 Smt.Moran Devi is the mother of PW-5. According to her, PW-5 told her that he had seen the accused dragging the deceased. She asked her son to keep quite and not disclose this fact to anybody. She has explained that she did so because her husband was also working as a Safai Karamchari in the same School. On 4.11.1998 Bhumi Singh and Warsat Deen came to their house. Her son had already told them about the occurrence and thereafter she and her husband informed the police. In her cross examination she stated that she never informed her husband about this fact. She has also admitted that her husband was interrogated about this incident but she did not tell her husband what her son had told her. She also admits that her husband was initially a suspect and she alongwith other ladies went to the police and told them that her husband is innocent having no connection with the crime. Despite this, she did not told the police about what had been told by her son. 9. The learned trial Court was fully justified in discarding the testimony of PWs 5&6. If PW-6 had been told about the incident by PW-5 and her husband was also a suspect in the - 5 - murder it would have been human reaction for her to have told her husband as well as the police that her son had told her that he had seen the two accused dragging the deceased. This story first came up more than one and a half month later. There is no explanation as to why such a version was not given to the police immediately after the occurrence. If this had been done, her husband could have been saved the humility of being interrogated by the police for a number of days. Neither the son nor the wife would have kept quite when their father/husband was interrogated by the police. This conduct is highly unnatural and makes their statements totally unbelievable. It was only when PW-10 Bhumi Singh who is brother of PW-6 appeared on the scene that this story was disclosed. It appears that this has all been cooked to divert the intention from the real criminals. 10. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. June 17, 2011 ( Sanjay Karol ),J. PV