IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 2 of 2001 Judgment Reserved on : 20.12.2010. Date of Decision : March 5, 2011 State of Himachal Pradesh Appellant Versus Smt. Daropti Devi and another Respondents Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1Yes. For the appellant : Mr. R. K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General for the appellant/State. For the respondent : Mr. Surinder Sharma, Advocate, with Mr. Paresh Sharma, & Mr. Shivank Panta, Advocates, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 8.2.1999, accused were put to trial. In terms of judgment dated 1.9.2000 passed by the learned Sessions Judge, Shimla, in Sessions Trial No. 11-S/7 of 1999, titled as State versus Smt. Daropti Devi and another, accused stand acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that Sarojni Devi (Accused No. 2) daughter of Daropti Devi (Accused No. 1) had contracted love marriage with deceased Parkash Chand. One month prior to 8.2.1999, the date on which Parkash Chand died, Sarojni Devi left her husband and started living separately with her mother in village Janoti. The distance between the house of Parkash Chand in village Tikri and Daropti is about half a kilometer. On 5.2.1999 Sarojni Devi lodged a police report (Ext. PG) to the effect that deceased assaulted her at place known as Gumma. She sustained injuries on her cheek, mouth and ear. Police looked into the same. Her medical examination could not be completed at the local centre therefore she was asked to make herself available at the Government Hospital, Shimla. On 8.2.1999 at about 6.30 a.m. Sarojni Devi came near the house of deceased Parkash Chand and shouted for him. She told him that her mother had immediately wanted to see him at her place. Sh. Bala Ram (PW-1) (brother of the deceased) and Sh. Mansa Ram (PW-3) (uncle of the deceased) also heard the shouts of Sarojni Devi. Within 15 – 20 minutes they saw Parkash Chand going from his house in village to the house of the accused in village Janoti. On 8.2.1999 at about 11.45 a.m. Sarojni Devi lodged report (Ext. PH) at Police Station, Kotkhai to the effect that deceased Parkash Chand had fought with her and was likely to commit serious crime. Acting on the same Sub Inspector Balwant Singh (PW-9) proceeded towards the house of the accused. Somewhere near a place known as Shilroo, Balwant Singh (PW-9) met Sh. Bala Ram 3 (PW-1) who informed him that accused had murdered Parkash Chand as he had seen his dead body in the kitchen of the house belonging to accused Daropti. He also saw Daropti standing in the verandah wearing blood stained clothes. After reducing statement (Ext. PA) of Sh. Bala Ram (PW-1) into writing, Balwant Singh (PW9) proceeded to the spot. He found the dead body of Parkash Chand lying inside the house of accused Dropati Devi. Blood was splattered all over. He also found blood stained darat (Ext. P1), danda (Ext. P2), piece of iron pipe (used for blowing air into the hearth, Ext. P3) and piece of stone (Ext. P4). Balwant Singh collected samples of blood vide seizure memo (Ext. PB) and the blood stained weapons of offence (Ext. P1, P2, P3 & P4) vide seizure memo (Ext. PC). He prepared inquest report (Ext. PD and Ext. PD/1) and sent the body to the Medical Officer, Civil Hospital, Kotkhai for post-mortem examination. On the statement of Sh. Bala Ram, F.I.R. No. 22 of 1999 (Ext. PJ) dated 8.2.1999 was registered under Sections 302 read with Section 34 I.P.C. at Police Station, Kotkhai. Dr. Rakesh Mohan (PW-10) conducted post-mortem examination and submitted his report (Ext. PM). According to the doctor death occurred due to head injury causing hemorrhage and hypovolumic shock. Police collected clothes belonging to the accused/deceased and alongwith other seized articles sent them for chemical examination. Statements of the witnesses recorded, site plan prepared and with the completion of investigation challan was presented in the Court for trial. 4 3. Both the accused were charged for having committed offence punishable under Section 302 read with Section 34 I.P.C. to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined twelve witnesses and statements of the accused under section 313 Cr. P.C. was also recorded in which accused Daropti Devi stated that “I am a widow. There is no male member in our family. I do not have any brother. My father is also dead. I have only four daughters. The deceased used to come to our house and assault us. I had to make a petition to the Hon’ble High Court for providing protection and security. We were provided security under the orders of the Hon’ble High Court. Even after the dissolution of my daughter’s marriage with the deceased, he used to follow her everywhere. He would harass her and give beating to her” and accused Sarojni stated that “I had been forced by the deceased to marry him. I filed a petition in the Hon’ble High Court and I was provided security by the State, under the orders of the High Court. Eight months prior to the death of Parkash Chand, my marriage with the deceased was dissolved by the District Judge, on my request. Even after the dissolution of the marriage, the deceased used to interfere in my private life.” 5. In her defence Accused No. 2 Sarojni Devi stepped into the witness box and examined herself. 6. The Court below acquitted the accused of the charged offence on the ground that testimonies of the spot witnesses did 5 not inspire confidence and that accused without exceeding acted by way of private defence and sufficiently explained the circumstances resulting into the death of Parkash Chand. 7. We have heard Sh. R. K. Sharma, learned Senior Addl. Advocate General ably assisted by Mr. Rajinder Dogra, learned Addl. Advocate General for the appellant-State and Mr. Surinder Sharma, learned Counsel ably assisted by Mr. Paresh Sharma and Mr. Shivank Panta, learned counsel for the respondents and have also perused the record. 8. These are certain undisputed facts emerging from the record. Relationship between the parties is not in dispute. Though disputed by the accused, it is the case of prosecution that sometime in the year 1994 Sarojni Devi had contracted love marriage with Sh. Parkash Chand. Whereas, according to the accused, Sh. Parkash Chand after abducting Sarojni Devi had raped her and Daropti Devi had to initiate legal proceedings for recovery/custody of her daughter. These facts are not relevant for determining issue. However it cannot be disputed that in the year 1995 Daropti Devi filed CWP No. 543 of 1995 before this Court alleging intimidation and harassment on the hands of the deceased and his goondas and that they be provided police protection. The petition was disposed of vide judgment dated 28.6.1995 (Ex. DA and Ex. DB). Division Bench of this Court directed the police to provide protection to the family of Daropti Devi. Significantly only when the deceased furnished undertaking to the effect that he would maintain peace 6 and not commit further breach thereof was the petition disposed of. Court directed continuance of investigation of criminal case initiated against the accused. Liberty was granted to the accused to approach the authorities including the concerned police station. 9. It also cannot be disputed that on 19.5.1997 Sarojni Devi instituted a petition for dissolution of her marriage under the provisions of Hindu Marriage Act, 1955 which was allowed in terms of judgment and decree dated 24.4.1998 (Ext. DC and Ext. DD) and marriage between Sarojni Devi and Parkash Chand stood dissolved. The parties accepted the verdict. 10. Through the statement of Constable Om Parkash (PW-5) it is also apparent that on 5.2.1999 Sarojni Devi lodged a report with police station, Kotkhai and entry made in the roznamcha (Ext. PG) was singed by both the accused. It is evident that on 5.2.1999 Parkash Chand assaulted Sarojni Devi at a place known as Gumma as a result of which she sustained injuries on her cheek, mouth and ears. This witness has explained that lady constable (Babita) got Sarojni Devi medically examined. On 6.2.1999 she was referred to the D.D.U. Hospital at Shimla for X-ray examination. Since 7.2.1999 was Sunday therefore Sarojni was asked to meet the lady constable in the hospital at Shimla on 8.2.1999. Dr. Sarita Chauhan (PW-12) has also testified that she locally examined Sarojni and referred her to an expert at government hospital, Shimla. 7 11. It is also not in dispute that Sh. Balwant Singh (PW-9) visited the house of accused and found the dead body of the deceased lying on the floor of the kitchen of the house belonging to accused Dropati Devi. Blood was splattered all over and the alleged weapons of offence (Ext. P1, P2, P3 and P4) were lying inside the kitchen. It is also not in dispute that during investigation samples of blood were seized and inquest report prepared by Sh. Balwant Singh. 12. It is also not in dispute that on 8.2.1999 Sarojni Devi visited police station Kotkhai and lodged report (Ext. PH) to the effect that fight took place with Parkash Chand who could resort to any measure. It is also an admitted fact that post mortem examination of the deceased was conducted by Dr. Rakesh Mohan (PW-10) according to whom deceased suffered injuries on his skull and other parts of body. 13. Before we deal with the deposition of accused Sarojni Devi we shall first deal with the prosecution case. 14. Out of twelve prosecution witnesses, statements of Sh. Bala Ram (PW-1), Sh. Devi Dass (PW-2) and Sh. Mansa Ram (PW-3), independent witnesses and ASI-Balwant Singh (PW-9) and Inspector Ram Rattan (PW-11), police officials are relevant. 15. According to ASI-Balwant Singh (PW-9) after Sarojni Devi lodged report (Ext. PH) on 8.2.1999 he “immediately” proceeded to the spot in the company of HC-Surjit Singh and constable Bhoop Ram. Now these persons have not been examined in court. Their 8 non examination would become significant as we shall notice hereinafter. On the way he met Sh. Bala Ram (PW1) who complained that his brother was murdered by the accused. On the spot, he first recorded the statement (Ex.PA) of Sh. Bala Ram and thereafter proceeded to the village. Upon reaching he noticed the dead body of Parkash Chand lying in the kitchen of the house belonging to Daropti Devi. He immediately called the police station and informed the Superintendent of Police on telephone. He himself took the photographs and carried out investigation at the spot. According to him, both the accused present at the spot were wearing blood stained clothes. He seized incriminating articles and sealed them at the spot. We are of this view that this witness has not come out with whole truth. There is nothing on record to prove that he telephonically gave information about the incident at the police station or the Superintendent of Police. Police has concealed certain information from the Court. From the statement of HC- Rajinder Singh (PW-6) it is evident that F.I.R. was recorded on the basis of statement (Ext. PA) brought to the police station by constable Bhoop Ram. This casts a serious doubt about the genesis of the prosecution story. Further his version that he recorded the statement of Sh. Bala Ram on the side of the path at the place where he met him on the way to the village stands contradicted by Sh. Bala Ram himself according to whom the statement was recorded in village Tikari. F.I.R. in question was recorded on 8.2.1999 at 6.45 P.M. but was sent to the Court of the Addl. Chief 9 Judicial Magistrate only on 16.2.1999. The delay is unexplainable. What intimation was given by ASI Balwant Singh to the police at the police station and who recorded the same is not evident from record. His further statement that he sealed the seized articles at the spot stands materially contradicted by PW-1 according to whom articles were taken away by the police to the police station where they were segregated into separate parcels and sealed. It is in this background non examination of constables Surjit Singh and Bhoop Ram acquires significance. What exactly transpired at the spot thus cannot be said to have been conclusively proved by the prosecution. Version of PW-9 that he also saw Sarojni Devi wearing blood stained clothes is obviously false. How is it that the same were not noticed by him when some day Sarojni Devi visited the police station for lodging the report. 16. We may also notice that as per the version of constable Sanjiv Kumar (PW-8) twenty sealed parcels and three sealed packets were deposited with the Forensic Science Laboratory, Junga. Statement of Inspector Ram Rattan (PW-11) to the extent that the seized articles were sealed and packed into parcels sealed at the spot also stands falsified on record. Report of the chemical examiner is not on record. Whether weapons of offence (Ext. P1, P2, P3 and P4) were stained with the blood of the deceased or not is also not evident from the record. Even according to Sarojni Devi darat was never used by way of self defence. 10 17. Prosecution case primarily rests on the testimony of spot witnesses i.e. PW-1, PW-2 and PW-3. Having minutely examined their testimonies we are of the view that not only they do not inspire confidence but in fact PW-1 has made a statement which is false to his personal knowledge. 18. An endeavour was made by PW-1 to prove that nothing was amiss between the parties who in fact were having best of relationship and that it was the accused who hatched a conspiracy to do away with the life of the deceased. Significantly prosecution has neither alleged nor proved any motive for the same. According to him “till about a month prior to the incident” Sarojni and Parkash were living together and only thereafter due to certain differences which had cropped up between them did Sarojni start living with her mother. 19. He states that accused never lodged any complaint against his brother. However contradicting himself he admits that the accused had in fact lodged a report of abduction and rape against the deceased. He states that on 8.2.1999 at about 6.00 a.m. he saw Sarojni come to a point in between his house and the house of Daropti Devi from where she shouted for the deceased and told him that her mother had wanted to speak with him. Immediately thereafter he saw Parkash Chand leaving for the house of Daropti Devi. At about 2.45 p.m. while he was on his way from his house to village Palli he saw Daropti Devi standing in the verandah wearing blood stained clothes. He peeped inside the house of Daropti Devi 11 and saw his brother lying on the floor of the kitchen. Suspecting that his brother had been killed he immediately proceeded for the police station. However, on way he met PW-9 to whom he narrated the incident. Police accompanied him back to the village, saw the dead body, recorded his statement and after collecting the articles at the spot took them to the police station where they were segregated into parcels and sealed. Accused Sarojni was also present at the spot. 20. We find that this witness has contradicted himself. In fact trial court pointed out contradiction by putting the following: “C.Q. To the police you stated, vide portion B to B of Ext. PA, that you went to village Janoti around 2.45 P.M., to find out why your brother Parkash who had gone to Daropti’s place had not returned. In the court you have stated that that day you were going to Palli and it was then that you saw the dead body of your brother and the clothes of Daropti smeared with blood. Which of the two statements is correct Ans. My statement in the court is correct as I was going to Palli that day, in connection with some personal piece of work.” 21. Even otherwise his version does not inspire confidence. Sarojni could not have been present at the spot as even according to the prosecution, at about 11.30 a.m. she was at the police station, Kotkhai and it takes time to reach village Janoti from Kotkhai. Further in cross examination this witness denies that 12 Sarojni Devi had filed a petition for divorce against Parkash Chand. Now this statement is false to his personal knowledge as in his version (Ext. PA), with which he was confronted, it is so stated. Reference is also about the incident which took place at Gumma on 5.2.1999. His version that he was on his way to village Palli stands contradicted by his earlier version (Ext. PA) wherein he got recorded that he waited for his brother to return till noon and only thereafter went to search for him to village Janoti. Further in cross examination he states that while calling Parkash Chand, Sarojni Devi told him that she intended to go to Shimla upon which his brother asked her to wait as he too wanted to go to Shimla and offered that the both could go together. He later on changed this statement to state that it was Parkash Chand who first told Sarojni Devi that he had a plan to go to Shimla and Sarojni Devi told to him that she also wanted to go to Shimla and that the two could go together. Significantly PW-3 Mansa Ram, who also claims to have heard accused Sarojni Devi shout for Parkash Chand does not say that the two had any talk about their going together to Shimla that day. He further admits that after seeing the body of his brother he did not make any inquiries and straightaway proceeded to the police station. Now this is a very strange and unnatural conduct of the brother. If relations between the parties were cordial then why did he did not make any inquiry from Daropti. How did he come to know that the accused had murdered his brother? What was the basis of his suspicion is not deposed. Thus not much reliance can be placed on the 13 statement of this witness. The genesis of the prosecution case appears to be nothing but falsehood. 22. Relationship between the deceased and the accused were strained. There was no reason for them to have called for the deceased. In the cold and chilly month of February, normally villagers do not move out of their houses at 6.00 a.m. Even according to the prosecution houses of other persons are there in the village. Surprisingly none except for the relatives of the deceased heard the shouts of the accused. Thus the genesis of the prosecution story stands falsified from the record. It is unbelievable that after killing the deceased, Daropti in public gaze, would be standing wearing blood stained clothes in the verandah of her house. 23. Sh. Devi Dass (PW-2) is just a witness to recovery of the seized articles. According to him the police had called him to the house of Daropti at about 5.00 – 6.00 p.m. on 8.2.1999. His testimony is not of much significance in view of the admission made by the accused. 24. Sh. Mansa Ram (PW-3) is uncle of the deceased. This witness has contradicted the version of PW-1. According to him Sarojni did not tell Parkash the reason why her mother had called him. Even he has not deposed truthfully. According to him Sarojni had lived with Parkash for four years which fact stands falsified by way of judicial record. 14 25. Thus in our view prosecution has not been able to prove its case at all. 26. However the matter does not end here. Sarojni Devi has stepped into the witness box. Relevant portion of her deposition reads as under: “… On 5.2.1999, around 5 P.M. when I was at Gumma, the deceased assaulted me. He pushed me and threw me on the ground and slapped me on one of my ears. Blood started oozing from the ear. I reported the matter to the police. Police took me to Kotkhai Hospital for medico legal examination. By the time I was taken to the hospital, it had closed. I was given some medical treatment. I was called by the police for medico legal examination the next day. I went to the hospital the next day, but the machine by means of which was to be examined was out of order. Next day it was Sunday. A Lady Constable told me that on Monday I should see her in Ripon Hospital, Shimla for my medico legal examination. On 8.2.1999, when I was ready to leave my mother’s place for Shimla, deceased Parkash came there. The time was around 7 or 7.30 A.M. I was in the Varanda of the house of my mother and was waiting for the bus. The deceased was having a Drat and a Danda in his hands when he came to my mother’s place. On reaching our place, deceased pronounced how I could go to Shimla when he was going to finish me immediately. I got frightened and went inside my mother’s house. He then threw a stone at me when I was inside the room. The stone did not hit me. It fell in the kitchen of my mother’s house. Then he entered our house. I picked up the stone that had been hurled by 15 the accused and threw the same on him. The stone hit the deceased on his head. Blood started flowing from his head. Then he caught me by my hair. I then cried for help. My sisters Rachna and Bandna, who were working in a nearby field, came there. When my sisters came the deceased was still holding me by me plait. One of my sisters picked up the Danda which the accused had brought with him. Another sister picked up a piece of pipe meant for blowing fire. My sisters hit the deceased with the Danda and the piece of pipe. In the meanwhile my mother who had gone to fetch water also arrived. She grabbed the deceased and got me released from his clutches. The deceased then became unconscious. My mother then deputed me and my sister Rachna to Police Station Kotkhai for lodging report. We reached Kotkhai Police Station, around 10 or 11 and lodged the report. Our report had been entered in the Roznamcha and three police officials, one A.S.I., one Head Constable and one constable accompanied us to our house. Nobody met us on the way.” 27. In her cross examination she clarifies that she threw the stone at the deceased only when the accused entered the kitchen and that the deceased caught her from the plait of her hair. 28. We see no reason to disbelieve the testimony of this witness. More so, in the backdrop of the undisputed facts and circumstances as we have noticed herein earlier. Deceased had no reason to interfere with the private life of the accused and come to their house. Marriage stood dissolved much prior to the incident in question. Perhaps deceased wanted to prevent accused Sarojni Devi 16 from going to Shimla for getting herself medically examined, as finalisation of investigation pertaining to report (Ext. PG) lodged by her on 5.2.1999 would have resulted into breach of undertaking given by the deceased to this Court. According to the Doctor injuries could have been caused with any of the alleged weapons of offence. It is true that injuries on the body of the deceased appear to have been caused by sharp edged weapon but this