IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.669 of 1996 Decided on: 4th May, 2010 State of H.P …..Appellant. VERSUS Inder Singh & ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr.Vinay Thakur, Advocates. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 11.6.1996 delivered by the Learned Additional Sessions Judge, Shimla in Sessions Trial No.56- S/7 of 1993 whereby he acquitted the accused of having committed offences punishable under Section 302 read with Section 34 of the Indian Penal Code. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The prosecution case, in brief, is that Geeta Ram (deceased) son of Fina Dass was working as muleteer with one Gopal Singh in village Batwari, Tehsil Rohru, District Shimla. He had hired accommodation from Kewal Ram, accused No.2 and was residing in his house. According to the prosecution, Geeta Ram who was 22 years of age had developed a liking for Kewal Ram’s daughter (name of the girl withheld to protect her reputation). This fact was not liked by Kewal Ram since Geeta Ram was a Harijan and Kewal Ram belongs to a higher caste. According to the prosecution, for this reason, Kewal Ram alongwith the other accused persons who are his relatives conspired to eliminate Geeta Ram. On 21.9.1991, Kewal Ram organized a feast at his house. In this feast, liquor was served in abundance to the guests. Geeta Ram was also served liquor. After the other guests left the house of Kewal Ram, the four accused throttled Geeta Ram to death. Thereafter, to deflect the inquiry from themselves, they hung the dead body of Geeta Ram from the neck near the fodder godown of his employer Gopal Singh. 3. The dead body of Geeta Ram was discovered by the villagers next morning on 22.9.1991. Fina Dass, …3… father of the deceased (PW/1) was immediately informed about the death of his son. He rushed to village Batwari. The police was also informed about the incident. However, no FIR was lodged till 28.9.1991, when the statement of Fina Dass (Ext.PA) was recorded under Section 154, Cr.PC on 28.9.1991. Then, on the basis of this statement, FIR No.219/91 dated 28.9.1991 was recorded under Section 302 IPC by the SHO, Police Station, Rohru. The dead body of Geeta Ram was sent for post mortem examination on 22.9.1991. The post mortem was conducted by PW/6 Dr.Ravinder Mokta on 28.9.1991 itself who found that the death was caused by fracture of thyroid bone with asphyxia and according to his provisional opinion, the deceased was throttled to death and was subsequently hanged. He reserved his final opinion till the receipt of the cheminal examination report. The report Ext.PB did not disclose the presence of poison in the viscera though alcohol was detected in the stomach and kidney of the deceased. The doctor, therefore, confirmed his final opinion and again opined that the person was throttled to death, i.e., murder and was subsequently hanged. …4… 4. After the registration of the case, investigation was conducted and a report under Section 173, Cr.PC was filed with the concerned Magistrate. Since the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court. The accused were charged with having committed the offences detailed here-in-above. They pleaded not guilty to the charges levelled against them and claimed trial. Thereafter, the prosecution examined 12 witnesses during trial. After trial, the accused were acquitted. Hence the present appeal by the State. 5. At the outset, we may mention that both the police and the public prosecutor have acted in a highly negligent manner while dealing with the case. As pointed out above, the matter was reported to the police on 22.9.1991 that a dead body had been found. The police at that stage did not know whether it was a case of suicide or of murder. S.I Chandan Singh, the Investigating Officer conducted the inquest of the dead body vide PW10/B and the dead body was sent for post mortem examination alongwith memo Ext.PW10/A. At that stage, the Investigating Officer suspected it to be a …5… case of suicide. However, once the post mortem report Ext.PC was given by the doctor, PW/6 on the same date itself, it clearly disclosed that the deceased had been throttled to death and then the body had been hung. This left no manner of doubt that the deceased had been murdered. The FIR should have been lodged at this stage at least. Why did the police wait till 28th September, 1991 to record the FIR? We are prima facie of the view that this shows gross negligence on the part of the police officials investigating the case and we feel that further action in the matter is required. 6. Coming to the facts of the case. We find that in Ext.PA, Fina Dass, father of the deceased had not expressed his suspicion on any of the accused persons. He had suspected the involvement of some other persons. These persons were apparently arrested but the police could not gather any material against them. Even in his testimony in Court, Fina Dass clearly stated that when he lodged the compliant, Ext.PA, he did not entertain any suspicion about the role of the accused. 7. As set out above, the entire prosecution version was based on two circumstances; (i) the deceased had developed illicit relations with the …6… daughter of Kewal Ram; (ii) that the deceased was last seen in the company of all the accused on the night of 21.9.1991 and next morning on 22.9.1991, his dead body was found. 8. PW/2 Gopi Ram was one of the witnesses ,who according to the prosecution, was to testify in support of both these allegations. However, Gopi Ram when he appeared in the witness box stated that he did not take notice anybody taking liquor. According to him, he had gone to Rohru. He never saw Geeta Ram at the premises of Gopal Singh, Patwari. 9. According to PW/11, Dy.S.P, Santokh Singh, he had recorded the statements of Sonam, Gopi etc. under Section 161, Cr.P.C. We have seen the challan file as well as the police record and such statement is on record. Shockingly, the learned public prosecutor did not even deem it proper to get this witness declared hostile. He did attempt to cross-examine this witness, meaning thereby that the statement of this witness made in favour of the accused was accepted by the prosecution without a murmur of protest. 10. PW/3 did not support the prosecution version at all and turned hostile. He was declared hostile and …7… was cross examined. In cross examination, he stated that Geeta Ram used to address Kewal Ram’s daughter as his god sister. He denied the suggestion put to him by the prosecution that the people suspected illicit relationship between Geeta Ram and the daughter of Kewal Ram. He also stated that he never saw the accused persons and deceased Geeta Ram taking liquor together. Similarly, PW/4 and PW/5 also turned hostile. They were cross examined by the public prosecutor but to no avail. 11. PW/6 Dr.Ravinder Mokta clearly stated that in his opinion, the death was caused by fracture of thyroid bone with asphyxia. According to him, the person was throttled to death and was subsequently hanged. 12. On the basis of this evidence, there can be no quarrel with the decision of the learned Trial Court that the accused has to be acquitted. There is no evidence on record against the accused. We, therefore, have no option but to acquit the accused. 13. Before parting with this case, we are constrained to observe that we are prima facie of the opinion that Sh.R.L.Thakur, learned public prosecutor prosecuting the case on behalf of the State did not perform his duties as expected from an officer of the rank …8… of public prosecutor. As already pointed out above, he did not even care to get PW/2 declared hostile. He did not even ask him a single question in cross examination. The apathy of the public prosecutor to this serious crime is even more evident from the fact that when he examined PW/8 Inspector Sh.Rikpa Giachho who stated that on 9.4.1993 and 4.6.1993 he recorded the statements of daughter of Kewal Ram and Shakuntla Devi. the learned public prosecutor did not make any attempt to have these statements exhibited in the Court. As pointed out above, PW/2 was not declared hostile. PW/3 to PW/5 were declared hostile and were cross examined. During their cross examination by the learned public prosecutor, he did not even confront them with the statements made by these witnesses under Section 161, Cr.PC though they firmed part of the challan file as well as the police record. PW/11 Dy.S.P.Santokh Singh stated that he had recorded the statements of these witnesses. Even during his examination, the statements of these witnesses were not got exhibited. 14. We are prima facie of the view that the learned public prosecutor miserably failed to perform the duties which were expected from him. Before taking a …9… final view of the matter, we are of the considered view that we should hear the learned public prosecutor. Therefore, though the appeal is being dismissed, we would like to hear the learned public prosecutor as to the manner in which he conducted this case before we pass any adverse remarks or direct other action against him. 15. We, therefore, direct the Registry of this Court to issue notice to Sh.Ram Lal Thakur, presently posted as Joint Director, Prosecution to show cause why we should not pass adverse remarks against him and recommend appropriate departmental action against him. A copy of this judgment shall be sent to him alongwith this notice. The notice be made returnable for 2nd June, 2010. The Registry is directed to ensure that the said notice is sent to Sh.R.L.Thkaur within four days from today. Sh.R.L.Thakur shall positively file his reply on or before the next date failing which it shall be presumed that he does not want to file any reply. 16. We further direct that the Principal Secretary (Home) to the Government of Himachal Pradesh to enquire into the matter as to why the FIR was not registered on 22.9.1991 itself and why the same was delayed till 28.9.1991. In case the erring official is still in …10… service, the Principal Secretary (Home) shall ensure that the disciplinary action is initiated against the said official and the proceedings are completed within three months from the date of the communication of this order. The Registrar General is directed to communicate this order to the Pirincipal Secretary (Home) within one week from today. 17. In view of the above discussion, we dismiss the appeal with the aforesaid observations. Bail bonds, if any furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 4th May, 2010 (Rajiv Sharma) (m) Judge