HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 262 of 2003 Decided on: 15.9.2010 Kishori Lal ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Chander Narayan Singh, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant/accused under Section 374 of the Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Sirmour District at Nahan, dated 21.5.2003, vide which the appellant was held guilty under Sections 304 and 201 of the IPC and was sentenced as under: Under Section 304 (Part IInd) Simple imprisonment for one year and a fine of Rs.5,000/-. In default of payment of fine, the accused was to undergo simple imprisonment of three months. Under Section 201 IPC Simple imprisonment for three months and a fine or Rs.1,000/-. In default of payment of fine, the accused was to undergo simple imprisonment of one month. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of the case are that on 31.10.1999, on receipt of a telephonic message at the Police Station that a dead body was lying on the road, the police officer went to the spot and recorded the statement of Satya Ram under Section 154 of the Cr.P.C., who had given the telephonic message. In his statement, he has stated that he was serving in Home Guard and today on 31.10.1999, at about 9.15 a.m., when he was going to his office, he found the dead body of a person lying on the road with injury on the forehead. The blood was oozing out from the mouth and the shirt was also stained with blood. He could not identify the said person and informed the police over telephone. Thereafter, when his statement was recorded, he stated that he has learnt the name of the said person, i.e. of the deceased, as Ghanshyam resident of Nahan. On this report, a case was registered and after investigation, the challan was filed under the above Sections before the court of learned Chief Judicial Magistrate, Nahan who committed the case to the court of the learned Sessions Judge. Thereafter, the case was assigned to the learned trial Court, who tried the appellant leading to his conviction and sentence as detailed above. 3. I have heard Mr.Chander Narayan Singh, Advocate, for the appellant and Mr.J.S. Guleria, learned Assistant Advocate General, for the State. 4. The submissions made by the learned counsel for the appellant were that the case of the prosecution rests upon circumstantial evidence and it has to be considered as - 3 - to whether the circumstantial evidence, so led by the prosecution, proves the case of the prosecution or not. 5. The first circumstance taken by the learned trial Court was in regard to the last seen evidence. PW-3 Lachhi Ram has stated that on the morning of October 30, 1999, Ghanshyam, who resided in the same Mohalla, came to his shop and told him that he had stomach ache and that he wanted to take medicine from Doctor. He then left for taking medicine. Around 11.00 a.m. on the same day, the accused Kishori Lal, whom he knew well, and the deceased were seen near his shop, when they were drunk. He further stated that just as deceased Ghanshyam was about to proceed towards his house, the accused gave him Rs.200/- and asked that he should make arrangements for the evening and also bring liquor and meat to his house. Thereafter, the two left for their respective houses. He further stated that around 4-4.30 p.m. when he was bringing milk from a dairy, he saw the deceased Ghanshyam going towards Vikram Castle. Upon his asking ‘Chacha’ are you going to the house of the accused, the deceased Ghanshyam replied in the affirmative and said ‘yes I have to go’. After saying so, the deceased left for the house of the accused. Ghanshyam was carrying a bag at that time and he identified the bag Ext.P-6 as the same which was being carried by the deceased when he was going towards the house of the accused. 6. The learned trial Court had referred to the testimony of PW-3 Lachhi Ram and had also given the details of his statement, but in final concluding paras, there was no discussion that this part of the evidence is important piece - 4 - of evidence and is also being relied upon by the court in coming to the decision holding the appellant guilty. Thus, the learned trial Court had not concluded that this was also being taken as material evidence to hold the appellant guilty. 7. There was no discussion on this statement and in regard to the infirmities, if any, in the statement of PW- 3 Lachhi Ram. To my mind, his statement does not inspire confidence for the reasons given below. The first reason is that PW-3 Lachhi Ram had seen the deceased alongwith the accused around 11.00 a.m. on 30.10.1999, while the deceased is alleged to have died on the night intervening 30/31.10.1999 or in the morning since the postmortem report also shows the probable time of death as the night intervening October 30/31, 1999. Thus, there was a difference of about 12 hours when the deceased was last seen with the accused and the deceased died resultantly. The second reason is that the deceased was again noticed by this witness going towards the house of the accused. Thus, this witness has introduced his presence on both these occasions. Thereafter, the presence is being confirmed again when this witness stated that he asked from the deceased who admits that he was leaving for the house of the accused. There was no occasion for this witness to stop the deceased, ask him as to where he was going and confirming whether he was leaving for the house of the accused. Thereafter, this witness has also introduced this fact that he had identified the bag Ext.P-6, which was being carried by the deceased to the house of the accused. - 5 - 8. There is nothing to suggest that there was any purpose of the deceased of having taken the bag to the house of the accused when he was going to enjoy food and drinks at the house of the accused. But recovery of the bag has been tried to be linked with the accused to have been made from the house of the accused, which recovery was effected in his absence and it has also been used by the prosecution as another circumstance to prove the bag lying in the house of the accused. There was no occasion for the accused to retain these articles and there is also doubt that this bag was brought by the deceased to the house of the accused when he was visiting the house of the accused in the evening for drinks etc. 9. Apart from this, it is also in evidence that both the deceased and the accused were drunk in the morning at 11.00 a.m., when they were seen by PW-3 Lachhi Ram. Thereafter, they must have taken liquor in the evening and, therefore, it has to be considered as to whether there was a possibility that the deceased suffered the injuries as a fall. The fact that PW-3 Lachhi Ram has introduced his presence on both the occasions, confirmed from the deceased the place to which he was going as well as identifying the bag, makes the testimony of this witness doubtful. 10. The other part of the evidence relied upon by the prosecution is the recovery of blood stained earth from the courtyard of the accused as well as from the field, from where a torch was also recovered. But the fact remains that the body of the deceased has not been found either in the courtyard or in the field but it was found on the road, as - 6 - has come up in the testimony of the complainant PW-1 Satya Ram. These recoveries of blood stained earth were effected by the Investigating Officer PW-11 SHO Kishan Singh vide recovery memos Ext.PW-2/A and Ext.PW-2/B and the witnesses to the said recovery memos are Naresh Kumar, Gian Chand and Dinesh Kumar. The said Naresh Kumar and Dinesh Kumar were examined as PW-2 and PW-4, respectively, but Gian Chand was not examined by the prosecution. 11. PW-4 Dinesh Kumar admitted that the deceased was his uncle, though in cross examination he admitted that the deceased was not his real uncle and he was the cousin of his father. His house adjoins the house of deceased Ghanshyam. The prosecution ought to have associated some independent witnesses at the time of recovery and this witness is a relative of the deceased and cannot be said to be an independent and respectable witness of the area. According to his statement, the recovery of the blood stained earth was made on 31.10.1999 and by that time, the accused had not been associated in the investigation, as has come in the testimony of the Investigating Officer PW-11 Kishan Singh. The prosecution has also proved the recovery of the bag vide recovery memo Ext.PW-2/C and the witnesses to the same are Dinesh Kumar, PW-4 and Naresh Kumar, who has been examined as PW-2. A perusal of the statement of PW-2 Naresh Kumar shows that the police recovered from the courtyard some blood stained earth but he has is not a witness to the said recovery memo. He also stated that he was a witness to the recovery of a torch Ext.P-5, bag Ext.P-6, muffler Ext.P-7, cap Ext.P-8 and spectacle Ext.P-9, which were recovered by - 7 - the Investigating Officer from the house of the accused. He stated that these were identified by the deceased Ghanshyam’s nephew Dinesh to be belonging to his uncle Ghanshyam. The said Dinesh was not a close relative of the deceased, as discussed above, and none from the family of the deceased has been examined to show that these articles including bag Ext.P-6, so recovered from the house of the accused, belonged to the deceased. No identification parade of these articles was got conducted before a Magistrate and simply on the statement of PW-4 Dinesh Kumar, it was believed that these articles belonged to the deceased. 12. Apart from the above, the prosecution has also relied upon the report of Forensic Science Ext.PW-11/D and Ext.PW-11/E. A perusal of these reports shows that the blood was found on the shirt, underwear, banyan and bed sheet of the deceased, which was a human blood of Group “B”. In regard to the blood found on the socks, it was observed that it was not sufficient for test. It was also opined in the said report Ext.PW-11/D that no blood was found on the soil taken form the courtyard and the banyan and paijama of the appellant. Thus, it clearly leads to the inference that no occurrence had taken place in the courtyard and no blood was found in the soil collected from the courtyard. It has been observed by the learned trial Court that this blood Group tallied with the blood Group of the appellant. A perusal of this report and other evidence shows that no opinion was given by the Expert or by the doctor who conducted the postmortem to show as to what was the blood group of the appellant. Therefore, it cannot be said that the blood Group - 8 - of the appellant tallied with the blood found on some of the articles, as mentioned above. Therefore, this part of the evidence cannot be said to be sufficient to link the accused with the commission of the crime. 13. The postmortem was conducted by Dr.A.Chaturvedi, who has been examined as PW-10 and proved the postmortem report Ext.PW-10/A in his evidence. In his statement, this witness has stated as under: “There was a C.L.W. (a contused lacerated wound) present above the lateral part of the left eye brown which was semi-circular in shape. The colour of this wound was red and its size was 4 cm x 1/2 Cm. The margins were also uneven. There was no dirt, mud or grass present over the wound. Just above the right iliac spine there was an abrasion; its colour was dark brown and its appearance was parchment type. Its shape was triangular. Size of this wound was 6 cm x 3 cm. There was no bleeding or injection of the vessel present in the underlying tissues. Just below the right last rib, there was an abrasion which was dark brown in colour and of parchment like appearance. Its shape was oval, and size was 6 cm x 4 cm. There was no bleeding or injection of the vessels present in the underlying tissues. Same type of the abrasion the size of which was 30 cm x 20 cm, was found on t he right thigh. On the right knee there was peeling of the superficial skin of the size of 3 x 2.5 cm. No bleeding was present. On left knee there was a peeling of skin observed; its colour was brownish and shape square. Its size was 5 cm x 2 cm. No bleeding was present on right side of the abdomen. Their colour was dark brown and there was no bleeding present on the underlying tissue. There was a parchment type appearance of the abrasions, which were of the size of 2 Mm x 3 Mm. On right elbow there was an abrasion, the size of which was 4 x 2 cm. On right neck there were five linear abrasions. Their size varied from 2 cm. Their colour was dark brown parchment type. There was no bleeding. On examination of the skull, a depression was found present below a contused lacerated would which was present on left side of the temporal region. No fracture of the skull was observed. Spine and vertebrae were normal. On dissection of the skull, gushes of blood came out. The membrane was intact. Brain was congested. On dissection of heart, pericardium was found normal. Colour of the - 9 - heart was pale and both the chambers of heart were empty. Abdominal walls were normal and umbligus was full of grass and dirt. Colour of the stomach was pale. It was congested and its contents were yellow-greenish seme-digested fluid. In my opinion, the deceased had died due to head injury with sub-dural haemorhage (extra-dural haemorrhage) with shock............” The Medical Officer in his cross examination has admitted that the injury in question was possible by a fall. 14. The deceased had suffered only one injury on the forehead which proved to be fatal leading to his death. The deceased, as has come up in the testimony of PW-3 Lachhi Ram, was already drunk since 11.00 a.m. in the morning of 30.10.1999 and he had been invited by the accused to his house for drinks in the evening. This clearly suggests that he must have taken drinks in the evening also, despite the fact that he was already drunk since morning. Therefore, the possibility that the accused suffered injuries by a fall cannot be ruled out as he was drunk since morning. 15. There is also no evidence on the record to show regarding the place where the occurrence took place, as to whether it was in the courtyard or at some other place. Since no blood from the soil taken from the courtyard was found, as shall be discussed below, therefore, there is no other evidence as to the place where the occurrence had taken place. The deceased had been invited by the accused to enjoy meat and drinks and there is nothing on the record to show as to what was the cause for the accused to commit this murder of the deceased who had been invited by him for enjoyment. Therefore, the possibility is again there that the deceased - 10 - may have suffered injury as a result of fall since he was heavily drunk. 16. Apart from the above, it has also come up that the police also recorded a disclosure statement of the accused on 3.11.1999 and at his instance recovered one paijama, banyan and bed sheet having blood stained marks. There is nothing in the report of the expert that the blood was found on these articles. Moreover, this statement was recorded on 3.11.1999 i.e. after 3 days of the commission of the offence. These articles were recovered vide recovery memo Ext.PW-4/B as per the testimony of PW-11 SHO Kishan Singh on 5.11.1999. The disclosure statement was made on 3.11.1999 and recovery was effect on 5.11.1999 and according to the statement of the Investigating Officer, the recoveries of these articles were made form the house of the accused. The recovery of these articles was effected after five days of the death of the deceased and after 3 days of the recording of the disclosure statement of the accused and thus this part of the prosecution story is also not reliable particularly when the search of the house of the accused had already been made on 31.10.1999 by the Investigating Officer, who had already recovered some of the articles such as spectacles etc., as mentioned above. There is nothing that these articles were lying locked in the house and key was provided by the accused and, therefore, recovery of these articles after a lapse of time from an open place of the house of the accused cannot be linked with the accused beyond any doubt. - 11 - 17. Apart from the above, it has not been clarified by the prosecution from the Investigating Officer as to how he proceeded to search the house of the accused on 31.10.1999 itself when the statement of the material witness PW-3 Lachhi Ram in regard to the last seen Ext.PW-3/A had been recorded on 1.11.1999. The Investigating Officer proceeded to the spot, made recoveries on 31.10.1999 at 4.30 p.m., as has come up in the evidence and till that time, there was no evidence pinpointing to the fact that the accused was involved in the commission of this crime. Once there is nothing to suggest in this regard, the Investigating Officer had failed to substantiate as to how he expressed doubt upon the accused against whom some evidence had only come on the next date i.e. on 1.11.1999, when the statement of PW-3 Lachhi Ram was recorded by the Police Officer and till that time, there was no evidence. 18. The mere fact that since the accused was missing from the house on the night of 31.10.1999, as has come up in the testimony of PW-11 SHO Kishan Singh, who arrested him on 1.11.1999, therefore, till that time no evidence had been recorded as against the accused. The accused had taken the defence that he had gone to attend the betrothal ceremony of his daughter in Village Kishankot in Paonta Sahib and also examined one Sadhu Ram in this regard. The said evidence was not relied upon by the learned trial Court and accordingly it can be concluded that the accused had failed to prove his alibi. It is true that the accused did not examine any other person from the said village to prove that he had stayed in the said Village on the night of - 12 - occurrence, but in view of the evidence led by the prosecution, it cannot be ignored and his plea has not to be considered and this evidence is not required to be proved beyond reasonable doubt. 19. Apart from the above, the prosecution has proved the recovery of stool and glass, which cannot be linked with the accused in any manner or to prove the charge as against the appellant. 20. In view of the above discussion, it cannot be said that the circumstantial evidence led by the prosecution was sufficient to prove the case or to prove the necessary link of chain of circumstances leading to only one conclusion that this offence was committed by the appellant. The circumstances are not sufficient to lead to this conclusion that the appellant was guilty and, therefore, the findings of the learned trial Court holding the appellant guilty and thus, convicting and sentencing him are liable to be set aside. 21. In view of the above discussion, the appeal filed by the appellant is accepted and the conviction and sentence imposed upon him by the learned trial Court is set aside. The accused, if in custody, shall be released forthwith. September 15, 2010. (V.K. Ahuja), (TILAK) Judge