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2014 DIGILAW 944 (HP)

Krishna Devi v. State of Himachal Pradesh

2014-07-21

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Per Rajiv Sharma, Judge: The present appeal is instituted against the judgment dated 16.10.2004 rendered by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 29 of 2002, whereby the appellants/accused, (hereafter referred to as the “accused for the sake of convenience), who were charged with and tried for offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each and in default of payment of fine to further undergo simple imprisonment for six months under Section 302 read with Section 34 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- each and in default of payment of fine to further undergo simple imprisonment for six months under Section 201 read with Section 34 of the Indian Penal Code. The sentences were ordered to run concurrently. The co-accused Sant Ram and Sudama Ram were acquitted of the charges framed against them. 2. The case of the prosecution, in a nutshell, is that the deceased Rikhi Ram was married to accused Krishna Devi. Accused Maina Devi is mother of accused Krishna Devi and accused Kamla Devi. According to PW23 Chaudhary Ram, he was working as servant with the deceased since July 2001. The deceased had constructed three storeyed house adjacent to the house of his in-laws. He was residing with the deceased in the middle floor of the house. Sita Ram, Roop Lal and Lal Chand were residing as tenants in the ground floor. According to him, wife of the deceased was having acquaintance with accused Sant Ram. The deceased used to doubt the character of his wife. He used to say him that the accused Sant Ram had illicit relations with his wife and due to this reason, the deceased had strained relations with his wife. The accused Krishna Devi along with her children was residing in her parental house for the last three months, which was situated near the house of the deceased. The accused Kamla Devi, younger sister of accused Krishna Devi was also residing with her parents. The accused Sudama Ram used to meet accused Kamla Devi. On 11.8.2001, after taking dinner, he and the deceased went to lintel of the house to sleep. The accused Kamla Devi, younger sister of accused Krishna Devi was also residing with her parents. The accused Sudama Ram used to meet accused Kamla Devi. On 11.8.2001, after taking dinner, he and the deceased went to lintel of the house to sleep. Sita Ram, Lal Chand and Roop Lal were already sleeping on the lintel. At about 11.30 P.M., the deceased shouted “CHOR-CHOR” and went towards the house of his in-laws. He also got up. After some time, he heard noise emanating from the house of in-laws of the deceased. He rushed to the house of in-laws of the deceased. When he reached near verandah of the house, he noticed that accused Maina Devi and Kamla Devi were administering beatings to the deceased. The accused Krishna Devi was also present there. The accused Sant Ram and Sudama Ram were also present near the door of the house. When he tried to save the deceased, accused Maina Devi gave him a blow with a wooden plank on his back. The deceased lost his consciousness. The accused Maina Devi, Kamla Devi and Krishan Devi dragged the deceased inside the room and locked the door. The accused Sant Ram and Sudama Ram ran away from the spot. He went back to lintel of the house and informed about the incident to Sita Ram, Roop Lal and Lal Chand. Thereafter, since they did not hear any voice of quarrel, they thought that the accused had slept in his in-laws house. On 12.8.2001, at about 6.00 A.M., when he was standing near window of his room, accused Krishna Devi asked about the deceased. He told her that they themselves dragged the deceased to their room after giving him beatings. After some time, he came down to the courtyard and saw Bimla Devi, Roop Lal, Sita Ram and Lal Chand standing near the dead body of the deceased. He informed the police on telephone. The police visited the spot and recorded his statement vide Ext.PW23/A, on the basis of which FIR was registered against the accused persons. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities. 3. The prosecution examined as many as twenty nine witnesses in support of its case. The accused were examined under Section 313 Cr.P.C.. They denied the case of the prosecution and claimed innocence. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities. 3. The prosecution examined as many as twenty nine witnesses in support of its case. The accused were examined under Section 313 Cr.P.C.. They denied the case of the prosecution and claimed innocence. Learned Sessions Judge convicted and sentenced the accused/appellants under Sections 302 and 201 read with Section 34 of the Indian Penal Code, while acquitted the accused Sant Ram and Sudama Ram vide judgment dated 16.10.2004, as stated hereinabove. Hence, the appeal. 4. Mr. Anoop Chitkara and Mr. I.S. Chandel, learned Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. P.M. Negi, learned Deputy Advocate General, has supported the impugned judgment dated 16.10.2004. 6. We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 7. PW1, Gopal Negi, deposed that he was shopkeeper at Nogli. The deceased died on 12.8.2001. The police officials visited the spot. Inquest report, Ext.PW1/A was prepared. Watch, Ext.P1 and cassettes Ext.P2 were taken into possession by the police officials vide seizure memo, Ext.PW1/B. The police also took into possession blood soaked soil vide memo, Ext.PW1/C. One wooden plank, Ext.P3 was also taken into possession vide memo, Ext.PW1/D. In cross-examination, he deposed that he could not say from where the seal impression was brought by the police officials. 8. PW2, Jai Chand, deposed that he was running a Karyana shop at Nogli. The deceased was known to him. The deceased had constructed two storeyed building. The land was given to the deceased by his father-in-law and mother-in-law in order to construct a residential house. The inquest report was prepared. The wrist watch and cassettes were taken into possession by the police. The police also took into possession blood soaked soil in his presence. The police officials also brought one wooden plank from the room. He could not say who was the owner of the room. He did not enter the room. In cross-examination, he admitted that the residential houses were situated by three sides of the residential house of the deceased. He also admitted that if any quarrel took place in the residential house of the deceased, the same could be heard in adjoining residential houses. He did not enter the room. In cross-examination, he admitted that the residential houses were situated by three sides of the residential house of the deceased. He also admitted that if any quarrel took place in the residential house of the deceased, the same could be heard in adjoining residential houses. He also admitted that no blood clots and hair were present on the wooden plank, Ext.P3. He also admitted that he did not see any blood clot on watch, Ext.P1. Cassettes, Ext.P2 are generally available in the market. 9. PW3, Lal Chand, deposed that he remained tenant of the deceased at Nogli for one year. Roop Lal and Ganga Ram were also residing with him. He, Ganga Ram and Roop Lal were sleeping on the lintel. Chaudhary Ram was servant of the deceased. The electricity was not available on that day. The deceased and his servant were also talking on the lintel of the house. Thereafter, he slept and he did not know what happened. He did not know whether the deceased had gone somewhere or not because he had already slept. Next day, he saw dead body of the deceased lying nearby his house. The witness was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that Chaudhary Ram met him in the morning at about 5.00/6.00 A.M. and disclosed him about the dead body of the deceased. 10. PW4, Roop Lal, deposed that he also remained tenant of the deceased for two years. He was residing with his younger brother Sita Ram. On 12.8.2001, he along with Lal chand and Sita Ram was sleeping on the lintel. The deceased and Chaudhary Ram also came to sleep on the lintel. The deceased and Chaudhary Ram were talking to each other. He could not state whether the deceased Rikhi Ram had gone somewhere during the night period or not because he had already slept. In the morning at 6.00 A.M., Chaudhary Ram came to him and told that the dead body of the deceased was lying outside the room. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that he got up at about 4.00 A.M. in the morning on 12.8.2001. The deceased and his servant Chaudhary Ram were not present. He thought that they had gone to their own room, because it was raining. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that he got up at about 4.00 A.M. in the morning on 12.8.2001. The deceased and his servant Chaudhary Ram were not present. He thought that they had gone to their own room, because it was raining. In cross-examination conducted by the learned counsel for the accused, he deposed that the electricity was not available since the previous evening. The grill or railing was not available on the lintel. The Deceased and Chaudhary Ram were talking to each other and they had also consumed liquor. 11. PW5, Sita Ram, also deposed that he was tenant of the deceased. On 12.8.2001, he along with Lal Chand and Roop Lal were sleeping on the lintel. At about 9.00/10.00 P.M, the deceased along with Chaudhary Ram also came on the lintel. The deceased did not go anywhere in his presence because he had already slept. He did not listen any loud voice during the night period. Chaudhary Ram came to him in the morning between 5.00 A.M. to 6.00 A.M.. He told him that the deceased was lying outside the room. He could not state on which portion of body, the deceased had sustained injury. He was also declared hostile. In his cross-examination conducted by the learned Public Prosecutor, he was confronted with his statement recorded under Section 161 Cr.P.C.. In his cross-examination conducted by the learned counsel for the accused, he admitted that electricity was not available on the date of the incident. He admitted that there was no grill or railing available on the lintel. 12. PW6, Jiwan Singh deposed that he also remained tenant of the deceased for about 1 ½ years. Nothing happened in his presence. No one came to call him and nothing happened in his presence. He did not visit Rampur and bring any person to Rampur in a taxi. He was also declared hostile. 13. PW7, Kumari Shalu, deposed that the accused Krishna Devi is her mother. According to her, the deceased had constructed a house at Nogli. The deceased and Krishna Devi were having cordial relations. No quarrel took place in her presence at any point of time. She was also declared hostile. He was also declared hostile. 13. PW7, Kumari Shalu, deposed that the accused Krishna Devi is her mother. According to her, the deceased had constructed a house at Nogli. The deceased and Krishna Devi were having cordial relations. No quarrel took place in her presence at any point of time. She was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, she denied the suggestion that the relations between the deceased and Krishna Devi were strained and Krishna Devi used to reside in the house of her mother. She further denied the suggestion that the deceased was beaten up by her mother, maternal grandmother and aunt. 14. PW8, Dinesh Kumar, deposed that he was called by the police. The police officials arrested the accused Krishna Devi and 2-3 other persons. The accused Krishna Devi did not make any disclosure statement in his presence. She did not produce anything to the police officials in his presence. According to him, Kamla Devi and Maina Devi did not give any statement to the police officials in his presence. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he admitted that he had signed the memo, Ext.PW8/A. He denied that Chaudhary Ram identified the spade (kassi), Ext.P4. Kamla Devi did not make any statement to the Investigation Officer. He also denied that the suggestion that Kamla Devi produced stick, Ext.P5 in his presence. He did not remember that the stick was identified by Chaudhary Ram. He also denied the suggestion that the torch, Ext.P6 was handed over to the police by accused Maina Devi. In cross-examination conducted by the learned counsel for the accused, he admitted that spade, Ext.P4, stick, Ext.P5 and torch, Ext.P6 were already in possession of the police officials. He noticed some stain on the stick, Ext.P5, but he could not state nature of stain. 15. PW9, Sohan Singh, testified that the accused Krishna Devi was known to him. She did not make any disclosure statement in his presence. She did not hand over any article to the police. The accused Kamla Devi also did not make any disclosure statement in his presence. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he was confronted with his statement recorded under Section 161 Cr.P.C.. He denied that accused Krishna Devi had handed over spade to the police officials in his presence. The accused Kamla Devi also did not make any disclosure statement in his presence. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he was confronted with his statement recorded under Section 161 Cr.P.C.. He denied that accused Krishna Devi had handed over spade to the police officials in his presence. He admitted in his suggestion that the memo Ext.PW8/B was bearing his signature. He also denied that the stick and spade were identified by Chaudhary Ram. He also denied that the accused Maina Devi produced torch to the police officials in his presence. He admitted his signature on memo, Ext.PW8/C. He denied the suggestion that he had signed the memos after reading the contents thereof. The contents of memos were not explained to him by the police. In cross-examination conducted by the learned counsel for the accused, he deposed that spade, stick and torch were already in possession of the police officials. 16. PW10 Krishan Lal and PW11 Kashmir Singh are formal witnesses. 17. PW12 Chet Ram deposed that the police brought clothes to his hotel. He did not know who had given the clothes to the police officials. The accused Sant Ram and Sudama Ram were not known to him. He was also declared hostile. In his cross-examination conducted by the learned Public Prosecutor, he deposed that he admitted that he had signed memo, Ext.PW12/A. He could not state that the shirt and pants shown to him in the court were the same which were sealed in a parcel by the police officials. He also admitted his signature on Ext.PW12/B. He deposed that he did not read the contents of the memos, when he signed the same. 18. PW13, Dr. N.K. Verma, deposed that on 13.8.2001, he medically examined the accused Krishna Devi, Kamla Devi and Maina Devi vide MLCs Ext.PW13/A, Ext.PW13/B and Ext.PW13/C respectively. According to his opinion, the injuries mentioned in the MLCs were simple in nature. 19. PW14, Dr. Ganga Rawat, deposed that on the applications moved by the police, vide Ext.PW14/A and Ext.PW14/C , she medically examined accused Maina Devi and Kamla Devi vide MLCs, Ext.PW14/B and Ext.PW14/D respectively. According to her, the injuries on the persons of the accused were simple in nature. 20. PW15, Dr. 19. PW14, Dr. Ganga Rawat, deposed that on the applications moved by the police, vide Ext.PW14/A and Ext.PW14/C , she medically examined accused Maina Devi and Kamla Devi vide MLCs, Ext.PW14/B and Ext.PW14/D respectively. According to her, the injuries on the persons of the accused were simple in nature. 20. PW15, Dr. R.K. Bhatia, deposed that he conducted the post-mortem on the dead body of the deceased vide report, Ext.PW15/D. According to his opinion, the deceased died due to multiple fractures leading to excessive bleeding and intra cranial bleeding with haematoma formation leading to concussion and death. Probable time elapsed between injury and death was 1-2 hours and between death and post mortem was 18-36 hours. He also examined the chemical examiner’s reports, Ext.PW15/B and Ext.PW15/C. In cross-examination, he admitted that he had given the opinion that wounds on forehead, skull and ear could not be caused by sealed weapon. According to him spade was shown to him by the police officials and thereafter, he gave the opinion. He volunteered that he did not remember that spade was shown to him when he gave the opinion. He denied that incised would injuries could not be caused by blunt weapon. He volunteered that the incised injuries could be caused if blunt weapon is used by force. He admitted that in the final opinion, he had not specifically mentioned which injuries were caused by the spade and stick. 21. PW16, Ramesh Kumar, deposed that on 12.8.2001 at the instance of the police, he clicked the photographs, Ext.PW16/A , Ext.PW16/A-1 to Ext.PW16-A/2. 22. PW17, Raju, deposed that the deceased was his uncle. On 25.7.2000, he visited the house of his uncle. Krishna Devi used to quarrel with the deceased. In cross-examination, he admitted that divorce took place between the deceased and the accused Krishna Devi. 23. PW18, Constable Daulat Ram is a formal witness. 24. PW19, Constable Prem Chand, deposed that on 20.8.2001, MHC Ramesh Kumar handed over 24 sealed parcels to him for being deposited at FSL Junga. He deposited the same at FSL Junga on 23.8.2001. 25. PW20, HC Diwan Chand, deposed that on 11.12.2001 at about 3.30 A.M., report No.33, Ext.PW20/A was recorded at the instance of accused Maina Devi and Kamla Devi. 26. PW21, S.I. Lal Singh, testified that Ruqua was received at Police Station on 12.8.2001, on the basis of which FIR, Ext.PW21/A was registered. 27. 25. PW20, HC Diwan Chand, deposed that on 11.12.2001 at about 3.30 A.M., report No.33, Ext.PW20/A was recorded at the instance of accused Maina Devi and Kamla Devi. 26. PW21, S.I. Lal Singh, testified that Ruqua was received at Police Station on 12.8.2001, on the basis of which FIR, Ext.PW21/A was registered. 27. PW22, HC Ramesh Chand is a formal witness. 28. PW23, Chaudhary Ram, is the complainant. According to him, he was working as servant in the shop of the deceased. On 11.8.2001, he along with other tenants and deceased was sleeping in the upper storey of the building during night. At about 11.30 P.M., the deceased went to the residential house of accused Kamla Devi. Maina Devi and Kamla Devi were quarrelling with the deceased. He also went to the spot. The accused Maina Devi and Kamla Devi were carrying sticks in their hands. It was dark. He volunteered that he sustained one stick blow. He could not state who had inflicted stick blow upon him because it was dark. He did not see the accused Krishna Devi at the place of occurrence. He did not know where the deceased was taken by Kamla Devi and Maina Devi because he came back to the residential house of the deceased. He did not see the co-accused Sant Ram and Sudama Ram at the place of occurrence. In the morning, Krishna Devi inquired about the deceased. He saw the dead body of the deceased lying nearby the courtyard of the residential house of Maina Devi. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he was confronted with his statement recorded under Section 154 Cr.P.C, Ext.PW23/A. He admitted that he identified the stick, which was produced by the accused Kamla Devi to the police official in his presence vide memo, Ext.PW8/B. He also admitted that the accused Maina Devi had produced torch, Ext.P6 to the police office vide memo, Ext.PW8/C and he identified the torch before the police official. He told the police officials that torch was switched on at the time of incident. He denied that the accused Sant Ram and Sudama Ram produced clothes to the police officials in his presence. He admitted that he had signed the memos, Ext.PW12/A and Ext.PW12/B. He had sustained injury on the back portion of his head. He told the police officials that torch was switched on at the time of incident. He denied that the accused Sant Ram and Sudama Ram produced clothes to the police officials in his presence. He admitted that he had signed the memos, Ext.PW12/A and Ext.PW12/B. He had sustained injury on the back portion of his head. He could not state who had inflicted injury upon him due to darkness. Torch, Ext.P6 was lying on the ground during the night period. It was switched on. The deceased used to tell him that he would alienate his entire property at Nogli and would go to his native place at Nalagarh. He denied the suggestion that the accused Krishna, Kamla and Maina dragged the deceased inside the room. He volunteered that quarrel took place only between the deceased and the accused Maina Devi and Kamla Devi and thereafter, he left the place. In cross-examination conducted by the learned counsel for the accused, he admitted that he did not tell the Investigating Officer in his statement under Section 154 Cr.P.C. that torch, Ext.P6 was lying on the place of incident during the night and it was switched on. Torch, Ext.P6, when produced in the court, was without cell and its switch was also out of order. He stayed at the place of occurrence only for four minutes, thereafter, he came back and slept. The deceased used to take liquor during night and used to quarrel with the accused daily. He denied that there was no electricity for 3-4 days. He volunteered that there was no electricity till 4.30 P.M.. He did not contact the police during the night. He could not state who had killed the deceased. He did not inform the incident to the tenants of the deceased during night because they had slept. 29. PW24, HC Lal Chand, PW25 Constable Manoj Kumar and PW26 Suresh Kumar are also formal witnesses. 30. PW27, Ram Rattan, deposed that on 12.8.2001, Maina Devi visited the Police Station and lodged the report vide Ext.PW20/A that Rikhi Ram had beaten up her and her daughter. The accused Maina Devi and Kamla Devi were sent for medical examination. He visited the place of incident. Chaudhary Ram met him on the spot and he recorded his statement, under Section 154 Cr.P.C., on basis of which FIR was registered. The accused Maina Devi and Kamla Devi were sent for medical examination. He visited the place of incident. Chaudhary Ram met him on the spot and he recorded his statement, under Section 154 Cr.P.C., on basis of which FIR was registered. He inspected the dead body and prepared inquest report, Ext.PW1/A. Photographs, Ext.PW16/A, Ext.PW16/A-1 to Ext.PW16/A-16 were got clicked. The dead body of the deceased was sent for post-mortem. He collected blood soaked soil, one wrist watch and two cassettes vide seizure memo, Ext.PW1/B, which were lying near the dead body of the deceased. Blood clots available in the verandah of the house of the accused were lifted vide memo, Ext.PW27/C. Two wooden planks were also taken into possession vide seizure memo, Ext.PW1/D. He prepared the site plan, Ext.PW27/D. He recorded the statement of accused Krishna Devi under Section 27 of the Indian Evidence Act vide Ext.PW27/E, on the basis of which spade, Ext.P4 was got recovered vide memo, Ext.PW8/D. He also recorded disclosure statement of Kamla Devi under Section 27 of the Indian Evidence Act vide Ext.PW27/G, which led to recovery of stick, Ext.P5 vide memo, Ext.PW8/B. The accused Sant Ram produced his shirt, Ext.P7 and pants, Ext.P8 vide seizure memo, Ext.PW12/A and the same were take into possession vide memo, Ext.PW12/A. The accused Sudama Ram also produced pants, Ext.P9 and shirt, Ext.P10 and the same were taken into possession vide memo, Ext.PW12/B. The accused Maina Devi also produced torch, Ext.P6 and the same was taken into possession vide memo, Ext.PW8/C. In cross-examination, he admitted that when he recorded statement under Section 154 Cr.P.C., there was no recital of torch and light. He also admitted that there was no recital of torch and light in the inquest report. He also admitted that the time was not mentioned in the inquest report. He volunteered that it was mentioned in the zimini file. He could not say that the electricity was not available for four days at Nogli. He volunteered that the electricity was not available on the date of alleged incident. He admitted that the torch, which was produced in the court, was neither having any switch nor cell. He volunteered that there was recital in the rapat recorded at the instance of the accused Maina Devi that the deceased was in intoxicated condition during the relevant night. He admitted that the torch, which was produced in the court, was neither having any switch nor cell. He volunteered that there was recital in the rapat recorded at the instance of the accused Maina Devi that the deceased was in intoxicated condition during the relevant night. According to him, only wooden planks, Ext.P3 were sent to the opinion of Medical Officer at the time of postmortem examination. 31. PW28, Dila Ram, deposed that the deceased was his brother. The deceased had visited his house 2-3 years back and informed him that his marriage with accused Krishna Devi stood dissolved. The deceased had informed him that the accused Sant Ram was having illicit relations with his wife Krishna Devi. In cross-examination, he deposed that the deceased had informed him that he had divorced accused Krishna Devi and he was not on visiting terms with his wife. He also admitted that the accused Krishna Devi and the deceased did not quarrel in his presence. 32. PW29, Avdesh Kumar, deposed that the accused Maina Devi is his mother. He denied that the accused Krishna Devi visited him on the intervening night of 11.8.2001 and 12.8.2001 at Rampur. He was also declared hostile. 33. What is contained in the statement of PW23 Chaudhary Ram recorded under Section 154 Cr.P.C. Ext.PW23/A, on the basis of which FIR was registered against the accused, is that the deceased used to tell him that Sant Ram had illicit relations with his wife and due to this reason, the deceased had strained relations with his wife. On 11.8.2001 he along with deceased went to lintel of the house in order to sleep. Lal Chand, Sita Ram and Roop Lal had already slept on the lintel. At about 11.30 P.M., the deceased shouted “CHOR-CHOR” and went towards the house of his in-laws. He also got up. He heard noise coming from the house of in-laws of the deceased. He went near verandah of the house of the in-laws of the accused and noticed that accused Maina Devi and Kamla Devi were administering beatings to the deceased. At that time, the accused Krishna Devi, Sant Ram and Sudama were also present. When he tried to save the deceased, accused Maina Devi gave him a blow with wooden plank on his back. The deceased lost his consciousness. At that time, the accused Krishna Devi, Sant Ram and Sudama were also present. When he tried to save the deceased, accused Maina Devi gave him a blow with wooden plank on his back. The deceased lost his consciousness. Thereafter, the accused Maina Devi, Kamla Devi and Krishan Devi dragged the deceased inside the room and locked the door. The accused Sant Ram and Sudama Ram fled away from the spot. He went back to lintel and informed about the incident to Sita Ram, Roop Lal and Lal Chand. Thereafter, since they did not hear any noise, they thought that the accused had slept in his in-laws house. On 12.8.2001, at about 6.00 A.M., when he was standing near window of his room, the accused Krishna Devi asked him about the deceased. He said to her that they themselves dragged the deceased to their room after giving him beatings. After some time, he went down to the courtyard and saw Bimla Devi, Roop Lal, Sita Ram and Lal Chand standing near the dead body of the deceased. Thereafter, he telephonically informed the police. Chaudhary Ram, while appearing in the witness box as PW23, deposed in his examination-in-chief that on 11.8.2001, at about 11.30 P.M., the deceased went to the residential house of accused Kamla Devi. The accused Maina Devi and Kamla Devi were quarrelling with the deceased. He also went to the spot. The accused Maina Devi and Kamla Devi were carrying sticks in their hands. It was dark. According to him, he sustained one stick blow. He could not tell who had inflicted stick blow upon him due to darkness. He did not see the accused Krishna Devi at the spot. He also did not know where the deceased was taken by accused Kamla Devi and Maina Devi because he came back to the residential house of the deceased. He did not see the co-accused Sant Ram and Sudama Ram at the spot. In the morning, Krishna Devi inquired from him about the deceased. Thereafter, he saw the dead body of the deceased lying nearby the courtyard of the residential house of the accused Maina Devi. 34. He did not see the co-accused Sant Ram and Sudama Ram at the spot. In the morning, Krishna Devi inquired from him about the deceased. Thereafter, he saw the dead body of the deceased lying nearby the courtyard of the residential house of the accused Maina Devi. 34. There are major contradictions, improvements and embellishments in the statement made by PW23 Chaudhary Ram in the Court and statement recorded under Section 154 Cr.P.C. vide Ext.PW23/A. In Ext.PW23/A, he categorically stated that after quarrel, he came back to the lintel and told about the incident to Sita Ram, Lal Chand and Rup Lal, who were already sleeping on the lintel. However, in the court while appearing as PW23, he had not stated so. According to him, the deceased ran towards the house of his in-laws shouting “CHOR CHOR”. Had the deceased shouted in loud voice “CHOR CHOR”, his tenants, Roop Lal, Sita Ram and Lal Chand, who were also sleeping on the lintel, would have got up. PW3, Lal Chand, PW4 Roop Lal and PW5 Sita Ram, in tandem, deposed that the deceased and his servant were talking to each other on the lintel of the house. Thereafter, they slept and they did not know what happened. They were declared hostile. It has also come in the evidence that there were residential houses nearby the house of the deceased. However, no independent witness has been produced by the prosecution from these houses. The conduct of PW23 Chaudhary Ram was also unnatural. He had admitted that it was dark and he followed the deceased to the house of his in-laws. It is intriguing to note how he could identify the accused during night. He noticed that due to beatings administered by the accused, the deceased lost his consciousness and was dragged to the room by the accused and despite that he came back to lintel and slept; and in the morning, he saw the dead body of the deceased lying in the courtyard of the accused. When he saw that the deceased had lost his consciousness due to beatings administered by the accused and he was hit by the accused Maina with the wooden plank while saving the deceased, he should have raised hue and cry to attract attention of the inhabitants of nearby houses and it was also expected from him to inform the police immediately. It has also come in the evidence that the deceased had taken divorce from the accused Krishna Devi. According to brother of the deceased PW28, Dila Ram, he was living separately from his wife, Krishna Devi and in that eventuality, he was not supposed to go to the house of his in-laws by shouting “CHOR-CHOR”. 35. According to PW23, Chaudhary Ram, torch, Ext.P6 was switched on at the time of incident. However, he did not state in Ext.PW23/A that the torch, Ext.P6, lying on the spot, was switched on. In cross-examination he admitted that torch, which was shown to him in the court was without cell and its switch was also out of order. He admitted that he stayed at the spot for four minutes and thereafter he came back and slept. He also admitted that the deceased used to take liquor in the night and he used to quarrel with the accused daily. He also stated in Ext.PW23/A that the deceased used to tell him that his wife, Krishna Devi was having illicit relations with the accused Sant Ram and due to this reason, their relations became strained. PW23, Chaudhary Ram, was working as servant with the deceased in his shop. It is not believable that an employer will discuss about the character of his wife with his servant. 36. Now, the court will advert to the manner in which the recovery of spade, Ext.P4 and stick, Ext.P5 was effected vide memos, Ext.PW8/A and Ext.PW8/B on the basis of disclosure statements made by the accused Krishna Devi and Kamla Devi under Section 27 of the Indian Evidence Act vide Ext.PW27/E and Ext.PW27/G. 37. PW8 Dinesh Kumar and PW9 Sohan Singh, who were witnesses to the disclosure statements, Ext.PW 27/E and Ext.PW27/G, did not support the case of the prosecution at all and were declared hostile PW8, Dinesh Kumar, in his cross-examination conducted by the learned Public Prosecutor, denied that Krishna Devi had handed over kassi in his presence. He also denied that Chaudhary Ram identified the spade (kassi), Ext.P4. He also denied that the accused Kamla Devi produced stick, Ext.P5 in his presence. In cross-examination conducted by the learned counsel for the accused, he categorically admitted that the spade, Ext.P4, stick, Ext.P5 and torch, Ext.P6 were already in possession of the police officials. He also denied that Chaudhary Ram identified the spade (kassi), Ext.P4. He also denied that the accused Kamla Devi produced stick, Ext.P5 in his presence. In cross-examination conducted by the learned counsel for the accused, he categorically admitted that the spade, Ext.P4, stick, Ext.P5 and torch, Ext.P6 were already in possession of the police officials. PW9, Sohan Singh, in his cross-examination conducted by the learned Public Prosecutor denied that accused Krishna Devi had handed over spade to the police officials in his presence. He also denied that the accused Maina Devi produced torch to the police officials in his presence. According to him, the contents of memos were not explained to him by the police. In cross-examination conducted by the learned counsel for the accused, he also deposed that spade, stick and torch were already in possession of the police officials. PW27, Ram Rattan, also admitted that there was no recital of torch and electricity in the inquest report. 38. The post-mortem on dead body of the deceased was conducted by PW15 Dr.R.K.Bhatia. He proved the postmortem report, Ext.PW15/D. According to his opinion, the deceased died due to multiple fractures leading to excessive bleeding and also intra cranial bleeding with haematoma formation leading to concussion and death. The probable time elapsed between the injury and death was 1-2 hours and between death and post-mortem was 18-36 hours. He deposed that as per the chemical examiner’s report, Ext.PW15/B and Ext.PW15/C the wounds on forehead, scalp and ear were caused by spade and danda. However, he admitted in his cross-examination that he had given the opinion that the wounds of forehead, skull and ear could not be caused by the sealed weapon. He also admitted that he gave opinion at Sr. Nos. 1 and 2 on Ext.PW15/D after conducting post-mortem. Initially, he deposed that the spade was shown to him by the police officials and thereafter, he gave the opinion. Thereafter, he volunteered that he did not remember that the spade was shown to him when he gave the opinion. 39. We have gone through the post-mortem report, Ext.PW15/D carefully. As noticed above, PW15 Dr. R.K Bhatia, admitted in his cross-examination that he had given the opinion that the wounds on forehead, skull and ear could not be caused by the sealed weapon. 39. We have gone through the post-mortem report, Ext.PW15/D carefully. As noticed above, PW15 Dr. R.K Bhatia, admitted in his cross-examination that he had given the opinion that the wounds on forehead, skull and ear could not be caused by the sealed weapon. According to PW27 Ram Rattan, he moved an application, Ext.PW27/D to the Medical Officer, Khaneri Rampur to seek opinion whether the injuries inflicted on the deceased could be caused by wooden planks or not. PW27, Ram Rattan, also deposed that he had only sent wooden planks at the time of post-mortem examination. In the application, Ext.PW27/D, the police stated that they had recovered blood stained deodar wooden planks. It is only on 22.1.2002, PW15 Dr. R.K. Bhatia opined that as per the chemical examiner’s report, the wounds on forehead, scalp and ear were caused by kassi and Danda. He had not stated that the opinion was sought by PW27 Ram Rattan. In the application, Ext.PW27/D, there is no reference of kassi except two wooden planks of deodar tree. 40. Mr. P.M. Negi, learned Deputy Advocate General, has vehemently argued that the hair on the spade tallied with the hair of the deceased. Suffice it to say that since the recovery of the spade has not been proved in accordance with law, the report of the chemical examiner cannot be given any credence. 41. Statement of PW17, Raju and PW28, Dila Ram do not inspire any confidence. PW6, Jiwan Singh and PW7, Kumari Shalu, also did not support the case of the prosecution at all. 42. The prosecution has failed to prove the case against the accused beyond reasonable doubt. The trial court has convicted the accused on a mere superfluous approach without in-depth analysis of the relevant facts. 43. Accordingly, in view of the discussion and analysis made hereinabove, the appeal is allowed and the impugned judgment dated 16.10.2004 rendered by the learned Sessions Judge, in Sessions Trial No.29 of 2002 is set aside. The accused are acquitted of the charges framed against them by giving benefit of doubt. The fine amount, if any deposited by the accused is ordered to be refunded to them. The accused are on bail. The bails bonds furnished by them are ordered to be discharged. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.