IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 482 of 1996 Date of Decision : April 06, 2010 State of H.P. …Appellant. Versus: Shalu Ram & Ors. …Respondents. Coram: 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. For the respondents : Mr. B. C. Verma, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 6.4.1996 delivered by the learned Addl. Sessions Judge, Shimla, H. P., in Sessions Trial No. 46-S/7 of 1993, whereby the accused have been acquitted of having committed offences punishable under Sections 120-B, 302 & 201 of the Indian Penal Code. The prosecution case in brief is that on 8.1.1992 deceased Tarjung left his house in village Machhoti, Tehsil Rohru to visit Rohru. The deceased was employed as a teacher. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 He had come home during winter vacations and went to Rohru for making some purchases. Tarjung did not return home at night and next day i.e. 9.1.1992 his mother came to the house of Shyam Lal (PW-1), brother of Tarjung and informed him that the deceased had not returned from Rohru. Tarjung’s wife PW-2 Tiuni Devi went to Rohru on the morning of 9.1.1992 to search for her husband. She met PW-5 Chetu who told her that the deceased had left certain books with him but did not come back to collect the same. She thereafter went to the Police Station, since she thought that her husband may have taken liquor and had been apprehended by the police. She did not find her husband in the Police Station and returned home and told her mother-in-law about what had happened. Her mother-in-law in turn informed PW-1 Shyam Lal and then went to Rohru and searched for the deceased. It became dark and they had abandoned the search for Tarjung. Next day, on 10.1.1992 at about 8.00 a.m., Shyam Lal (PW-1) and his elder brother again started searching for their brother Tarjung. When they reached near Machhoti Nallah they found one body lying in the nallah and when they went closer they could identify the body to be that of their brother Tarjung. Thereafter Shyam Lal lodged a report Ext.PA with the police in which he stated that he suspected that the accused with whom he and his brother had long standing litigation had murdered the deceased. It would be pertinent to 3 mention that when the spot was inspected, currency notes of Rs.3702/- were recovered. One watch with its glass cover lying separately was found at a distance of 12 feet from the body. A cap was lying below the road at a considerable distance from the body. In cross-examination, the witness admitted that at the place where the body was found there was a steep slope (dhank). The distance from the road to the place where the body was found was about 97-98 feet. According to PW-1 Shyam Lal on 17.1.1992 i.e. one week after the body was discovered, he came across a rope measuring about 7 feet near the road on the opposite side. The rope was blood stained and there were three wooden pieces of the rope which were also blood stained. The report of the Chemical Analyst is that no blood was found on this rope. It is, therefore, obvious that the brother was trying to falsely implicate the accused. PW-5 Chetu is the person last seen with the deceased. According to this witness on 8.1.1992, the deceased came to him with a bottle of liquor. Both of them finished the bottle of liquor. As per the witness, he only took two pegs and the deceased consumed the rest of the liquor. Thereafter the deceased gave him Rs.100/- to purchase another bottle of liquor. The witness then went to drop his belongings to his house. The deceased did not come back and PW-5 Chetu 4 presumed that the deceased had caught the bus for his home and therefore, he (Chetu) proceeded to his own home. PW-8 Puran Chand stated that he met the deceased at about 7.30 p.m. and found that the deceased was totally drunk at that time and was going towards his house. PW-14 Dr. Ravinder Mokta, carried out the post mortem on the body of the deceased. He found a number of injuries on the person of the deceased and according to his opinion, the deceased died due to haemorrahage with shock and hypothermia. He also found that the deceased had consumed alcohol. In cross-examination he admitted that these injuries could be caused if a person falls from the height of about 30-40 feet on a rough surface. He also explained that hypothermia means that a person is exposed to the temperature of below zero degree. The death is caused due to loss of heat in the body. The other evidence had been led is that there were some disputes between the parties and that some tape recording had been done by PW-1. According to PW-1 Shyam Lal, the accused persons had been threatening him and his brother and he had recorded the threats of the accused on an audio cassette which he handed over to the police vide memo Ext.PE. PW-2 Tiuni Devi only talks about the search. She revealed that the deceased used to take liquor but according to her he used to take very little liquor. Both these witnesses however admit that 5 the deceased was mentally disturbed and had undergone psychiatric treatment at Dharampur. Further with regard to conversation of the audio cassette, the report of the Forensic Science Laboratory Ext.PZ-3, is that there are number of conversations on the day and the recording is of poor quality. Though the sample voice of the accused was taken during the course of the investigation, this report has failed to link the sample voice of the accused with the audio cassette purportedly recorded by PW-1 a few days prior to the death of the deceased. The story of PW-1 that he had recorded the cassette 2-3 days earlier does not appear to be true. Though it has been stated that there was long standing litigation between the parties, not even one document has been produced on record to show that there was any litigation between the parties. When litigation is pending in Court, there is ample documentary evidence to prove this fact. Assuming that there was some litigation between the parties and PW-1 had recorded threats made by the accused, then the question which arises is when his brother was missing why did he not immediately report the matter to the police. If the threats had been held out to the deceased by the accused persons in the presence of PW-1 Shyam Lal and other witnesses, then this should have aroused the suspicion of these persons. When his brother was missing, he should have immediately reported the matter to the police. 6 Animosity or enmity is a double edged sword. It may provide the motive for a crime but it also be the reason to falsely implicate a person. In the present case, nobody had seen the deceased being murdered. In a case of circumstantial evidence, it is the duty of the prosecution to prove each and every circumstance and then link the circumstance together, in such a manner that it would lead to only one irresistible conclusion i.e. guilt of the accused. If there is any possibility of the accused being not guilty then he cannot be convicted. In this case, the prosecution has even failed to prove that the deceased was murdered. The medical evidence indicates otherwise. The doctor has admitted that the ante mortem injuries on the body of the deceased could have been caused by a fall from the road to the khad. He also states that the deceased died due to hypothermia. The incident occurred on 8.1.1992. All these witnesses have admitted that it was very cold during these days and snow had also fallen in the area. Therefore, the possibility of the deceased who was totally drunk falling down from the road and dying due to cold cannot be ruled out. Even otherwise, the prosecution has failed to link the accused with the death of the deceased. The audio cassette cannot be linked to the accused. There is no documentary evidence of litigation between the parties and, therefore, the entire case of the prosecution must fail. 7 In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. April 06, 2010. (rana)