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Himachal Pradesh High Court · body

2014 DIGILAW 1729 (HP)

Bhim Singh v. State of H. P.

2014-11-24

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 7.10.2010, rendered by the learned Addl. Sessions Judge, Mandi, Camp at Karsog, in Sessions Trial No. 4 of 2009, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 302 & 309 IPC. He was sentenced to undergo imprisonment for life (rigorous) and to pay a fine in the sum of Rs. 5,000/- for the commission of offence under Section 302 IPC and in default of payment of fine, he was ordered to suffer simple imprisonment for six months. He was also sentenced to undergo simple imprisonment for one year for the commission of offence under Section 309 IPC. 2. The case of the prosecution, in a nut shell, is that the complainant Banti Devi is resident of village Khumaro. Accused is her son. About 9 years back, accused married Kaushalya Devi without the consent of his parents. Accused has two daughters and one son. Elder daughter Neha (deceased) was seven or eight years old. She was studying in the second class. About three months prior to the incident accused had beaten his wife and children. His wife Kaushalya Devi went to her parental house alongwith the younger daughter. Accused used to administer beatings to his wife and children. 3. On 20.6.2009, Neha alongwith her brother Dinesh came to the house of Smt. Banti Devi during evening time. The accused was living separately from his parents. Neha and Dinesh took meals and slept in the room of the complainant. Accused was working as labourer. During night at about 2:30 AM, accused knocked at the door of the house of the complainant and pushed the door to open it. The complainant was sitting inside her room as she was not able to sleep due to toothache. The light of the room was on. The accused asked her about his children. She and her husband told him that both Neha and Dinesh were sleeping. She also asked accused to go to kitchen in order to take dinner. Neha and Dinesh were sleeping in the room of the complainant alongwith Kala (daughter of the complainant). The accused dragged Neha from her hairs and started beating her. Neha cried and the complainant tried to save Neha. Accused gave kick blows on the shoulder of the complainant. Accused also slapped her. Neha and Dinesh were sleeping in the room of the complainant alongwith Kala (daughter of the complainant). The accused dragged Neha from her hairs and started beating her. Neha cried and the complainant tried to save Neha. Accused gave kick blows on the shoulder of the complainant. Accused also slapped her. The accused threatened to kill them. She alongwith her husband, Neha and Kala started raising alarm but nobody came on the spot. Accused continued beating Neha. He threatened that in case somebody would come forward to save Neha, he would kill them and resultantly, all of them were frightened. The accused removed Phati (wooden piece) from the table and started beating Neha mercilessly. Phati was also having a nail. Neha sustained injuries on her forehead, arms, legs back and stomach. She started bleeding profusely. The complainant alongwith Kushal Chand and Bindu went to the house of Yuv Raj, Vice President of the Panchayat. When they were returning back to her house, she heard explosion at electricity transformer. When they reached near the transformer, accused was lying on the spot and his clothes and stomach was burnt. She was told by her family members that accused went towards transformer when Neha fell unconscious. When complainant alongwith other persons reached at her house, she found that Neha was demanding water. She was also vomiting. She was brought to Civil Hospital Karsog. She died there at 6:30 AM. Neha died due to beatings administered by accused with the aid of hands and Phati. 4. On 21.6.2009, a telephonic message was received from Civil Hospital, Karsog at PS Karsog that one girl admitted in the hospital has died having sustained injuries. This information was recorded in the rojnamcha. SI Vijay Sen directed HC Tek Chand to go to hospital. At about 8:00 AM, HC Tek Chand informed SI Vijay Sen on telephone that the girl had died. S.I. Vijay Sen went to hospital and statement of complainant Banti Devi was recorded under Section 154 Cr.P.C by SI Vijay Sen. FIR was registered at PS Karsog. MLC certificate of Neha was obtained. Her post mortem report was also received. The inquest report was prepared. Viscera of the deceased was handed over to the police by the MO Civil Hospital, Karsog for the purpose of examination. The accused was also medically examined. The blood stained Kurta and Paijama were also taken into possession. MLC certificate of Neha was obtained. Her post mortem report was also received. The inquest report was prepared. Viscera of the deceased was handed over to the police by the MO Civil Hospital, Karsog for the purpose of examination. The accused was also medically examined. The blood stained Kurta and Paijama were also taken into possession. The blood stained pieces of plastic mattress, burnt inner and shirt of the accused were also taken into possession by SI Vijay Sen. The pieces of Phati and one stick were also taken into possession. The table was also taken into possession by the police. Reports were received from FSL, Junga. The investigation was completed and thereafter challan was put up after completing all the codal formalities. 5. The prosecution has examined as many as 22 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. He has denied the case of the prosecution. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 6. Mr. Adarsh Sharma, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Mandi, Camp at Karsog, dated 7.10.2010. 7. We have heard learned counsel for the parties and gone through the records of the case carefully. 8. PW-1 Banti Devi is the mother of the accused. According to her, the marriage between accused and Kaushalya Devi was solemnized about 12 years back. He married Kaushalya Devi without their consent. Three children were born out of this wedlock. The name of the eldest daughter was Neha. She was seven years old at the time of her death. She was studying in 2nd class at that time. About one year back, quarrel took place between Kaushalya and the accused. Both of them had consumed liquor. Accused and Kaushalya were living in separate houses. She was living in separate house. The distance between their house was about 200 ft. Kaushalya had left the house and went to the house of her parents. Neha and Dinesh remained in the house of the accused. Accused used to administer beatings to his children under the influence of liquor. On 20.6.2009, Neha and Dinesh came to her house. She was living in separate house. The distance between their house was about 200 ft. Kaushalya had left the house and went to the house of her parents. Neha and Dinesh remained in the house of the accused. Accused used to administer beatings to his children under the influence of liquor. On 20.6.2009, Neha and Dinesh came to her house. The accused was working as labourer under NREGA scheme. When Neha and Dinesh came to her house, they did not take meals. Both of them slept with her at night. Her husband slept in the separate room. She was having toothache on that day. At about 1:30 AM, accused Bhim Singh came to her house. He was under the influence of liquor. He asked her about his family. Her husband woke up and told the accused that his children were sleeping. At that time, she was sitting on the cot. The light was on. She was not able to sleep during night due to toothache. Her husband told accused that he should go to kitchen if he want to take food. The accused did not take meals. The accused asked the children to leave her house. Her husband also asked the accused to leave the house if he did not want to take meals. The accused stated that he would take the children to his house. She caught Neha. She told accused that she would not permit Neha to be taken out of her house during night. The accused pushed her. She raised alarm. Her husband Amar Singh came to the room. The accused had also pushed her husband. She asked children to raise alarm. Neha and Dinesh started raising cries. Accused threatened to kill her. There was wooden table inside the room. Accused removed one Phati from the table. He hit on her leg with that Phati. She left the room in order to save herself. She went to the house of Prem Lata, Panch in the Village. Accused did not beat Neha in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. She denied the suggestion that the accused had inflicted injuries on the person of Neha with the aid of Phati having been removed by him from the wooden table. She admitted that there was iron nail in the Phati. Accused did not beat Neha in her presence. She was declared hostile and cross-examined by the learned Public Prosecutor. She denied the suggestion that the accused had inflicted injuries on the person of Neha with the aid of Phati having been removed by him from the wooden table. She admitted that there was iron nail in the Phati. She denied that Neha was bleeding from her head, forehead, arms, legs, back and stomach. She denied that accused continued administering beatings to Neha despite the fact that she was bleeding profusely. She admitted that she went to the house of Up-Pradhan Yuv Raj alongwith Kushal and Bindu. She had gone to the house of Yuv Raj to bring him to the spot. She admitted that when she was returning back to her house alongwith Yuvraj, Kushal and Bindu they heard explosion of electricity transformer. She admitted that due to explosion, supply of electricity to the village was disrupted. She admitted that accused was lying near the transformer. She did not remember that her family member had told her that when Neha became unconscious, accused had fled from the room. She admitted that Neha was also vomiting at that time. She admitted that Neha was brought to Civil Hospital, Karsog. She admitted that Neha had died at about 6:30 AM in the hospital. She also denied that Neha died due to administering of severe beatings by accused with Phati. The police visited the spot. The police photographed the spot. The police took into possession blood stained Kurta and Pajama of her husband Amar Singh and burnt shirt and inner of accused and pieces of plastic mattresses stained with blood vide memo Ext. PA. The police also took into possession eight wooden pieces of =kial' and one stick of =fagra' (firewood tree) stained with blood, vide memo Ext. PB. Wooden table was also taken into possession. The shirt is Ext. P-2 and Pajama is Ext. P-3. The burnt shirt is Ext. P-5 and burnt inner is Ext. P-6. The wooden pieces were Ext. P-10 and stick Ext. P-11. The chappal was Ext. P-13. The wooden table was also produced in the Court vide Ext.P-14. According to her, portion A to A of her statement mark A recorded under Section 154 Cr.P.C. was not correct. P-3. The burnt shirt is Ext. P-5 and burnt inner is Ext. P-6. The wooden pieces were Ext. P-10 and stick Ext. P-11. The chappal was Ext. P-13. The wooden table was also produced in the Court vide Ext.P-14. According to her, portion A to A of her statement mark A recorded under Section 154 Cr.P.C. was not correct. She was confronted with portion A to A of her statement mark A recorded under Section 154 Cr.P.C., she has deposed that this statement was not given by her to the police. Portion B to B of her statement mark A recorded under Section 154 Cr.P.C. was not correct. She was confronted with portion B to B of her statement mark A recorded under Section 154 Cr.P.C., she has deposed that this statement was not given by her to the police. Portion C to C of her statement mark A recorded under Section 154 Cr.P.C. was not correct. She was confronted with portion C to C of her statement mark A recorded under Section 154 Cr.P.C., she has deposed that this statement was not given by her to the police. Portion D to D of her statement mark A recorded under Section 154 Cr.P.C. was not correct. She was confronted with portion D to D of her statement mark A recorded under Section 154 Cr.P.C., she has deposed that this statement was not given by her to the police. She denied the suggestion that during night accused had dragged Neha from hair and started administering beatings to her without any cause. Portion E to E of her statement mark A recorded under Section 154 Cr.P.C. was not correct. She was confronted with portion E to E of her statement mark A recorded under Section 154 Cr.P.C., she stated that this statement was not given by her to the police. She denied the suggestion that when accused realized that death of Neha was inevitable due to the beatings given by him, he attempted to commit suicide by touching live wires of electricity transformer. She denied the suggestion that Neha had died due to administering of beatings with the aid of Phati by the accused. In her cross-examination, she admitted that the accused had demanded share in the property from his father. On the date of occurrence, accused had demanded his share in the property from his father. She denied the suggestion that Neha had died due to administering of beatings with the aid of Phati by the accused. In her cross-examination, she admitted that the accused had demanded share in the property from his father. On the date of occurrence, accused had demanded his share in the property from his father. Hot words were exchanged between her, accused and her husband. Thereafter, she went to the house of Up-Pradhan of the Panchayat to bring him on the spot. She also admitted that Kala and Bir Chand had also accompanied her to the house of Up-Pradhan of Panchayat. There was retaining wall of 20 ft. height in the compound of her house. She also admitted that there were stones and bushes near the retaining wall. She also admitted that Neha had also run from the house after them when they had gone to the house of Up-Pradhan. She also admitted that accused used to look after his wife and children properly. She also admitted that they were locked in litigation with Kushal Chand, Duni Chand and Bindu. She did not call Kushal Chand, Duni Chand and Bindu to her house at the time of occurrence. She admitted the suggestion that accused has been falsely implicated in the case by Kushal Chand, Duni Chand and Bindu in connivance with the police. 9. PW-2 Amar Singh is the father of the accused. According to him, Neha and Dinesh came to their house. Both of them slept on the date of occurrence. He slept in the separate room. Gulabo Devi and Bir Chand were also present in his house on that day. At about 1:30 AM (night), accused came to his house under the influence of liquor. He asked him about the whereabouts of his children. He told him that his daughter and son were sleeping in separate room with Banti. He told accused that he should not take children to his house during night. Accused picked up a quarrel with him. His wife Banti came out of her room when accused quarreled with him. Accused pushed Banti Devi and he went inside the room and again stated that she fled from the spot. The accused again started picking up quarrel with him. He pushed him and fled away from the spot. Accused did not administer beatings to Neha in his presence. His wife Banti came out of her room when accused quarreled with him. Accused pushed Banti Devi and he went inside the room and again stated that she fled from the spot. The accused again started picking up quarrel with him. He pushed him and fled away from the spot. Accused did not administer beatings to Neha in his presence. He was also declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that about three months prior to this incident, accused gave beatings to his wife and children and resultantly Kaushalya went to her parental house alongwith the youngest daughter. He denied the suggestion that about 6-7 days back prior to this incident, accused Bhim Singh had beaten his daughter Neha and that she has bleeding from nose and mouth. Kushal Chand was his nephew. He denied the suggestion that Neha had taken shelter in the house of Kushal Chand. He admitted that Neha was brought to his house by Kushal Chand and Prem Lata. He denied the suggestion that during night at about 2 or 2:30 AM, accused dragged Neha from the hair and brought her to his room. He also denied that accused was beating Neha and in the meantime, his wife Banti Devi also came inside the room. He also denied the suggestion that Banti Devi tried to save Neha from accused in his room but she was pushed by the accused. He also denied the suggestion that accused had threatened to kill them. He denied the suggestion that accused removed Phati from wooden table lying in the room. He denied the suggestion that accused gave beatings to Neha with the aid of Phati. He admitted that nobody came to his house when they had raised alarm. He denied the suggestion that Neha was bleeding from her head, forehead, arms, legs and back. He denied the suggestion that Neha was beaten mercilessly by the accused. He denied the suggestion that Phati was broken into pieces as a result of infliction of injuries on the person of Neha by the accused. He also denied the suggestion that Neha was also beaten by the accused with the aid of stick of Fagra. He denied the suggestion that they told Prem Lata that accused had killed Neha. He also denied the suggestion that Neha was unconscious when they went to the house of Prem Lata, Panch. He also denied the suggestion that Neha was also beaten by the accused with the aid of stick of Fagra. He denied the suggestion that they told Prem Lata that accused had killed Neha. He also denied the suggestion that Neha was unconscious when they went to the house of Prem Lata, Panch. He also denied the suggestion that Prem lala told Kushal Chand that Neha had been killed by accused and as such he should visit his house. He admitted that when they reached in their house, the accused was sitting on the bench lying in the house. He admitted that there was explosion at electricity transformer and supply of electricity was disrupted. He admitted that the accused was found lying burnt near the aforesaid transformer. He denied the suggestion that blood stained kurta and pajama was handed over to the police by him. He denied the suggestion that kurta and pajama were worn by him on the date of incident. He admitted that kurta and pajama Ext. P-2 and P-3 had been handed over to the police by him vide memo Ext. PA. The burnt shirt and inner of the accused were handed over to the police by him vide memo Ext. PA. He was not aware that blood stained pieces of plastic mattresses were taken into possession by the police. He admitted that memo Ext. PA was also signed by witnesses Prem Lata and Lata Kumari. He denied the suggestion that Neha had died on account of the beatings administered by the accused with the aid of Phati, kick and fist blows. He denied the suggestion that when accused realized that Neha might have died due to beatings administered by him to her, he made an attempt to commit suicide by touching live wire of electricity transformer. Portion A to A of his statement Mark C recorded under Section 161 Cr.P.C. was not correct. He was confronted with portion A to A of his statement Mark C under Section 161 Cr.P.C. He stated that he has not given this statement to the police. Portion B to B of his statement Mark C recorded under Section 161 Cr.P.C. was not correct. He was confronted with portion B to B of his statement Mark C under Section 161 Cr.P.C.. He stated that he has not given this statement to the police. Portion B to B of his statement Mark C recorded under Section 161 Cr.P.C. was not correct. He was confronted with portion B to B of his statement Mark C under Section 161 Cr.P.C.. He stated that he has not given this statement to the police. Similarly, he denied portion C to C, D to D, E to E, F to F and G to G of his statement recorded under Section 161 Cr.P.C. According to him, he never made these statements to the police. In his cross-examination by the learned defence counsel, he admitted that the accused has demanded his share in the property. The accused has demanded his share at the night of this incident. He alongwith his wife and second son Bir Chand went to the house of Prem Lata, Panch to bring her to their house to settle the dispute. He admitted that Neha had also run after them when they left the house in order to go to the house of Panch Prem Lata. He admitted that Neha had fallen from the compound of the house on the bushes beneath the retaining wall. He also admitted that Neha had sustained injuries on her body due to this fall. He did not know that accused had lifted Neha from the bushes and brought her to the house. He admitted that he had inimical relations with Kushal Chand, Duni Chand and Bindu. Neither Kushal Chand nor Duni Chand or Bindu had come to his house on the night of occurrence. He admitted that the accused was implicated falsely in the case at the instance of Kushal Chand, Duni Chand and Bindu. He also admitted that Kashalya, Neha, Dinesh and Nikata were looked after by the accused properly. 10. PW-3 Prem Lata, deposed that she was present in her house on 20.6.2009. During night, at about 2 or 2:30 AM, Banti, Amar Singh, Bir Chand and Kala came to her house. They disclosed her that Neha had been beaten mercilessly by accused and as such she should visit their house. She went to the house of Kushal Chand alongwith these persons. She took Kushal Chand with her and thereafter, they went to the house of Banti Devi. Accused was sitting on wooden bench. Neha was also lying on the bench. Neha was bleeding. She asked accused as to what had happened to Neha. She went to the house of Kushal Chand alongwith these persons. She took Kushal Chand with her and thereafter, they went to the house of Banti Devi. Accused was sitting on wooden bench. Neha was also lying on the bench. Neha was bleeding. She asked accused as to what had happened to Neha. The accused stated that ?Aaj mene ise dil se mara hai?. Thereafter, Banti, Amar Singh, Kushal Chand and Duni Chand went to the house of Yuv Raj, Up Pradhan in order to call him to the spot. She remained inside the house alongwith Bir Chand. Accused came out of the room and sat in the corner of old house of Amar Singh. She asked Bir Chand as to where Bhim Singh had gone. In the meantime, explosion took place at electrical transformer and supply of electricity was disrupted. Accused fell on the ground near transformer. Up Pradhan Yuv Raj, Banti, Amar Singh and Kushal Chand also reached near the transformer when this explosion took place. The accused was brought to the house. The shirt of the accused was burnt. Accused and Neha were immediately brought to the Civil Hospital, Karsog. Kushal Chand had disclosed to her that about 6-7 days prior to this incident, Neha had been beaten mercilessly by the accused and that she took shelter in his house. Kushal Chand had also visited her house and told her that Neha had taken shelter in his house because she was scared of her father. She had visited the house of Kushal Chand and found Neha sitting in the room of lower storey of the house. At that time, she had found that Neha was bleeding from her nose and her mouth was swollen. Banti had also disclosed to her that accused had beaten Neha with the aid of Phati removed from wooden table and stick of Fagra. The police visited the spot. Banti Devi handed over to the police eight pieces of =kial' wood and one stick of Fagra in her presence and these articles were sealed in parcel. Memo Ext. PB was prepared in this connection by the police. Blood stained kurta and pajama were also handed over to the police. Blood stained pieces of plastic mattresses were also handed over to the police by Amar Singh and Banti Devi. Wooden table was also handed over to the police. Memo Ext. PB was prepared in this connection by the police. Blood stained kurta and pajama were also handed over to the police. Blood stained pieces of plastic mattresses were also handed over to the police by Amar Singh and Banti Devi. Wooden table was also handed over to the police. In her cross-examination, she admitted that the accused has constructed his own house. She has not disclosed to the police that Neha has urinated in her Salwaar. She had also not disclosed to the police during the course of recording her statement that accused had dragged Neha inside the room and made her to lie on the cot. She has not disclosed to the police during the course of recording of her statement that accused had disclosed to her that ?Aaj mene ise dil se mara hai?. She admitted that the accused has never administered beatings to his wife and children in her presence. 11. PW-4 Kaushalya Devi, is the mother of the deceased. According to her, Neha was eldest child. The accused used to administer beatings to her and her children under the influence of liquor. She used to leave the house in order to take shelter in the house of villagers to save herself from the accused. She also lodged report with the police regarding cruelty meted out to her by the accused. On 21.6.2009, she received a telephonic message that her daughter Neha had been killed by her husband and that she should immediately come to the Civil Hospital, Karsog. From Police Station, Karsog, she went to Civil Hospital Karsog. She admitted in her cross-examination that the accused has demanded his share from his father. Fight has taken place on 20.6.2009 regarding the disputed property. 12. PW-5 Baldev deposed that he received a telephonic message from Haru Ram about the disruption of supply of electricity in Village Pacthi. He went to check electricity transformer. He found one pair of chappal lying near the transformer. He also found that the fuse of the transformer was not in working order. He informed Assistant Engineer and Junior Engineer about the disruption of supply of electricity. He also informed them that some person had touched live wires of transformer. Sh. R.K.Sharma, Junior Engineer came to the spot and took the photographs of the spot. Thereafter, electricity supply was restored. He informed Assistant Engineer and Junior Engineer about the disruption of supply of electricity. He also informed them that some person had touched live wires of transformer. Sh. R.K.Sharma, Junior Engineer came to the spot and took the photographs of the spot. Thereafter, electricity supply was restored. Fuse of the transformer gets damaged in case somebody touches live wire of the transformer. In his cross-examination, he admitted that one cannot touch wires of transformer without the support of staircase. He also admitted that lightening can disrupt the supply of electricity. 13. PW-6 Kushal Chand deposed that the accused was married with Kaushalya about 6-7 years back. Neha came to his house. The mouth of Neha was swollen. He asked Neha as to what had happened. Neha told him that she was beaten by her father. He called Panch Prem Lata to his house. He told Prem Lata that Neha had been beaten by her father. He alongwith Prem Lata took Neha to the house of her grand father. They handed over Neha to her grand parents. On 29.6.2009, Amar Singh, Prem Lata and Banti Devi came in the compound of his house. They were also accompanied by Het Ram and Sushma. It was 2:30 AM at that time. All of them called him out from his house. He came out of his house. He asked all of them as to what had happened. Amar Singh and Banti told him that he should visit their house because Bhim Singh was administering beatings to his daughter Neha. Thereafter, he went to the house of Amar Singh alongwith Prem Lata, Duni Chand, Amar Singh, Banti, Het Ram and Sushma. When they reached the house of Amar Singh, it was found that Bhim Singh was sitting on the Bench and Neha was also lying on the Bench. Neha was unconscious. He asked Bhim Singh as to why he had beaten his daughter. Accused told him that ?Aaj mene ise dil se mara hai?. Neha demanded water. They had seen injuries on her body including bruises. They went to the house of Up Pradhan Yuv Raj. Up Pradhan was brought to the house of Amar Singh by them. When they were reaching near the house of Amar Singh, explosion took place at electricity transformer and supply of electricity was disrupted. Accused was lying near the transformer and his clothes were burnt. They went to the house of Up Pradhan Yuv Raj. Up Pradhan was brought to the house of Amar Singh by them. When they were reaching near the house of Amar Singh, explosion took place at electricity transformer and supply of electricity was disrupted. Accused was lying near the transformer and his clothes were burnt. They brought the accused to the house of Amar Singh. Thereafter, Neha and Bhim Singh were brought to Civil Hospital, Karsog. In his cross-examination, he deposed that when Neha came to his house, about 6-7 days prior to this incident her mouth was found swollen. He did not lodge any report with the police. He admitted categorically that he was not on visiting terms with Amar Singh. His statement was recorded by the police one day after this incident. He has disclosed to the police during the course of recording of his statement that he had asked accused as to why he had beaten Neha. (Confronted with his statement Mark D under Section 161 Cr.P.C. wherein it is not so recorded). He had not disclosed to the police during the course of recording of his statement that only Amar Singh, Banti, Bir Chand and Kala came to his house during night. Volunteered that he had disclosed to the police that apart from these persons, Het Ram, Sushma and Prem Lata had also come to his house. He has disclosed to the police during the course of recording of his statement that accused told him that ?Aaj mene ise dil se mara hai?. (Confronted with his statement Mark D under Section 161 Cr.P.C. wherein it is not so recorded). He disclosed to the police during the course of recording of his statement that Amar Singh told him that accused had beaten Neha with Phati and stick of Fagra. (Confronted with his statement Mark D under Section 161 Cr.P.C. wherein it is not so recorded). He has disclosed to the police during the course of recording of his statement that he has found Bhim Singh lying near transformer in burnt condition. (Confronted with his statement Mark D under Section 161 Cr.P.C. wherein it is not so recorded). He also admitted in crossexamination that Bindu and Duni Chand were his brothers. 14. PW-7 Yuv Raj, deposed that he was Up-Pradhan of Gram Panchayat Kalashan. (Confronted with his statement Mark D under Section 161 Cr.P.C. wherein it is not so recorded). He also admitted in crossexamination that Bindu and Duni Chand were his brothers. 14. PW-7 Yuv Raj, deposed that he was Up-Pradhan of Gram Panchayat Kalashan. On 20.6.2009, at about 3:15 AM Banti Devi, Amar Singh, Kushal Chand and Duni Chand came to his house. They told him that Bhim Singh had beaten his daughter and as such he should go to the house of Amar Singh. He accompanied them to the house of Amar Singh. When they reached near the house of Amar Singh, explosion took place at the electricity transformer. They went near the transformer. It was found by them that accused was lying near transformer in burnt condition. They took Bhim Singh accused to the house of Amar Singh. Neha was lying inside the room on cot. She was unconscious. There were injuries on her entire body. She was also bleeding. Wooden pieces and one stick of Fagra were lying inside the room. Banti Devi and Amar Singh told him that Neha had been beaten by the accused. He denied the suggestion that Neha sustained injuries due to fall. He admitted that quarrel had taken place between Tilak Raj and accused about one year prior to the date of the incident. He admitted that criminal case was registered at Police Station Karsog in this connection. The case was transferred to their Panchayat and compromise has taken place between Tilak Raj and the accused. 15. PW-8 Bir Chand deposed that he has passed +2 examination. Accused was his brother. On 20.6.2009, Neha was sleeping with her grand mother. He was sleeping with his father. Dinesh was also sleeping with them. During night, he heard noise. He woke up. He saw that accused was beating his parents. Neha was present in the room with his mother. He got frightened. He came out of his room. His mother Banti Devi raised alarm. Accused removed Phati from the table. The accused had not beaten anybody with the aid of Phati in his presence. He alongwith his father, mother and sister went to the house of Prem Lata. Prem Lata told them that they should also call other villagers to the spot. Thereafter they went to the house of Kushal Chand and Duni Chand. Both of them had also accompanied them to their house. He alongwith his father, mother and sister went to the house of Prem Lata. Prem Lata told them that they should also call other villagers to the spot. Thereafter they went to the house of Kushal Chand and Duni Chand. Both of them had also accompanied them to their house. When they reached their house, accused was sitting on the bench. Neha was also sitting on the bench resting her head on the same. Thereafter, his mother went to the house of Yuv Raj, Vice President of the Panchayat. Accused went towards the electricity transformer. After some time, they heard explosion at the electricity transformer. On hearing explosion, they went towards the transformer. Accused was found lying near the transformer. Clothes, chest and arm portion of the body of accused was burnt. When Neha was lying on the bench, blood was oozing from her person. Neha and accused were brought to Civil Hospital, Karsog. Neha died in the hospital. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that accused has beaten Neha with the aid of Phati. He also denied the suggestion that Neha was dragged from her hair by the accused and she was brought to their room. He was not aware that there was a nail in the Phati. He denied portion A to A and B to B of his statement recorded under Section 161 Cr.P.C. In his cross-examination, he admitted that the accused used to live separately in his house constructed by him. He used to demand his share in the property from his father. He also admitted that Kaushalya takes liquor. He also admitted that accused used to ask his wife not to take liquor. He also admitted that during the night of occurrence, hot words were exchanged between accused and Amar Singh when accused demanded his share in the property from his father. He admitted that Amar Singh told accused that he would call Panchayat to settle this dispute. He also admitted that he alongwith his mother and sister went to the house of Panch and Up Pradhan to call them to their house. He did not know that Neha had run after them from the house when they had gone to the house of Up-Pradhan and Panch. He also admitted that he alongwith his mother and sister went to the house of Panch and Up Pradhan to call them to their house. He did not know that Neha had run after them from the house when they had gone to the house of Up-Pradhan and Panch. He admitted the suggestion that Neha had fallen from the courtyard and resultantly, she had sustained injuries on her person. He also admitted that his father is locked in litigation with Kushal Chand and Duni Chand. He also admitted that Kushal Chand and Duni Chand are not in visiting terms with them. He also admitted that Neha was lifted from the bushes by accused and was brought to the room of the house. He has seen pieces of Phati outside the house when the same were taken into possession by the police. Table was lying in broken condition in a room. He did not know that it was raining on the night of occurrence. Towards the end of his crossexamination, he denied the suggestion that accused used to take proper care of his children. 16. PW-9 Dalip Singh Verma, deposed that he received telephonic message from Rajinder Kumar JE that one person had climbed on electricity transformer at Kumaro which has resulted in disruption of electricity. 17. PW-10 Nikka Ram, has taken photographs Ext. P-21 to P-25. 18. PW-11 Haru Ram, deposed that on 21.6.2009, at 4:30 AM, Bir Chand came to his house. Bir Chand told him that accused had beaten his daughter and she was lying unconscious. Bir Chand had also disclosed him that accused had beaten his daughter with Phati. He also told him that accused had climbed on electricity transformer and he was lying near the transformer. His condition was serious. 19. PW-12 Dr. Dinesh Sharma, has conducted post mortem on the body of deceased Neha Kumari. He issued MLC Ext. PE. According to him, the deceased died due to neurogenic shock due to ante mortem head injury. The injuries shown in MLC could have been caused with the aid of blunt weapon. The duration of injuries shown in the MLC was within few hours. PW-12 Dr. Dinesh Sharma, has also examined the accused. He has issued MLC Ext. PG. 20. Statements of PW-13 Pawan, PW-14 Jai Ram, PW-15 Const. Jai Singh, PW-16 Const. Lal Singh, are formal in nature. 21. The duration of injuries shown in the MLC was within few hours. PW-12 Dr. Dinesh Sharma, has also examined the accused. He has issued MLC Ext. PG. 20. Statements of PW-13 Pawan, PW-14 Jai Ram, PW-15 Const. Jai Singh, PW-16 Const. Lal Singh, are formal in nature. 21. PW-17 HC Shrawan Kumar deposed that on 21.6.2009, the case property relating to this FIR was deposited with him by the I.O. and the same was deposited in the Malkhana by him. On 23.6.2009, the case property was sent to FSL, Junga through Const. Lal Singh vide RC No. 60/2009. 22. PW-18 HC Tek Chand deposed that on 21.6.2009, he went to Civil Hospital, Karsog in connection with report No. 8 recorded in the rojnamcha at Police Station, Karsog. Neha was subjected to medical examination by the Medical Officer. Neha died in the hospital. The Police Station, Karsog was informed by him on telephone. Thereafter, SHO Vijay Sen visited the hospital. 23. Statement of PW-19 Tilak Singh, is formal in nature. 24. PW-20 Insp. Rajinder Parshad, deposed that the accused was likely to be discharged from the hospital on 16.7.2009. He directed HHC Ishwar Dass to bring accused to Police Station Karsog, after his discharge from the hospital for interrogation. He was subjected to interrogation. 25. Statement of PW-21 Insp. Amar Chand Sharma, is formal in nature. 26. PW-22 SI Vijay Sen, is the I.O. He deposed the manner in which the information was received at Police Station, Karsog at 6:10 AM. The dead body was kept in the mortuary of the hospital. The post mortem examination was got conducted. He recorded the statement of Banti Devi under Section 154 Cr.P.C. vide Ext. PY. The accused was also got medically examined. His blood and urine samples were taken separately. Site plan was prepared. He took into possession Phati, one stick of Phagra from the room, pair of Chappal and photographs of the spot. The parcels were sent to FSL, Junga. He denied the suggestion in the cross-examination by the learned Advocate appearing on behalf of the accused that Banti and Amar Singh had disclosed him during the course of investigation that the accused had picked up a quarrel with Amar Singh relating to some land dispute. He denied the suggestion that Neha fell on the stones and sustained injuries on her person. He denied the suggestion that Neha fell on the stones and sustained injuries on her person. He denied the suggestion that Phati was taken into possession by him which was broken into pieces. 27. The case of the prosecution, precisely, is that the accused had beaten Neha mercilessly. Thereafter, he tried to commit suicide by touching electric wires of transformer. He received severe injuries. The accused and Neha were taken to hospital. Neha died in the hospital at 6:30 AM. The police investigated the matter. 28. According to the prosecution, PW-1 Banti Devi, PW-2 Amar Singh and PW-8 Bir Chand were eye-witnesses of the incident dated 20.6.2009. PW-1 Banti Devi is the mother of the accused. In her examination-in-chief, she has categorically deposed that the accused did not beat Neha in her presence. She was declared hostile. She was cross-examined. She denied the suggestion that the accused had inflicted injuries on the person of Neha with the aid of Phati, having been removed by him from the table, lying in the room. She denied the suggestion that Neha was bleeding from her head, forehead, arm and stomach. She also denied the suggestion that her family members had told her that Neha became unconscious and accused had fled from the room. She has denied portions A to A, B to B, C to C, D to D and E to E of her statement recorded under Section 154 Cr.P.C. In her cross-examination, she has admitted specifically that accused had demanded share in the property from his father. Hot words were exchanged between the accused, her and Amar Singh, her husband. Thereafter, she went to the house of Up Pradhan to bring her on the spot. She also admitted that there was retaining wall of 20 ft. height in the compound of her house. She also admitted that Neha was talking when she had returned to her house from the house of Up- Pradhan. She also admitted that the accused Bhim Singh used to look after his children properly. She also admitted that they were locked in litigation with Kushal Chand, Duni Chand and Bindu. She also admitted in her cross-examination that Neha had also run from the house after them when they had gone to the house of Up-Pradhan. PW-2 Amar Singh deposed that accused did not administer beatings to Neha in his presence. She also admitted that they were locked in litigation with Kushal Chand, Duni Chand and Bindu. She also admitted in her cross-examination that Neha had also run from the house after them when they had gone to the house of Up-Pradhan. PW-2 Amar Singh deposed that accused did not administer beatings to Neha in his presence. He also denied the suggestion that about 3 months prior to the incident, accused had given beatings to his wife and children and resultantly, Kaushalya, the wife of the accused, went to her parents' house. He also denied the suggestion that about 6-7 days back, accused had beaten his daughter Neha and she bled from the nose and mouth. He also denied the suggestion that accused gave beatings to Neha with the aid of Phati. He also denied the suggestion that Neha was beaten by the accused with the stick. He also denied portions A to A, B to B, C to C, D to D, E to E and G to G of his statement recorded under Section 161 Cr.P.C. In his cross-examination, he also admitted that accused had demanded his share in his property on the night of the incident. They went alongwith the wife and second son Bir Chand to the house of Prem Lata to bring her to their house to settle the dispute. He also admitted that Neha had also ran after them when they left the house in order to go to the house of Panch Prem Lata. He also admitted that Neha had fallen from the compound of the house on the bushes beneath the retaining wall. He also admitted the suggestion that Neha had sustained injuries on her body due to this fall. PW-8 Bir Chand was also present on the spot as per the prosecution version. In his cross-examination, he denied that the accused has beaten anybody with the aid of Phati in his presence. He alongwith his father, mother and sister went to the house of Prem Lata Panch. He denied the suggestion that the accused had beaten Neha with the aid of Phati. In his cross-examination, he also denied the suggestion that Neha was pulled from her hair by the accused. He also denied that there was nail in the Phati. In his cross-examination, he further admitted that the accused used to demand share in the property from his father. In his cross-examination, he also denied the suggestion that Neha was pulled from her hair by the accused. He also denied that there was nail in the Phati. In his cross-examination, he further admitted that the accused used to demand share in the property from his father. He also admitted that his father was locked in litigation with Kushal Chand and Duni Chand. They were not in visiting terms. 29. According to PW-1 Banti Devi, PW-2 Amar Singh and PW-8 Bir Chand, the accused has not administered beatings to the deceased. According to the statements of PW-1 Banti Devi and PW-2 Amar Singh the accused was demanding his share in the property. A quarrel had taken place. They went to the house of Pradhan. Neha (deceased) followed them and according to the statement of PW-2, the father of the accused, Neha had fallen from the compound of the house in the bushes beneath the retaining wall and she received injuries on body due to this fall. 30. PW-1 Banti Devi, PW-2 Amar Singh and PW-8 Bir Chand have also resiled from their statements recorded under Section 154/161 Cr.P.C. They were cross-examined. In their cross-examination also, these witnesses have categorically denied that they have seen the accused giving beatings to the deceased Neha. 31. Now, as far as the statement of PW-3 Prem Lata is concerned, she was told by Kushal Chand, the manner in which Neha had received injuries 6-7 days prior to the incident. Kushal Chand has appeared as PW-6. According to him, Neha came to his house. Her face was swollen. It has come in the statements of PW-1 Banti Devi, PW-2 Amar Singh that relations with Kushal Chand were inimical. It has also come in the statement of PW-8 Bir Chand that the relations between Kushal Chand and his father were strained. They were involved in litigation and they were not in visiting terms. If the relations were strained, there was no occasion for Neha to visit the house of Kushal Chand. Thus, the statements of PW-3 Prem Lata and PW-6 Kushal Chand are not trustworthy. Duni Chand is also brother of Kushal Chand. 32. The statements of PW-3 Prem Lata and PW-6 Kushal Chand have been relied upon by the prosecution to prove extra judicial confession made by the accused by uttering ?Aaj maine dil se ise mara hai?. Thus, the statements of PW-3 Prem Lata and PW-6 Kushal Chand are not trustworthy. Duni Chand is also brother of Kushal Chand. 32. The statements of PW-3 Prem Lata and PW-6 Kushal Chand have been relied upon by the prosecution to prove extra judicial confession made by the accused by uttering ?Aaj maine dil se ise mara hai?. The statements cannot be relied upon for the simple reason that they have not stated so when their statements were recorded by the police under Section 161 Cr.P.C. PW-3 Prem Lata has admitted in her cross-examination that she has not disclosed to the police during the course of recording her statement that the accused has disclosed to her that ?Aaj maine dil se ise mara hai?. PW-6 Kushal Chand has also admitted that he was not in visiting terms with Amar Singh. He had disclosed to the police during the course of recording of his statement that he had asked the accused why he had beaten Neha. (Confronted with statement Mark D under Section 161 Cr.P.C., in which it is not so recorded). He had also disclosed to the police during the course of recording of his statement that accused told him that ?Aaj maine dil se ise mara hai?. (Confronted with the statement Mark D under Section 161 Cr.P.C. in which it is not so recorded). He admitted towards the end of his cross-examination that Bindu and Duni Chand were his brothers. In case the accused had made extra-judicial confession before PW-3 Prem Lata and PW-6 Kushal Chand, it ought to have been recorded in statements recorded under Section 161 Cr.P.C. The witnesses have made improvements upon their previous statement recorded under Section 161 Cr.P.C. 33. According to PW-12 Dr. Dinesh Sharma, the deceased died due to neurogenic shock due to ante mortem head injury. The accused was also examined by PW-12 Dr. Dinesh Sharma. According to the prosecution case, the accused felt repentant and tried to commit suicide by touching the live electric wire of the transformer. PW-12 Dr. Dinesh Sharma has specifically deposed that the accused had not sustained burn injuries on his hands. If the accused had touched the electric wire with his hands, there ought to have been burn injuries on his hands. He has received burn injuries mainly on his stomach. PW-12 Dr. Dinesh Sharma has specifically deposed that the accused had not sustained burn injuries on his hands. If the accused had touched the electric wire with his hands, there ought to have been burn injuries on his hands. He has received burn injuries mainly on his stomach. PW-5 Baldev has admitted in his cross-examination that no one can touch the transformer without the support of staircase. Thus, the prosecution version that the accused has tried to commit suicide by touching the transformer wire is not proved conclusively. 34. What emerges from the entire evidence discussed hereinabove, is that the accused had demanded a share of property from his father during the fateful night. The quarrel took place between the father, mother and the accused. The family went to the house of Pradhan to settle the dispute. We have already noticed, as per the statements of PW-1 Banti Devi and PW-2 Amar Singh that Neha came after them. PW-2 Amar Singh has deposed that Neha had fallen. Thus, the defence version is also probablized that Neha might have received injuries by falling from 20 feet compound wall. 35. According to the prosecution version, the accused was living separately from his family. His wife was also residing separately. Two children used to remain with the accused. The relations between the accused and his family members were strained due to property dispute. Thus, there was no occasion for Neha and Dinesh to come to the house of their grand parents during night, more particularly, when PW-1 Banti Devi deposed that they had not taken their meals at her house. PW-1 Banti Devi deposed that the accused was drunk. We have gone through the FSL report. The presence of ethyl alcohol in blood and his urine was only 32.88 mg% and 67.27 mg%, respectively. It cannot be stated on the basis of Ext. PA/J, report of the FSL that the accused was drunk at the time when he is stated to have gone to his father's house and the alleged incident took place. 36. The distance between the house of the accused and other family members was only 200 ft. away. There were other houses near the house of Amar Singh. In case, they had raised hue and cry, the same would have been noticed by the people residing near the house of Amar Singh. 37. PW-8 Bir Singh was young boy. 36. The distance between the house of the accused and other family members was only 200 ft. away. There were other houses near the house of Amar Singh. In case, they had raised hue and cry, the same would have been noticed by the people residing near the house of Amar Singh. 37. PW-8 Bir Singh was young boy. He had already passed 10+2 examination. The mother, father and brother could easily save Neha, if she was beaten mercilessly by the accused. The prosecution has taken into possession the Pajama and Shirt of Amar Singh which were stained with blood. He has appeared as PW-2. PW-2 Amar Singh, in his statement has not deposed that he had tried to save Neha and had moved her to the hospital. How, his clothes were stained with blood has not been explained by the prosecution. The blood, if any, was bound to be present on the clothes of the accused and not of PW-2 Amar Singh vide Ext. 8a and 8b of Ext. PA/H, FSL report. The shirt of the accused was also sent for chemical examination. It was found with small holes of burning, characteristic of burning by spark from electricity. No blood stains were found on it as per Ext. PA/G, FSL report. The prosecution has failed to prove its case against the accused beyond reasonable doubt. 38. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 7.10.2010 rendered by learned Addl. Sessions Judge, Mandi, Camp at Karsog, H.P., in Sessions Trial No. 4 of 2009 is set aside. The accused is acquitted of the charges framed under Sections 302 and 309 IPC. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 39. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.