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2010 DIGILAW 618 (HP)

STATE OF H. P. v. RAJ KUMAR

2010-03-29

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Per Deepak Gupta, J.(Oral)-This appeal by the State is directed against the JUDGMENT dated 1.11.1993 of the learned Sessions Judge, Sirmaur District at Nahan, in Sessions trial No. 20-N/7 of 1993 whereby he acquitted the accused of having committed an offence punishable under Section 302 of the Indian Penal Code. 2. Accused Santosh Devi was married to deceased Maya Ram. Immediately after marriage Santosh Devi and Maya Ram lived in the house of the parents of Maya Ram in Nayee Basti, Veena Nagar of Yamuna Nagar. According to the prosecution, thereafter accused Santosh Devi insisted that she wanted to live in a separate house. Then her husband hired residential accommodation in a building owned by co-accused Raj Kumar. The case of the prosecution further is that Raj Kumar and Santosh Devi developed illicit relations which were not liked by Maya Ram. He, therefore, wanted to shift his residence but Santosh Devi insisted that she would continue to live there. In fact, it is alleged that she told Maya Ram that accused Raj Kumar had promised to give her 50 square yards of land on which they could built their own house but Maya Ram did not accept this proposition and stated that he would not accept anything from Raj Kumar. Thereafter, Santosh Devi turned defiant and proclaimed that she would rather live with Raj Kumar then with Maya Ram. 3. The prosecution case further is that three-four days after the Holi festival in the year 1993 the deceased and both the accused alongwith an infant child of the deceased left Yamunagar for some place in Himachal Pradesh on two bicycles. It is alleged that Santosh Devi rode the bicycle of Raj Kumar. Accused Raj Kumar and the deceased consumed some liquor at Bilaspur in Yamuna Nagar where they were seen by three persons, namely, Maya Ram s/o Phool Chand, Devi Chand and Diya Ram. Devi Chand is the maternal uncle of the deceased and Diya Ram is the uncle (Mausa) of the deceased. On 12.3.1993 a dead body of a male person was spotted in a forest near village Haripur Khol within the jurisdiction of Police Station Paonta Sahib. Smt. Balbir, sister of the deceased was married in this village. All the residents of village Haripur Khol including Balbir went to the forest but the dead body could not be identified since it was swollen. Smt. Balbir, sister of the deceased was married in this village. All the residents of village Haripur Khol including Balbir went to the forest but the dead body could not be identified since it was swollen. The matter was then reported to the police and inquest was got conducted and photographs of the dead body was taken. A bicycle of Atlas make was also found near the dead body and a piece of cloth was recovered from the place. It appeared that the deceased had been strangled to death with a pink coloured Dupatta. Post mortem of the body was done and opinion of the doctor was that the deceased had been strangulated with the Dupatta. 4. According to the prosecution, on 22.3.1993 the mother of the deceased was standing near the Police Station Paonta Sahib. The police official inquired why she had come and she disclosed that her son was missing. She was shown the photographs of the dead body recovered by the police and from the photographs she identified the dead body to be of her son. She also indicated that she suspected her daughter-in-law Santosh Devi’s involvement in the crime. Thereafter, a case was registered and investigation was done. The learned trial Court after trial has acquitted the accused. Hence, the present appeal. 5. There is no eye-witness to the alleged incident and the case of the prosecution is based on circumstantial evidence and the following four circumstances are mainly relied upon by the prosecution:- (i) The two accused were having illicit relations and the deceased was in the know of this fact. (ii) The ligature of Dupatta, which was found around the neck of the deceased formed part of the wedding dress of accused Santosh Devi. (iii) A piece of cloth appearing to be of a lady’s shirt was found on the spot, which indicated that some lady was also involved in the commission of the crime. (iv) The two accused and the deceased had been seen together at Bilaspur while on their way towards Himachal Pradesh, 3-4 days after the Holi festival by Maya Ram son of Phool Chand, Devi Chand son of Sawan Ram and one Diya Ram. 6. The first circumstance relied upon by the prosecution is that the deceased had developed illicit relations. (iv) The two accused and the deceased had been seen together at Bilaspur while on their way towards Himachal Pradesh, 3-4 days after the Holi festival by Maya Ram son of Phool Chand, Devi Chand son of Sawan Ram and one Diya Ram. 6. The first circumstance relied upon by the prosecution is that the deceased had developed illicit relations. Other than the bald statement of PW-3 Kamla Devi, mother of the deceased Maya Ram, there is no other evidence to support this allegation. Her version is that immediately after the marriage of the deceased with accused Santosh many persons of ill-repute started visiting the house of the deceased and the accused. This witness was confronted with her statement recorded under Section 161 Cr.P.C. (Ext.DA) in which she had not stated that her son had told her that the accused Raj Kumar had told his wife accused Santosh Devi that he would give her a plot of 50 sq. meters of land or that Santosh Devi had proclaimed that she would start living with accused Raju as his wife. The bald testimony of the mother cannot be believed without there being any other cogent proof of the two accused having illicit relations. 7. The statement of the mother cannot also be believed in view of the prosecution case itself that the deceased alongwith both the accused were going on bicycles to Himachal Pradesh. If the deceased had knowledge that his wife and co-accused Raj Kumar had developed illicit relations then he would not have gone with them. This is not a normal human conduct. No husband would go on joy trip or on a vacation with his wife and her paramour. 8. Coming to the second circumstance, again the evidence connecting the piece of Dupatta with the accused Santosh is only that of the mother Kamla Devi. She has identified the Dupatta as forming part of the wedding dress of accused Santosh Kumari. However, this fact she stated for the first time in Court. According to her, she could identify the Dupatta because she had herself stitched on the golden lace (Gota) on the edges of the Dupatta. Admittedly, the marriage of the accused Santosh Devi had taken place more than six years back. It would be very difficult to identify such a Dupatta after six years. According to her, she could identify the Dupatta because she had herself stitched on the golden lace (Gota) on the edges of the Dupatta. Admittedly, the marriage of the accused Santosh Devi had taken place more than six years back. It would be very difficult to identify such a Dupatta after six years. Further, the learned trial Court had noticed that the stitching whereby the Gota was stitched on to the Dupatta appeared to be recent and the Dupatta appeared to be new and did not appear to be a used one. In fact on going through the statement of the mother we find that she had stated that she had stitched on the Gota with her own hand whereas it was observed by the learned trial Court that the Gota had been actually tacked to the Dupatta with a sewing machine. Therefore, the second circumstance is also not proved by the prosecution. 9. As far as the third circumstance is concerned, there is no evidence whatsoever to show that the piece of cloth found on the spot had been torn from any suit belonging to the accused Santosh. The police failed to recover any shirt of the accused Santosh from which this piece of cloth might appear to have been separated. Therefore, this circumstance was also not proved. 10. The fourth circumstance is that both the accused were last seen with deceased Maya Ram near village Bilaspur. Maya Ram S/o Phool Chand was examined as PW-4. His statement does not help the prosecution case. According to him, he had seen the deceased alone while the deceased was proceeding towards Himachal Pradesh on a bicycle. PW-7 Devi Chand is the real maternal uncle of the deceased. According to him he saw the two accused and the deceased at the old bus-stand, Bilaspur. However, his statement was disbelieved by the learned trial Court on the ground that according to this witness deceased Maya Ram and accused Raj Kumar both consumed liquor at the round about of bus-stand Bilaspur in the open. In the day time, it is not expected that any body would sit on the main road and consume liquor in an open place. In the day time, it is not expected that any body would sit on the main road and consume liquor in an open place. The statement of this witness has also been discarded because he disclosed this fact to the police after more than two months after his sister Kamla Devi, mother of the deceased, had come to know about the murder. Kamla Devi must have confided to her brother that she had identified the dead body of her son through the photographs at Paonta Sahib Police Station. The I.O, PW-12 ASI Deep Ram stated that PW-3 had given the names and particulars of the persons who had seen the deceased at Bilaspur. According to him, he kept on searching for these persons and it was only later he came to know that the Bilaspur being referred to was in Haryana and not the Bilaspur in Himachal Pradesh. This is not expected of a police official that too who is posted at Paonta Sahib which borders the area of Haryana. Further more, according to PW-3 Kamla Devi, she herself took the witnesses Devi Chand, Maya Ram and Ram Diya to the police post where the police recorded their statements. If she could do this after two months why could this not have been done earlier? Even assuming that the police officials were under misapprehension about the Bilaspur being referred to by Kamla Devi why was no attempt made to contact her again to find out the true whereabouts. The learned trial Court was, therefore, totally justified in not relying upon this evidence. 11. Another ground which has been relied upon by the learned trial Court for acquitting the accused is that the prosecution has failed to prove that the dead body was that of deceased Maya Ram. According to the prosecution PW-3 Kamla Devi was found near police station Paonta Sahib and the police inquired what she was doing there. PW-3 stated that she never visited the police station at Paonta Sahib. According to her she only visited the police post at Majra. Further PW-3 stated that she identified the dead body of her son at Police Post Majra whereas according to Investigating Officer Deep Lal she was never shown the body of her son and was shown only the photographs of the dead body at Police Station Paonta Sahib. According to her she only visited the police post at Majra. Further PW-3 stated that she identified the dead body of her son at Police Post Majra whereas according to Investigating Officer Deep Lal she was never shown the body of her son and was shown only the photographs of the dead body at Police Station Paonta Sahib. Kamla Devi was never shown the body but only the photographs. Both PW-3 and PW-2 have stated that when the body was just recovered near the forest of Haripur, Balbir sister of the deceased had seen the dead body but could not identify the same. If the sister could not identify the dead body on actually seeing it how could the mother identify the same on seeing the photographs. Thus the prosecution has failed to prove that the dead body was of Maya Ram. 12. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are discharged.