R.B. Misra, J.@mdashThe present criminal appeal has come-up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 24.2.1997, passed by learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Trial No. 37 of 1996, whereby accused-respondents have been acquitted for the offences, under Sections 302, 201 read with Section 34 of the Indian Penal Code, in reference to FIR No. 60/1996.
2. The prosecution case is that on 19.5.1996, at about 10.15 A.M. one Joginder told the brother of deceased Ashok Kumar that his dead body was lying in Kotla Khud. The matter was reported to the police and it was suspected that since deceased Ashok Kumar was working with accused-respondent Raghubir Singh in the I&PH department at village Jandor and on 18.5.1996, in the evening, deceased was found in the company of accused-respondent Raghubir Singh while working in water tank, adjoining to the house of accused-respondent Raghubir Singh and they were under the influence of liquor. According to the prosecution case, Ashok Kumar deceased developed illicit relations with the sister of accused-respondents and resultantly she became pregnant and such thing was not digested by the accused-respondents, therefore, they planned to kill Ashok Kumar and given him liquor by missing poison and when Ashok Kumar died, his dead body was removed and placed in Kotla Khud. After investigation, accused-respondent were charged for the offences, under Sections 302/201/34 IPC and the case was committed to the Sessions Court.
3. In order to prove its case, the prosecution examined as many as nineteen witnesses, whereas the accused- respondents through their statements u/s 313 Cr.P.C. denied the prosecution case.
4. PW-1 Dr. Sunita examined Darshna Devi, sister of the accused-respondents, aged about 18 years and made following observations:
Before examination the girl-Darshna Devi told the doctor that she had been raped by a boy Ashok Kumar, friend of her brother who was working on daily wages in I & PH at Jandor. According to the girl the boy had raped her in August 1995 at her home when her mother had gone to take her treatment for her broken arm. In the month of September, she was again raped by the same person and she got pregnant.
According to PW-1, per abdomen examination, pregnancy was of eight months duration and baby''s head was down-ward (vertex presentation) and period of gestation (Amanorrhea) is 8 months. Per vaginal examination, perinieum was shaved and dark due to pregnancy. In her opinion the girl was pregnant and was having pregnancy of complete eight months. She issued MLC Ext.PW1/A.
5. PW-2 Dr. D.P. Swami conducted the post-mortem examination of deceased Ashok Kumar on 20.5.1996 and made following observations:
External appearance
There were five pressure abrasions as under:
(1) 1" x1/4" reddish horizontal with blood clotted underneath.
(2) 2" x 1/4" reddish, horizontal, underneath clotted blood.
(3) 4" x 1/4" reddish, horizontal, underneath clotted blood.
(4) 1/2" x 1/4" reddish, horizontal, underneath clotted blood.
(5) 1/4" x1/4" reddish, horizontal, underneath clotted blood.
Cranieum and Spinal Cord : Congested.
Thorax
Walls ribs & cartliges : NAD
Pleaurae : Congested.
Larynx and tachea : Congested.
Right & left lung : Congested and froth on
cut section.
Pericardium Heard, Large : Right side full of Dark
vessel. colored fluids.
Abdomen
Walls : NAD
Peritoneum : NAD
Mouth Larynx & Oesophagus : NAD
Stomach and its contents. : Empty, smell of alcohol &
Aluminium phosphide.
Walls congested reddish.
Large intestine & their :
contents. Full of gaseous and traces
of fecal matter.
Liver spleen and kidney : Congested
Blader : Empty, smell of alcohol.
Organs of generation : NAD
external & internal
Muscles Bones and Joints:
Perimortem injury : On both lower 1/3rd of
legs, back side, each
2" x1/2" mild reddish.
Postmortem injuries : There were two grazed
abrasions:
(1) on left arm near elbow,
outside 2" 1/2 " white
in colour.
(2) On left elbow 2"x1"
white colour.
According to PW-2 the person died of asphyxia due to alcohol/poison intoxication, under the circumstances of antemortem pressure injuries to right side of neck.
6. The statements of PW-3 Soni Kumar, PW-4 Bidhi Singh, PW-5 Naresh Kumar, PW-6 Bishan Dass, PW-7 Vijay Kumar, PW-8 Tarsem Lal, PW-9 Shankar Dass are not very material for the prosecution case.
7. PW-10 Jaswant Singh deposed that he was running a tailoring shop at village Jandaur where accused Raghubir Singh and deceased Ashok Kumar were working as fitter and helper, respectively. According to PW-10 deceased Ashok Kumar used to reside in the house of accused-respondents and there was rumor that Darshna, sister of accused-respondents became pregnant because of deceased Ashok Kumar during his life time and PW-10 saw Ashok Kumar and Raghubir Singh working near the water tank on 18.5.1996. According to him, cycle of the deceased Ashok Kumar was fond and got recovered from the cow-shed of accused-respondents and taken into possession vide memo Ext.PW3/C. In cross-examination, PW-10 has admitted that he saw Ashok Kumar and accused-respondent Raghubir Singh at 10/11 in the morning and then at 5.00 P.M. in the evening. However, he did not see deceased Ashok Kumar and accused-respondent Raghubir Singh while drinking.
8. PW-11 Satish Kumar, Photographer in the discharge of his work has taken photographs.
9. Statements of PW-12 Parkash Chand and PW-13 Ram Paul are not very material for the prosecution case.
10. PW-16 Om Parkash has stated that deceased Ashok Kumar and accused Raghubir Singh have working together and deceased Ashok Kumar used to visit the house of accused- respondents and he usually stay there. PW-16 has also stated that whenever, deceased Ashok Kumar used to get pay, he used to stay in the house of accused-respondents for about ten days and he used to have liquor at the house of accused-respondents. He further states that deceased Ashok Kumar was seen with Darshna, sister of the accused-respondents on many occasions even while sitting in the buses and Darshna became pregnant because of Ashok Kumar. On 18.5.1996, he seen deceased Ashok Kumar and accused-respondent Raghubir Singh going towards the house of accused-respondents and also noticed on 19.5.1995 dead body of Ashok Kumar in Kotla Khud. In cross- examination PW-10 stated that deceased used to stay for 15 days in the house of accused-respondents after receiving payment and the version given in the examination-in-chief was reiterated.
11. PW-17 ASI Prithvi Raj investigating the case. PW-18 Inspector Suresh Chand has also partly investigating the case. PW-19 SI Nathu Ram after completion of the investigation prepared challan and submit the same in the court.
12. Prosecution in its endevour has tried to prove that since deceased Ashok Kumar and accused-respondent Raghubir Singh were working together and usually deceased after receiving salary used to stay with accused-respondent Raghubir Singh in his family and illicit relation was developed with Darshna and Ashok Kuamr (deceased) and Darshna, the sister of the accused-respondents became pregnant because of Ashok Kumar. Such fact was not tolerated by the accusedrespondents. Therefore, the deceased was thrown away and under the influence of liquor deceased Ashok Kumar was killed and his body was found in Kotla Khud.
13. On analysis of the prosecution witnesses and material on record we notice that the deceased had sustained injuries on his person and was said to have taken liquor but none of the prosecution witnesses have seen that they took liquor together at the relevant time. All the prosecution witnesses neither on 19.5.1995 nor next day, till 26.5.1996 have ever deposed nor deposed against the accused-respondents indicating any suspicion against the accused-respondents. It also appears that since deceased was working with accused- respondent Raghubir Singh and he used to park his cycle near the house of the accused-respondents, as such, recovery of the cycle from the place of the accused-respondents is not unusual and also cannot be a fact to prove the case in favour of the prosecution. It was usual feature that accused-respondents were allowing to keep the cycle of deceased Ashok Kumar at their place. Stay of deceased in the family of accused- respondents was not surprising. In view of testimony of PW-10 deceased used to stay for several days, whereas, PW-16 has stated that deceased used to stay even for 15 days regularly. PW-3 Soni Kumar has stated that after taking payment on every month, the deceased used to stay in the house of the accused- respondents for 4-5 days. Another witness Om Parkash, who is inimical towards accused-respondents himself admitted that he is litigating with accused-respondents in courts but has stated that deceased used to live in the house of accused-respondents for 15 days. From the variation of these two statements it appears that Om Parkash is biased against the accused- respondents and his statement is exaggerated one. It seems that Om parkash in connivance with Mr. M.S. Guleria, the father-in-law of deceased, introduced witnesses Manohar Lal and Vijay Kumar, who were working as driver and mechanic under M.S. Guleria, as such, the testimony of Om parkash cannot be said to be reliable. None of the prosecution witnesses have seen that accused-respondents gave beatings to the deceased or they were taking liquor with the deceased. The circumstantial evidence are not indicting link or making chain of incidents complete whereby it could be said that prosecution has proved its case beyond reasonable doubt. Only on suspicion that deceased had usually been staying in the family of accused-respondents and was having illicit relations with Darshna, the sister of the accused-respondents and the she became pregnant because of Ashok Kumar deceased cannot be ground that accused-respondents had given beating to the deceased and after killing him thrown away his body in Kotla Khud. None of the witnesses have ever come forward to say that endeavour of accused-respondents had failed to negotiate with deceased Ashok Kumar and they ever had challenged Ashok Kumar. Accused-respondents appears to be comfortable with the stay of Ashok Kumar (deceased), as at no stage, they had objected the stay of Ashok Kumar (deceased) in their family.
14. On the analysis of the prosecution witnesses and materials on record, the prosecution cannot be said to have prove its case beyond reasonable doubt and circumstantial evidence are not inspiring confidence to hold accused- respondents guilt of offences, as alleged. In our considered view, prosecution has failed to bring home the guilt of the accused-respondents. There is no scope of any interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed.
15. Bail bonds, furnished by the accused-respondents, are hereby discharged.
