Full Judgment
Arun Kumar Goel, J.
1. For having committed the offence of culpable homicide, by having done to death his wife Smt. Kamlesh Kumari, appellant was charged under Section 302, IPC. After having been found guilty, he was sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5000/-, and in default of the payment whereof, he was sentenced to simple imprisonment for one year.
2. Charge against the appellant was that on the intervening night of 22/23-10-2001, at village Padhori, he committed the murder of his wife Smt. Kamlesh Kumari and thus committed an offence under Section 102, IPC. He pleaded not guilty to this charge and claimed trial.
3. At the time of hearing of this appeal, learned counsel for the appellant submitted that the presence of appellant at his residence in village Padhori is not at all established on the night intervening 22/23-10-2001. Similarly, Ex. PDD FIR in this case was not only outcome of deliberations but In the face of documentary and oral evidence, was ante-timed with a view to fix up the appellant. Relations between deceased and the appellant were cordial, which fact stood clearly established from the evidence on record. All these pleas were controverted by Shri Pathik, learned Additional Advocate General. According to him, deceased was living in appellant's house. He was ill tempered and would belabour the deceased after consuming alcohol every now and then. Further according to Shri Pathik appellant would return from the place of his posting i.e. Jukhala after consuming liquor in the evening every night and would beat her. According to him, there is overwhelming evidence to establish this aspect of the case. Not only this, wife of the appellant having died at his house, it is for the latter to explain what was the cause of her death and how she died. There being no reliable evidence/explanation by the appellant in this behalf, his conviction and sentence deserves to be upheld, per Shri Pathik.
4. Before dealing with the submissions urged on behalf of the parties in this case, on a principle of law, we may observe that in case presence of the appellant is established at his residence on the date and time of the incident, then unless he sufficiently and properly explains the circumstances whereunder his wife died, law will take its course and deal with the appellant. On this legal aspect, learned counsel for the appellant was one with Shri Pathik. He, however, hastened to add that there is no legally acceptable evidence for holding that the appellant was present at his residence on the date and time of incident.
5. Another fact that needs to be noted here is that the star prosecution witness in this case is P. W. 9 Abhishek, son of the appellant and the deceased. He was aged 15 years on 17-7-2002, when his statement was recorded in the Court below. What weight Is to be attached to his statement, is a matter of serious concern in this case in its peculiar background particularly in the lace of the statement of P.W. 18, the investigating officer in this case.
6. Now we will take up the facts giving rise to this appeal as per prosecution.
7. Appellant was working in DIET at Jukhala, in District Bilaspur. Prosecution alleges that on 22-10-2001, he returned to his native place at village Padhori, where he used to return daily in the evening. Under the influence of liquor and holding drat (sickle Ex. P-27) in his bag, he entered the house. Deceased is stated to have reprimanded him not to squander the money that he had drawn out of his GPF and also after having raised house building loan. Deceased along with her children was in the outer room. Both husband and wife entered the inner room, leaving the children there, (i.e. in the outer room). Then he is stated to have done to death his wife Kamlesh Kumari, whose body was lying on the double bed in the inner room. Further case of the prosecution is that the appellant came to the outer room and slept with P.W. 9. He then left at 4.45 a.m. holding out to his son, that there is lot of work to be done by him in the office.
8. With a view to establish the maltreatment, beating and belabouring of the deceased at the hands of the appellant, prosecution relies on the statement of her brother P.W. 1 Karanbir Singh, her maternal uncle P.W. 7 Joginder Singh and her mother Biasa Devi P.W. 10, as well as the disclosure statements alleged to have been made by the appellant, leading to the recovery of three pieces of Dupatta Ex. P-l. pair of scissors Ex. P-2, drat Ex. P-27. Reliance was also placed to substantiate on the statements made under Section 27 of the Evidence Act leading to recoveries of the incriminating material also on the statements of Karanbir Singh P.W. 1, Joginder Singh P.W. 7 and ASI Suhru Ram, P.W. 19, the investigating officer.
9. According to P.W. 1, his sister was married to the appellant in the year 1986. She lived happily for about one year and a son was born from this wedlock. Somewhere in the year 1989, appellant started beating his sister, when she came to her parental house with her son. Complaint was lodged with the panchayat about appellant's maltreatment vide complaint copy Ex. PD, copy of the summon of panchayat was Ex. PE and one copy of Ikrarnama. between husband and wife was Ex. PF. Matter was settled amicably when appellant is stated to have agreed not to belabour his wife, as well as to live in harmony with her. According to this witness, appellant also agreed to pay Rs. 500/- to his mother. (P.W. 14 Satya Devi for defraying the expenses by the deceased). Parties lived peacefully thereafter and they had another issue, a daughter this time. After whose birth appellant again started beating his wife, after consuming alcohol. Such facts were narrated by the deceased to P.W. 1 whenever she would visit her parental house, as well as to her mother Biasa Devi (P.W. 10). According to this witness, his sister had asked him to visit her in-laws place and he (the witness) was to actually go there within 3-4 days. However, he received message on 23-10-2001 from one Jagdish Kumar that his sister was seriously ill. P.W. 1 rang up her in-laws place, where Devrani of the deceased Lata Devi informed about the death of his sister. On this P.W. 1, accompanied by P.W. 14 and other villagers went to village Padhori and found his sister lying dead on a double bed having injuries on her throat and skin of little fingers of both hands was removed. He was satisfied that she had been murdered by the appellant.
10. Police being there, this witness made his statement Ex. PA under Section 154, Cr. P.C. FIR Ex. PDD at Police Station, Bharari was recorded on its basis. In cross-examination, he has stated that he reached the village at about 11 a.m. on 23-10-2001 when police was there and had already initiated action in the matter. This witness further stated that he left the village at about 2.30 p.m. on that day and his statement was recorded before 2.30 p.m. He, however, voluntarily further stated that FIR was lodged in the evening at Police Station, Bharari after 8 p.m. After seeing Ex. PA, the witness stated that it was written at Police Station at 8.30 p.m. on that day. After 2.30 p.m. he had gone to Bilaspur along with dead body. Since post-mortem was not to be conducted on that day therefore, the witness from Bilaspur went to Police Station, Bharari to lodge the report and Ex. PA was written by MHC at Police Station. How this to be viewed will be dealt with after taking brief note of the entire evidence in this case.
11. Balwant Singh P.W. 2 is the photographer. He had taken photographs at the spot Exs. P. 3 to P. 14 and their negatives were Exs. P. 15 to P. 26. He admits having taken the photographs of the points which were shown to him by the police. According to him, no recovery was effected in his presence. He voluntarily stated that the recovery was already made by the police. The Dupatta was lying in the heap of maize where the police was already sitting. Appellant was called near the heap of maize and witness was asked to take the photographs. He had no knowledge about recovery.
12. Statements of P.W. 3 HC Haresh Kumar and P.W. 17 MHC Chanchal Singh are being taken up together. Former was posted as MC at Police Station, Bharari. On 23-10-2001, at about 9.30 a.m., he recorded Rapat No. 5 (Ex. PG) of the said date on the basis of information of Smt. Kashmiri Devi, (P.W. 4) Pradhan, Gram Panchayat Gahar to the effect that Kamlesh, wife of Satish Kumar, resident of Padhori was lying on her bed without any movement and her husband left for duty to Jukhala in the morning. Witness was also told that Smt. Kamlesh had died. He had proved the copy of Daily Diary Rapat No. 5 with the original. On receipt of this information, ASI along with other officials left the police station for the spot. His cross-examination makes an interesting reading, wherein amongst other facts, he stated that telephone of P.W. 4 Kashmiri Devi was attended and received by Chanchal Singh MHC, P.W. 17. Whatever latter told the witness was reduced into writing. He also denied the suggestion that Ex. PG was written later on after arrival of the police in the police station from the spot or that the correct version given by Kashmiri Devi (P.W. 4) was not written in this report. P.W. 17 is MHC Chanchal Singh. No attempt was made by the prosecution to have asked anything from this P.W. in the context of Ex. PG. Why has to be explained by the prosecution. According to this witness, while he was posted at Police Station, Bharari, Distt. Bilaspur, on 23-10-2001 and 25-10-2001, Suhru Ram ASI P.W. 18 handed over parcels of this case duly sealed for being delivered at Forensic Science Laboratory, Junga. Witness vide Road Certificate No. 89/2001 handed over those to MHC Pritam Singh for onward delivery of those parcels at Forensic Science Laboratory, Junga. After delivery of the parcels, receipt was handed over to the witness. So long these parcels were with MHC Chanchal Singh P.W. 17, their seals were intact.
13. P.W. 7 Joginder Singh is the maternal uncle of the deceased. He has pledged his oath so far incident of 1989 is concerned and the matter having been taken to panchayat where settlement was arrived at. He also supported P.W. 1 regarding appellant having again started administering beatings to the deceased after consuming alcohol. On 23-10-2001, he was informed by Pinku (Bhanja of the witness), regarding death of Kamlesh. Witness reached the spot where many people had gathered. In his cross examination, amongst other facts he stated that the accused and the deceased had amicably settled the matter and thereafter they started to reside happily. When the witness had gone to village Padhori in May 2001, for inviting the deceased for Yagya. She did not make any type of complaint to the witness regarding beating and harassment after February 1989. This fact was disclosed by the witness to the police during Investigation.
14. P.W. 8 is the doctor who conducted post-mortem examination on the body of the deceased and had given his post-mortem report Ex. PO. Death, according to him, was on account of asphyxia (mechanical) due to pressure over neck with a ligature. In Ex. PO, he stated that final opinion will be given after the receipt of report of chemical examiner. He finally opined vide Ex. PS, that the deceased died due to asphyxia (mechanical) due to pressure over neck with a ligature, which was suggestive of homicidal death.
15. P.W. 10 Biasa Devi is the mother of the deceased. She had also by and large supported the case as set out by the prosecution and has further reiterated the version given by her son P.W. 1, besides having referred to the complaint of her daughter to panchayat, copy Ex. PD, against the appellant, copy of summon of the panchayat Ex. PE and also to the copy of Ikrarnama Ex. PF. In cross-examination, she admitted that since 13-14 years, the couple remained happily at home till her death. There was no written complaint regarding beatings and harassment of the deceased. And the appellant used to visit her house once a month regularly. Witness did not go to her daughter's house during her lifetime. Police had recorded her statement long after the incident wherein she claims to have disclosed that the appellant was present at his house on the day of occurrence, though it was not so recorded in her statement. Similar was the position regarding appellant daily coming to his house.
16. P.W. 11 is Bansi Ram, who was Pradhan of Gram Panchayat, Gahar. He has proved Exs. PD and PF. As according to him, complaint Ex. PD was received by him from Kamlesh Kumari (since deceased) on 10-2-1989. She was called upon to appear vide Ex. PE when appellant was also present. The matter was reconciled when he (the appellant), had undertaken in writing not to give beatings to her in future and also to maintain her. This written undertaking was attested by the witness being Pradhan and he proved Ex. PF. In cross examination, amongst other things, this witness admitted that the matter was amicably settled between the parties and thereafter Kamlesh Kumari agreed to live with her husband peacefully. No complaint of harassment or maltreatment was received after this incident. There was also no complaint of consuming liquor by the appellant.
17. P.W. 18 Suhru Ram ASI, is the Investigating Officer in this case. According to this witness on 23-10-2001, he was posted at Police Station, Bharari. At about 9-30 a.m. Kashmiri Devi, P.W. 4, Pradhan of the Gram Panchayat, Gahar informed on telephone that Kamlesh Kumari was lying in her room and it appeared that she had died and her husband had left for Jukhala in the morning. This resulted in recording of Rapat No. 5 of 23-10-2001 at the Police Station. He along with other police officials left for the spot. He found that the deceased was lying dead on a double bed in the room. He got the dead body photographed. Witness also inspected the dead body and observed injuries on her neck and fingers of both hands. A small piece of scissor was lying on the side of the dead body which was taken into possession. Drat (Ex. P-27) was also recovered beneath the pillow from another room, beside two underwears lying under the stairs. He prepared inquest reports Exs. PH and PK and sent the dead body for post-mortem to District Hospital, at Bilaspur.
18. This witness also recorded statement under Section 154, Cr. P.C. Ex. PA and sent to Police Station for registration of case. He effected recoveries at the spot and prepared memos in that behalf. He also prepared spot map Ex. PCC at the spot. Further according to this witness, appellant made disclosure statements in the presence of witnesses regarding his (appellant) having concealed one red dupatta having three pieces in the heap of maize near his house and also regarding his having concealed a pair of scissor in the upper portion of wooden almirah in his house which he could get recovered. After recording these statements in the presence of P.Ws. Karanbir and Ramesh, recoveries of these were effected in the presence of P.W. 1 Karanbir and P.W. 5 Ramesh Chand. Recoveries were also got photographed. According to this witness, he recorded the statement of Kashmiri Devi P.W. 4, Ex. PH, including portions A to A and B to B. He also stated that statement of Abhishek P.W. 9 Ex. PV was recorded by him, and of Satya Devi P.W. 14 vide Ex. PZ. He has gone on record to state that during investigation'it was revealed regarding appellant having visited home on 22-10-2001 at 8 p.m. and having picked up a quarrel with his wife in the outer room when deceased along with P.W. 9 were watching television. Appellant along with deceased went in the inner room and started quarrelling with each other, while P.W. 9 remained out. Thereafter appellant is stated to have committed the murder of the deceased with dupatta. Relevant portion of his examination-in-chief is extracted hereinbe-low along with his cross-examination on this aspect.
'xxx xxx As per my verification, accused used to come to his house daily from his duty place i.e. Jukhala. No room/quarter was taken by the accused on rent basis xxx xxx'
In his cross-examination, on this aspect what he has stated is as under :
'xxx xxx I did not collect the evidence with regard to coming and going from house to Jukhala daily. On the day of occurrence, I did not collect the evidence regarding leaving of the house at 4.45 a.m. of accused Satish Kumar. It is correct that there is no iota of evidence regarding the visit of accused from Jukhala to his house daily on record, xxx xxx xxx'
19. In addition to the above witnesses, there is another set of the witnesses namely, Kashmiri Devi, Pradhan, Gram Panchayat, Gahar P.W. 4, P.W. 5 Ramesh Chand, P.W. 6 Duni Chand, P.W. 9 Abhishek Thakur and P.W. 14 Satya Devi. All these witnesses were examined by the prosecution and when they did not support its case, they were declared hostile and with the leave of the Court were cross-examined at length by the Public Prosecutor.
20. P.W. 4 Kashmiri Devi, Pradhan stated that on 23-10-2001 at about 8 a.m. she received a telephone message from Sunil Kumar son of Narain Singh (brother of the appellant), that his Bhabi was lying on bed without any movement and requested the witness to visit his house. She went to the house of Sunil Kumar and saw that the deceased was lying unconscious in the bedroom of the appellant and found that she had already died. On enquiry from P.W. 9 Abhishek son of the appellant, she learnt that he (appellant) was not in the house during previous night and had not come from his place of duty i.e. Jukhala. She admitted the contents of Ext. PG, the DD Report No. 5 dated 23-10-2001 of Police Station Bharari, except the portion that Satish Kumar had left for duty in the morning. She admitted that she had informed the police regarding the incident after having enquired at the spot.
21. With a view to discredit this witness, it was suggested to her by the prosecutor that during her tenure as President, mother-in-law of the deceased had requested the witness to visit her house as she, (the deceased) had consumed some substance. She is a signatory to inquest reports Exts. PJ and PK. Darat was found lying near the cot. She has spoken about recoveries of Darat. underwear, quilt cover, broken pieces of scissor and skin pieces in her presence. According to this witness, police had completed the proceedings by 2 p.m. on that date.
22. She reiterated her stand in cross-examination on behalf of the appellant regarding her having told the police that dead body of Kamlesh Kumari wife of the appellant was lying on the bed. On her arrival at the spot many persons had gathered there. No complaint regarding beating of the deceased was made to this witness. On inquiry by police, every member of the family of appellant had informed that appellant had not come to the house from duty on the previous night.
23. P.W. 5 is Ramesh Chand. He is the Vice-President of Gram Panchayat Gahar. He was associated by the police on 25-10-2001 when appellant was in custody. He denied that any disclosure was made by the appellant to the police in his presence, but police party was led by the appellant to a stack of maize and he got recovered pieces of Dupatta (Ext. P. 1). On cross-examination by the prosecutor, he admits being signatory to Exts. PB and PC. He was a matriculate. Why he signed these documents without going through the contents thereof, no explanation could be given by him. He admitted that Dupatta and scissor were recovered at the instance of the appellant and thereafter his statement was recorded by the police.
24. P.W. 6 is Duni Chand. He joined investigation of 28-10-2001 along with Shankar Dass. He is witness to recovery of Banyan. Ext. P-3, though he stated in cross-examination by the prosecutor that he could not say whether it is the same or not. In cross-examination on behalf of the appellant the witness admitted that nothing was recovered during search of the house of the appellant in his presence.
25. P.W. 9 is Abhishek. He stated that on the fateful day i.e. on 22-10-2001 at about 7.30 p.m. he, his mother and his sister took meals together and then he started studying. His sister went to her grandmother for sleeping purpose and his father did not come home on that night. In the morning he found his mother lying dead on a double bed in a separate room. He denied all the suggestions of prosecution, including having stated Portions A to A to F to F of his statement under Section 161, Cr. P.C. Ext. PU.
26. In cross-examination on behalf of the defence, he stated that he made similar statement to the police and had specifically told that his father had not visited house on the date of incident. The witness admitted, that he was produced by the police before ACJM, Ghumarwin as well as Judicial Magistrate, Bilaspur for making statement in this case involving the appellant. And that the police had pressurized him to make statement in accordance with their guidelines which he refused. When he entered the room, articles were lying scattered and later on he came to know that Rs. 5000/- kept in an almirah were also missing. When door of the room was opened, he saw his mother lying dead on the cot. Per this witness, 4 days prior to the incident, his mother had attempted suicide. Further according to him, ASI Suhru Ram was pressurizing him against the appellant. The witness was also given beatings by the police when he was produced before Judicial Magistrate, Bilaspur,
27. P.W. 14 is Smt. Satya Devi mother of the appellant and mother-in-law of deceased. While admitting the marriage of the appellant with the deceased, she stated that he (appellant) was working at Jukhala in Education Department. Her son had never given beatings to Kamlesh Kumari after consuming liquor.
28. In cross-examination by the prosecutor she feigned ignorance as to how her daughter-in-law died. Neither she nor her son Satish Kumar had murdered her. When confronted with her statement under Section 161, Cr. P.C. Ext. PZ she denied having made portions specifically referred to by the prosecutor. In cross-examination on behalf of the appellant, she stated that police during investigation had been informed that appellant did not visit or come home on 22-10-2001, and he used to come on holidays. She also stated that deceased tried to commit suicide by hanging herself in the hook of ceiling fan four days prior to the date of occurrence. Accused did not consume liquor and had not beaten or harassed the deceased.
29. In order to bring home guilt against the appellant, first and foremost duty of the prosecution was, to have proved beyond reasonable shadow of doubt that appellant was in fact present at his residence on the fateful day and time. If this was established, onus will immediately shift upon the appellant to explain as to how and under what circumstances his wife died at his house, as observed earlier.
30. Admittedly in this case, there is no direct evidence to suggest that the appellant was at his place of residence on the date and time of the incident, i.e. 22-10-2001 at about 7/8 p.m. or at any point of time thereafter. Reliance was placed by Shri Pathik to substantiate this facet of the case on Ext. PG, statement of P.W. 4 Kashmiri Devi, Pradhan of Gram Panchayat, Gahar, as well as on the statements of P.W. 3 HC Naresh Kumar and P.W. 17 MHC Chanchal Singh besides P.W. 18 Suhru Ram, I.O.
31. So far P.W. 4 is concerned, she has categorically stated while admitting the contents of Ext. PG, except her having informed the police that the appellant was at his residence on the date of incident. Son of the appellant P.W. 9 Abhishek was declared hostile. He did not support the prosecution case on any aspect. Similar is the stand of his mother P.W. 14 Smt. Satya Devi.
32. Statement of P.W. 18 ASI Suhru Ram, I.O. makes an interesting reading. He has stated that P.W. 9 Abhishek was produced before ACJM, Bilaspur and Judicial Magistrate, Bilaspur for getting his statement recorded under Section 164 Cr. P.C. but it could not be recorded, because the witness did not support the prosecution case. Police tried to get his statement recorded under Section 164, Cr. P.C. on 23-10-2001 itself. But this witness (P.W. 9), did not come forth to support the prosecution case.
33. On the other hand for the reasons to be recorded hereinafter, emphasis laid on Ext. PG, and reliance placed on it by Shri Pathik, is wholly misconceived and ill-founded. Reason being that P.W. 3 HC Naresh Kumar has stated that Ext. PG Daily Diary No. 5 was recorded by him on 23-10-2001 on the basis of telephonic information of Smt. Kashmiri Devi, Pradhan, Gram Panchayat, Gahar. In cross-examination he has categorically stated that telephone of Kashmiri Devi was attended upon by MHC Chanchal Singh. Whatever Chanchal Singh stated, it was reduced into writing. In the circumstances of this case, it was incumbent upon the prosecution to have asked P.W. 17 MHC Chanchal Singh regarding Ext. PG to prove its contents. No attempt was made in that behalf, and Shri Pathik could not explain this vital aspect of the case.
34. Merely because a witness is declared hostile, cannot be made a ground to exclude his entire statement from consideration by the Court. The only care and caution while examining such statement is that, his evidence has to be scanned with extra care and caution with a view to separate the chaff from the grain. Why would P.W. 9 Abhishek and for that purpose his grand-rnother P.W. 14 Smt. Satya Devi, not like the real culprit to be brought to book, particularly when mother of the former and daughter-in-law of the latter is dead. It is not understood as to why they would like to screen the real culprit from being brought to book.
35. Another plea urged by Shri Pathik with a view to accept the presence of the appellant at his residence on 23-10-2001 and being responsible for the commission of offence was, that it was for him to have explained where he was on the fateful day and time if not at his residence. We feel that this plea cannot, be accepted. In the instant case, it was incumbent upon the I.O. to have investigated into this aspect whether he was residing at his place of posting i.e. Jukhala, and if so, whether or not he was there on the fateful day and time. What he has stated, has been extracted in preceding paragraphs of this judgment. Mr. Pathik was not in a position to advance his this submission further.
36. Thus on appreciation of evidence, we are satisfied that prosecution has miserably failed to prove the presence of the appellant on the date and time at his residence where on the next day i.e. 23-1-2001 Kamlesh Kumari was found dead. Further plea of Shri Pathik that it was for the appellant to have explained where he was on the date and time of the incident also merits rejection.
37. Now coming to the investigation in this case. When a reference is made to the statement of P.W. 1 Karanvir Singh, brother of the deceased, he has categorically stated that when he reached the village at about 11 a.m. on 23-10-2001, police was already at the spot and had started proceedings. He left the village at about 2.30 p.m. on that day. His statement having been recorded before 2.30 p.m. on that day is another admitted fact by him, though he voluntarily stated that he had lodged FIR in the evening at Police Station, Bharari after 8 p.m.
38. In this behalf when a reference is made to Ext. PA statement of this witness under Section 154 Cr. P.C. it was recorded at 4 p.m. Time has been noted by P.W. 18 under his signatures in Ex. PA. and it purports to have been recorded at Camp Padhori
(Emphasis supplied)
39. Again when a reference is made to the statement of this witness, i.e. I.O. P.W. 18, according to this witness, statement of Karanvir Singh under Section 154, Cr. P.C. was recorded and the same was sent to Police Station for registration of the case. This witness in cross-examination admitted that he reached village Pandori at 10.30 a.m. and remained there up to 8 p.m. on 23-10-2001 and had completed investigation on that day upto 8 p.m. Inquest reports were prepared upto 4 p.m. on that day and dead body was sent to Zonal Hospital at 12 o'clock.
40. In case dead body had been sent at 12 o'clock as stated by P.W. 18 on 23-10-2001 to Zonal Hospital, Bilaspur, statement of Karanvir Singh P.W. 1 having left the village at 2.30 p.m. is not correct. Because he accompanied the dead body. Again giving some allowance here and there, from the statement of Karanvir Singh it is clear that he left the village at 2.30 p.m. whereas according to P.W. 18 dead body was sent to Zonal Hospital at 12 o'clock and Karanvir and his relatives went along with dead body to Bilaspur. P.W. 18 further stated that Karanvir Singh along with others returned to village at 7 p.m. If this is factually correct, then statements of both these witnesses are belied from Ext. PA, under Section 154, Cr. P.C.
41. Therefore, submission made on behalf of the appellant that the FIR was ante-timed as well as was the result of deliberations aimed at getting the appellant fixed up in this case, is not without substance. On the basis of Ext. PA recorded at 4 p.m. at Camp Pandori, FIR Ext. PDD was registered at Police Station, Bharari at 5.25 p.m. In view of these documents, stand of P.W. 1 that he went to Police Station, Bharari after having come to know that post-mortem is not going to be conducted on 23-10-2001 and then lodged report at Police Station at 8 p.m. is contrary to record, as well as proved facts. Regarding Ext. PA, P.W. 1 states that it was written by MHC at Police Station, Bharari and he again joined the investigation at Police Station, Bharari on 25-10-2001.
42. No satisfactory explanation could be rendered by Shri Pathik to explain these material aspects which in our view, knocks the bottom of the case of prosecution.
43. With a view to further support the case of prosecution Shri Pathik submitted that there was no reason for P.W. 1, P.W. 7 and P.W. 10 to falsely implicate the appellant. Per him, keeping in view the past behaviour of the appellant towards the deceased, and at the same time appellant having not explained as to how the incident took place, judgment of the trial Court calls for no interference.
44. We are not impressed by this submission. Reason being, that regarding present incident of 22-10-2001, nothing has been stated by any of these witnesses. Their whole thrust is on the maltreatment of the deceased by the appellant firstly in the year 1989 when compromise Ext. PF arrived at between them, and thereafter P.W. 1 and P.W. 10 have stated that after the birth of daughter, deceased used to complain regarding her being maltreated and beaten up by the appellant after consuming liquor.
45. In this behalf when reference is made to the cross-examination of these three witnesses, P.W. 1 has stated that after 1989 there was no complaint of beatings by the deceased. P.W. 7 has gone on record to state that in the year 2001 he had visited village Padhori for inviting the deceased in the Yagya to be celebrated at his (P.E. 7's), house. He further admitted the suggestion on behalf of the appellant that deceased did not make any type of complaint to the witness regarding beatings and harassment after February, 1989, and the witness had further disclosed this fact to the police.
46. P.W. 10 mother of deceased has also stated in her cross-examination that since 13-14 years, the couple remained happily till her death. There was no written complaint regarding beatings or harassment. She has further stated that appellant used to visit her house once a month regularly.
47. In the face of this evidence, we feel that story of the prosecution that the appellant used to vilify and beat, as well as misbehave with the deceased after consuming alcohol, cannot at all be accepted.
48. On appreciation of evidence in this case, as also keeping in view its background, we are of the view that the prosecution has miserably failed to prove much-less connect the appellant with the commission of alleged offence for which he has been sentenced by the learned trial Court.
49. We are alive to the situation that for minor omissions here and there, otherwise proved case of the prosecution is not to be thrown out. Reason being, that with the passage of time some omissions are bound to creep in which are natural, otherwise statements become parrot like and at times it becomes difficult to accept those in a given case. However, on the basis of re-examination of the entire evidence, we are of the considered view that findings recorded by the trial Court on its basis are not sustainable. We have no hesitation in coming to the conclusion that prosecution has miserably failed to bring home the guilt against the appellant. In fact, the distance between 'might have' and 'must have' has not at all been covered by the prosecution as is clear from its evidence, briefly discussed hereinabove in this case.
50. For the view that we have taken of the evidence in this case hereinabove in this judgment, in our considered view, disclosure statements of the appellant and consequential recoveries pursuant thereto, lose complete significance.
51. No other point is urged.
52. In view of the aforesaid discussion, this appeal deserves to be allowed. Ordered accordingly. As a result of it, appellant is acquitted of the offence under Section 302, I.P.C., while setting aside the judgment of the learned Sessions Judge, Bilaspur dated 1st January, 2003 in Sessions trial No. 10 of 2002, titled State of H. P. v. Satish Kumar. We further direct that unless required in any other case, he be set at liberty forthwith.