IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA.

Cr. Appeal No. 469 of 2002 Date of Decision : September 9, 2011

State of H.P. …Appellant

Udey Ram …Respondent.

Coram**:**

v.

The Hon'ble Mr. Justice Deepak Gupta, Judge The Hon'ble Mr. Justice Sanjay Karol, Judge.

Whether approved for reporting?1 No

For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G.

For the respondent: Mr. Karan S. Kanwar, Advocate

Deepak Gupta, J. (Oral).

This appeal by the State is directed against the judgment dated 8.4.2002 delivered by the learned Sessions Judge, Sirmaur at Nahan, in Sessions Trial No. 34-ST/7 of 2001, whereby he acquitted the accused of having committed the offence of murder of his wife.

2. The prosecution story in brief is that the accused was married to Pushpa Devi and relations between them were not cordial. It is alleged that on 13.7.2001, the accused took his wife to Paraliwala jungle near village Digali, Tehsil Paonta Sahib. In the jungle, he gave her severe beatings and came back. He then

¹ Whether reporters of Local Papers may be allowed to see the judgment? Yes

informed his brother Ramesh Chand that his wife had suffered a fit in the jungle and they should go together to the jungle and bring his wife. Thereafter, Ramesh Chand, Mani Ram and Nain Singh accompanied the accused and went to the Paraliwala jungle, where search was made for Pushpa Devi. She was found in an unconscious state. She was wrapped in a bed sheet and brought home but there she was found to be dead. In the meantime, PW-1 Nishi Kant Sharma, Pradhan of Gram Panchayat informed the police and the police came to the house of the accused. The body of Pushpa Devi was taken into possession by the police and sent for post mortem. In the post mortem, it was found that Pushpa Devi had died because of the multiple injuries on her body.

3. On this basis, the accused was arrested. According to the prosecution, after his arrest the accused made a disclosure statement about the place where he had beaten Pushpa Devi with the stone and also informed that he can get the stone recovered. Pursuant to the statement, the accused took the police to Paraliwala jungle and got recovered blood stained stone which was taken into possession by the police. Thereafter, further investigation was conducted and the accused was charged and challaned with having committed an offence punishable under Section 302 read with Section 201 IPC.

4. There is no eye witness to the incident and the prosecution case is based on circumstantial evidence. The circumstances relied upon are: (i) that relations between the

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husband and wife were not cordial; (ii) that husband and wife were last seen going towards the jungle; and (iii) that the accused had made a disclosure statement which led to the recovery of the stone (Ext.P-1) which was allegedly used to cause injury on the person of the deceased.

5. The law is well settled that in cases based on circumstantial evidence, it is the duty of the prosecution to prove and link the circumstance in such a chain that it leads to the irresistible conclusion that it is the accused alone who is guilty of having committed the offence. Hypothesis so arrived at should exclude the possibility of the offence having been committed by any other person. Therefore, the circumstances should not only be consistent and lead to the conclusion that the accused alone is guilty but must exclude the possibility of there being any other offender.

STRAINED RELATIONS

6. As far as this circumstance is concerned other than PW-8 Smt. Shyam Dei, mother of the deceased, none of the other witnesses including the children of the deceased have supported the prosecution version. Even the version of Shyam Dei is that the accused was not permitting his daughter to visit her parental house for 15-16 years. She clearly states that she does not know how the accused used to maltreat the deceased. She has also admitted in her examination-in-chief itself that her daughter never made any complaint to her. She was only informed about the quarrel by the Pradhan Singha Ram. Her version is totally hearsay and no reliance can be placed upon the same. Other relatives have not stated a word in this behalf. Therefore, the first circumstance has not been proved.

LAST SEEN

7. With regard to the second circumstance, the only evidence is of PW-2 Sant Ram. He works as a Water Carrier in Digali Primary School. According to him, a day before the murder of Pushpa Devi, he had met the accused and his wife at about 8.00 a.m. near the house of Ganga Singh. He further states that the husband and wife were going towards the house of Dhanna in village Digali. The statement of this witness was recorded by the police about 2-3 months after the death of Pushpa Devi. There is no explanation why he did not inform the police or the villagers immediately after the body of Pushpa Devi was found that he had, on the previous day, seen the husband and wife together. Even accepting the statement of Sant Ram to be correct, all that can be gathered is that at about 8.00 a.m. the accused and his wife were going towards the house of one Dhanna. There is nothing unusual in a husband and wife going towards somebody's house. No evidence has been led to show that the husband and wife went towards Paraliwala jungle, where the body of the wife was later found.

8. It would also be pertinent to point out that the prosecution case was that after beating his wife, the accused came and met his brother and informed them that his wife had

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suffered a fit. However, this is not stated by the brother and other relatives, when they appeared in the witness box.

9. PW-3 Suman Kumari is the daughter of the deceased and the accused. According to her, on the day of her death, her mother Pushpa Devi had gone to Vikas Nagar and she was not accompanied by anybody. She further states that her father was at home as he was not feeling well and in the evening, some person from Rajpur came to their house and told her that her mother is in the jungle and had suffered a fit. She then informed her father about this fact and then her father and other villagers went towards jungle. Similarly, Ramesh Chand brother of the accused has not stated that the accused had informed him that he had left his wife in the jungle. Therefore, the second circumstance is also not proved.

DISCLOSURE STATEMENT

10. No reliance can be placed on the disclosure statement because even as per the prosecution case the accused alongwith his brother and other villagers had gone to Paraliwala jungle and recovered the body of Pushpa Devi and brought it back home. A disclosure statement can be taken in to consideration only if the maker of the statement has disclosed certain facts which were not known to the investigating party. By the time the disclosure statement was made it was known to the police that the body had been recovered from Paraliwala jungle and they even without associating the accused, could have ascertained where the body was found. If the stone was lying near the body and the police had carried out proper investigation, they could have recovered the stone during the process of investigation. Therefore, the disclosure statement was not made in accordance with law and no reliance can be placed on the same.

11. Even otherwise the witnesses to the disclosure statement have not supported the prosecution version and have turned hostile. PW-6 Jai Parkash, who is a witness to the recovery of the stone states that the stone was already with the police when he was asked to sign the disclosure statement with regard to the recovery of the stone. Therefore, this circumstance is also not proved.

12. In view of the above discussion, the learned trial Court was fully justified in acquitting the accused. There is no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged.

(Deepak Gupta) Judge.

September 9, 2011. (Sanjay Karol) (rana) Judge.