IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 85 of 1996 Judgment reserved on 23.2.2010 Date of Decision : March 2, 2010 State of Himachal Pradesh Appellant Versus Tulsi Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Singh Thakur, Addl. Advocate General with Sh. Ram Murti Bisht, Dy. A.G. for the appellant. For the respondent : Mr. Ramakant Sharma, Advocate, for the respondent. Sanjay Karol, J. This appeal filed by the State under Section 378(3) of the Code of Criminal Procedure is directed against the judgment of acquittal dated 20.2.1995 passed by the Sessions Judge, Sirmaur District at Nahan, H.P. in case No. 55-N/7 of 1994 under Section 302 of the Indian Penal Code, titled as State of Himachal Pradesh versus Tulsi Ram. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 It is the case of the prosecution that deceased Sh. Punia Ram was married to Smt. Athro Devi, sister of accused Sh. Tulsi Ram. The deceased who was a liquor addict, after consuming liquor used to pick up quarrels. Since Punia Ram maltreated Smt. Athro Devi, about four days prior to the incident she had left for her parental house. On 4.11.1991 Sh. Tulsi Ram visited Sh. Punia Ram’s house where, after both had consumed liquor, the former hit the latter on the head with a danda as a result of which Sh. Punia Ram died at the spot. The incident was witnessed by minor Ramesh Kumar (aged 5 to 6 years) son of Sh. Punia Ram. On hearing the cries of the minor Ramesh Kumar, one Sh. Tulsi Ram son of Sh. Chet Ram came at the spot. He was informed by the minor that his Maama, accused Sh. Tulsi Ram had hit his father on his head with a danda. Thereafter Sh. Tulsi Ram (son of Sh. Chet Ram) sent for father of the deceased who lived in a Dogari. Sh. Sadhu Ram (PW-3) and Sh. Bahadur Singh (PW-2), father and brother of the deceased came at the spot on the next day when they were informed by the minor that the accused Tulsi Ram had given a blow of danda on the head of the deceased after consuming liquor. Consequently Sh. Bahadur Singh lodged a report with the police post, Singhpura and his statement under Section 154 Cr. P.C. (Ext. PA) was recorded on 6.11.1991. The police machinery swung into motion and F.I.R. (Ext. PM) dated 7.11.1991 was registered with Police Station Paonta Sahib. On the basis of the disclosure statement of the accused (Ext. PD) the weapon of offence namely the danda was recovered vide 3 memo (Ext. PE). The clothes of the deceased were taken into possession and the articles were sent for chemical analysis. With the completion of investigation, challan was presented in the Court. After completing all requirements under Section 207 Cr. P.C. the case was committed to the Court of Sessions Judge, Sirmaur. The accused who was charged for an offence punishable under Section 302 I.P.C. to which he did not plead guilty. In all, the prosecution examined 14 witnesses and the statement of the accused under Section 313 Cr. P.C. was also recorded. The court below acquitted the accused of the charged offence. Hence the present appeal. There is no dispute with regard to the death of Sh. Punia Ram. The same stands proved from the inquest report (Ext. PB) and the post mortem report (Ext. PJ) duly proved by Dr. Inderjit Singh (PW-10). The incident is alleged to have taken place on 4.11.1991. Admittedly the F.I.R. was registered with the police station Paonta Sahib on 7.11.1991, based on the report dated 6.11.1991 registered by police chowki, Singhpura. The prosecution case rests on the testimony of Sh. Tusli Ram (PW-1), Sh. Bahadur Singh (PW-2), Sh. Sadhu Ram (PW-3) and Sh. Ramesh Kumar (PW-12). Undisputedly the incident is alleged to have been witnessed by PW-12 alone. Witness Sh. Tulsi Ram (PW-1), in fact has contradicted himself rendering his version to be unbelievable. His testimony does 4 not inspire confidence. No doubt in his examination-in-chief it has come that upon hearing the cries of the children of Sh. Punia Ram when he went to the spot he saw Sh. Punia Ram lying in the courtyard with blood oozing out from his head he was told by Ramesh (son of Punia Ram) that his Maama Sh. Tulsi Ram (accused) had hit his father with a stick (lathi), but however in his cross examination he has categorically deposed that Ramesh had not disclosed the name of the Maama who had given a blow with stick. He further deposed that at no point of time he disclosed the name of accused Tulsi Ram either to Sh. Mani Ram or to the police. That apart, the earlier version of Sh. Tulsi Ram stands belied by PW-12, according to whom none had visited the spot when his father had died after receiving injuries. According to him he also did not disclose to anyone that his Maama Sh. Tulsi Ram had killed his father and it was only on the day following the incident that the name of accused Tulsi Ram was disclosed to Sh. Mani Ram and one old man whose name he did not know. Importantly PW-12 has not identified PW-1 to be the same old man. In fact presence of PW-1 at the spot on the date of occurrence is doubtful. Except for the bald statement of PW-1 there is nothing on record to prove his presence at the spot. Even according to PW-12 the first persons to arrive at the spot were his brother Khatri and sister Rajjo. Hence the statement of Sh. Tulsi Ram (PW-1) cannot be relied upon to prove the case of the prosecution. 5 According to Sh. Bahadur Singh (PW-2) and Sh. Sadhu Ram (PW-3), PW-12 had informed them that the accused had hit the deceased with the danda on the head. This version of theirs does not inspire confidence for two reasons: (i) Ramesh Kumar (PW-12) does not say so in his statement (ii) Sh. Bahadur Singh does not mention about the said fact in his report Ext. PW-14/A lodged with the Police Post, Singhpura on 6.11.1991. The said report is the first version lodged with the police. In fact the report does not even disclose the cause of the death. The incident is alleged to have taken place on 4.11.1991. The matter was reported to the police by PW-2 on 6.11.1991 and as per the version of PW-3, the said report was lodged on the very next day on which he was informed by Sh. Mani Ram about the unfortunate death of his son Sh. Punia Ram. What transpired between the 4th and 5th of November, 1991 has not been brought on record rendering the case of the prosecution to be doubtful. The link in the chain of events is missing. Statement of Ramesh Kumar (PW-12) was recorded in the Court on 9.9.1992 when he was recorded to be 6 to 7 years of age. The alleged incident took place on 4.11.1991 when he must be 5 to 6 years old. It is a settled position of law that conviction of an accused can be based on the sole testimony of a child witness if it is found that he was competent to testify and after careful scrutiny of evidence the Court is convinced about the quality and reliability of the deposition. The need for corroboration of testimony of the child 6 witness is more a important rule of prudence and practical wisdom than law. [ Ratansingh Dalsukhbhai Nayak vs. State of Gujarat, (2004) 1 SCC 64 and Acharaparambath Pradeepan and another vs. State of Kerala, (2006) 13 S.C.C. 643 ] In his statement, PW-12 has admitted that he has many Maamas out of whom names of Sh. Rongi, Sh. Geeta, Sh. Gumanu and Sh. Tulsi Ram were disclosed by him in the Court. Admittedly he has been staying with his grand-father Sh. Sadhu Ram (PW-3) and uncle Sh. Bahadur Singh (PW-2). He disclosed the name of accused Tulsi Ram to the police only after 3 – 4 days of the occurrence of the incident and that too at Paonta Sahib. Thus the possibility of the minor witness being tutored to save the real culprits cannot be ruled out. Importantly the statement of PW-12 was recorded under Section 164 Cr. P.C. when he was produced before the Judicial Magistrate, Paonta Sahib on 7.11.1991. Even in the said statement he did not disclose the name of the accused to be the uncle who had hit his father. Unfortunately Sh. Mani Ram and children of the deceased (Khatri and Rajjo) were not examined by the prosecution for which no explanation is forthcoming. Their deposition was necessary for the purpose of eliciting the truth. Undisputedly PW-2 and PW-3 had not reached the place of the occurrence on the date of the incident itself. Record does indicate that the villagers had collected after the incident. Why was 7 the matter not reported to the police immediately has also not been explained. Who took care of the children in the absence of elderly persons has also not been explained. As such, the prosecution version does not inspire confidence. Even with regard to the recovery of the weapon of offence Ext. P1 there is no conclusive proof. Sh. Telu Ram (PW-6) has not supported the prosecution. He has not identified the weapon of offence Ext. P1 either. His cross examination by the prosecution does not shake his testimony. There is no other cogent, reliable and convincing material on record which would conclusively prove that it was the accused Tulsi Ram alone, who had given the blow of danda on the head of the deceased Punia Ram, who died due to the same. Prosecution has not been able to prove its case beyond reasonable doubt. The Court below has correctly appreciated the material on record while arriving at its conclusion. There is no merit in the appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 2, 2010 (PK)