IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 53 of 1999. Reserved on: 19.05.2010. Decided on : 2.6.2010 ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Dalip Singh and another. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents : Mr. Vinay Thakur, Advocate. Per Rajiv Sharma, J.: The State has challenged the judgment of learned Additional Sessions Judge, Shimla rendered in Sessions Trial No.27-S/7 of 1997, dated 31.8.1998 whereby the respondents, who were charged with and tried for having committed the offence punishable under Section 302 read with Section 34 of Indian Penal Code, have been acquitted. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. The case of the prosecution, in a nutshell, is that Major N.K. Aire, Jutogh Cantonment made a report on 25.10.1996 to Police Station, Boileauganj, Shimla to the effect that dead body of some unknown person was lying below Ambedker Chowk near the civil quarters. The Station House Officer alongwith other police officials rushed to the spot. However, the dead body was found inside the military Bungalow, namely, “Hol Comb” near the stairs. One corner of the rope was found on the stairs and the other was found hanging below thereof. A match box having two sticks was found on left side of the dead body. A corner of the rope was found to be burnt. The right side of the pant on the legs of the dead body was found completely burnt. The front portion of the shirt on the dead body was also found burnt upto chest. There was a ligature mark around the neck of the deceased. The dead body was photographed by Santosh Kumar, Police Photographer. The inquest report was prepared and thereafter the dead body was sent to Indira Gandhi Medical College, Shimla for postmortem. Efforts were made to get the dead body identified. F.I.R. was registered after the receipt of postmortem report. Deceased was identified by his brother after seeing the photographs in the police station. The F.I.R. was registered vide Ex.PW-10/B on the basis of rukka Ex.PW-10/A. The case was investigated - 3 - and challan was put up against the respondents. The prosecution has examined number of witnesses. 3. After completion of prosecution evidence, the respondents were examined under Section 313 of the Code of Criminal Procedure Code. They have admitted that they were posted as guards at Military Rest House, namely, “Hol Comb”, Chaura Maidan, Shimla. Accused Dalip Singh had admitted while answering question No.15 that he was taken in custody by the police from Jutogh Cantt. Suresh Chand accused had admitted while answering question No.9 that Havaldar, Girdhari Lal had fallen the Guard, however, he did not know about any report made by Girdhari Lal and that he was arrested by Sub Inspector Parkash Chand from his village. According to their statements, they were falsely implicated. 4. PW-2, Gulab Singh is the brother of the deceased. He stated that his deceased brother was deployed by one Shri Hira Singh with Contractor Uma Sharkar, Villy Park, Chaura Maidan and all the three brothers used to assemble in the shop of Lala Subhash Chand after their duty hours. He was told by the deceased on 24.10.1996 that he had purchased sugar and tea leaves from a soldier in the Western Command. He has revealed the name of the soldier as Dalip Singh. His brother has sold this sugar and tea leaves further to some other person for a consideration of - 4 - Rs.90/- and this amount was to be received by his brother on 26.10.1996 from that person. His brother had given only Rs.10/- to Dalip Singh. His brother had gone to duty on 25.10.1996, but did not come back in the evening. He made inquiry from Hira Singh. He also made inquiry from the contractor, who told him that the deceased Bahadur Singh had worked with him only for an hour. He had gone to the Police Station, Boileauganj with his brother. He was told that the dead body was already cremated; however, they were supplied with the photographs of the dead body retained by the police for identification. They identified the dead body to be that of their brother, Bahadur Singh. They visited the police station again on 22.3.1997. Accused Dalip Singh was found arrested by the police. In their presence, accused informed the police during the interrogation that he had thrown the clothes of the deceased in a jungle below Advanced Study. The Statement Ex.PW-2/A was recorded by the police in his presence. The accused had taken the police to a jungle below Advanced Study and the clothes viz. shirt, pajama and brown colour plastic shoes with white coloured patches were recovered by the police. In his cross- examination, he has admitted that the documents Ex.PW-2/A and Ex.PW-2/B were written in the Police Station, Boileauganj. The clothes were also sealed and taken in possession there. These documents Ex.PW-2/A and Ex.PW- - 5 - 2/B were written immediately on their arrival in the police station from the place of recovery. He was not shown the clothes after the same had been taken in possession by the police. The version given by him of buying sugar and tea- leaves by his brother from the accused does not find mention in his earlier statement recorded by the police on 4.11.1996. 5. PW-3 is Shri Swaran Singh. He states that accused Dalip Singh has led the policy party inside the building, named “Hol Comb” through the door of kitchen. Accused Dalip Singh had told the police that he had taken the deceased inside the building through the kitchen. The accused led the police to master bed room and on inquiry accused Dalip Singh told the police that the dead body of the deceased was hanged with a rope in the master bed room. Rope was taken in possession by the police vide recovery memo Ex.PW-3/A. Knife was also taken in possession as per the same memo. Accused Suresh Chand was also brought in custody to “Hol Comb” building at Chaura Maidan in April, 1997. He also led the police party to the master bed room through the door of kitchen where the deceased was hanged after his death. In his cross-examination, he has admitted that when accused Dalip Singh was brought to master bed room by the police, rope Ex.P-6 was not there. In cross- examination, he further states that the accused Dalip Singh had told the police that there was exchange of fist blows with - 6 - the deceased and presuming him to be dead, he was hanged with the rope. 6. PW-4 is Shri Ratiti Ram. He states that accused Dalip Singh was in police custody when he visited Shimla alongwith Nathu Ram and Gulab Singh on 22.3.1997. Dalip Singh accused stated in the police station that he had thrown the clothes of the deceased in a jungle near Advanced Study, which he could get recovered. The police recorded the statement of accused Dalip Singh vide Ex.PW-2/A. Accused led the police party to the place where he had thrown the clothes of the deceased and at the instance of accused Dalip Singh, the police recovered the clothes, one pair of shoes Ex.P-4, clothes Ex.P-2 and P-3. In his cross-examination, he has also stated that the documents were prepared, which were signed by him and Gulab Singh in the police station. These documents are Ex.PW-2/A and Ex.PW-2/B. 7. PW-5 is Havaldar Girdhari Lal. He narrated that on 25.10.1996 he alongwith accused Dalip Singh had gone for interview to their Unit at Jutogh Cantt. After interview he returned to “Hol Comb” building at about 12.30 p.m. Accused Dalip Singh was inside the building at that time. Thereafter, except the Sentry, the officials deployed at “Hol Comb” had taken lunch. He had gone to take rest. He woke up at 3.30 p.m. and asked Grenadier Narainan to prepare a cup of tea. When he came out near the gate, he noticed - 7 - Grinaidior Panjku Lal and two M.E.S. personnel removing the electricity fault of the guard room. Naik Suresh Kumar was found on duty. At this juncture he was called by Narainan for tea. Panjku Lal was found on the gate and two M.E.S. personnel who were removing the electricity fault were seen by him going upwards towards the guard room. Tea was supplied to him by Narainan. He went alongwith the tea to Sentry Suresh as well as accused Dalip Singh. When he came back, Narainanan told him about the dead body of a civilian lying inside the “Hol Comb” building near the stairs. He rushed inside the building with Narainan and Sentry Suresh. The dead body was found hanged with the help of a rope with the stair case and the pant from one side was also found burnt. Similarly, the shirt was also burnt from one side. A match box was also lying near the dead body. He had fallen in the guard and deployed Army personnel around the building. He thereafter left for the office of Adjudantand and informed him regarding the dead body lying in the master bed room. According to him when he had fallen in the guard, accused Dalip Singh was not present. In his cross-examination, he states that he had seen accused Dalip Singh on that day during lunch time and they had taken lunch together. Suresh Chand also joined them for lunch. They have entered the building from the window which was found open, whereas the main gate was found closed. - 8 - However, he did not remember whether the main gate was locked from inside or outside. 8. PW-6 is Naik Panjku Lal. He was on duty on 25.10.1996 at building known as “Hol Comb” at Chaura Maidan. Accused Dalip Singh and Suresh were also on duty in the building in the capacity of Store keeper and Guard Commander respectively. He was on duty on 25.10.1996 between 1 p.m. to 6 p.m. At 2.30 p.m. Havaldar Girdhari Lal had come to him and two M.E.S. personnel were removing the electricity fault. The civilian labourers were going in and coming out from the campus of the building as the repair work of the building was in progress. Accused Suresh Kumar came to him at 2.30 p.m. and told him that the M.E.S. personnel be sent to see accused Dalip Singh. Dalip Singh was not present in the guard room. Thereafter he came to the Sentry post. Around 4 p.m. Grenadier Narianan came with two cups of tea. He gave one cup of tea to him and the other was taken for accused Dalip Singh. He called accused Dalip Singh from outside. He entered inside the room through a window. Shri Narainan Ram immediately came back and told him that the dead body of some person was lying inside the “Hol Comb” building near stairs. Havaldar Girdhari Lal was informed and he alongwith Narainan Ram and Suresh came to the Sentry post and entered the room. They entered the room through window. - 9 - Accused Suresh was saying that the dead body was of accused Dalip Singh, whereas Havaldar Girdhari Lal that the same is of some other person. In his cross-examination, he stated that during those days the “Hol Comb” building was not occupied. The entry inside the building was through the main gate. When the police came, the main gate was unlocked by Narainan Ram. The dead body was noticed by Narainan Ram when he entered inside the Kothi through a window. All the persons deployed on guard duty in the “Hol Comb” building were taken in custody by their officials which includes Girdhari Lal, Narainan Ram, Bhagan, Suresh and himself. 9. PW-7 is Shri Joginder Singh. He was declared hostile. PW-8 is Dr. D.K. Ghosh, who conducted the postmortem on the dead body on 26.10.1996. According to him, the death of deceased occurred as a result of asphyxia due to ante mortem ligature strangulation-homicidal in nature. The opinion was rendered by him vide Ex.PW-8/B after the receipt of Chemical Examiner’s report. 10. PW-11 is Shri Rakesh Singh. He states that he was posted in Shimla in November, 1995. On 25th October, 1996, he was present in “Hol Comb” building at Chaura Maidan as he had gone there to take to take charge from accused Dalip Sigh. The accused had gone to Jutogh for appearing in an interview. He was asked by accused Dalip - 10 - Singh to bring the receipt of the electricity bill from CPWD. He did accordingly. Thereafter accused Dalip Singh told him to register a complaint as there was no electricity in the guard room of “Hol Comb” building. He went to the office of CPWD for lodging the complaint. When he came back, Narainan offered him tea. He had taken tea for accused Dalip Singh and Sentry on duty Shri Bhagwan. Thereafter Narainan Rame came to him and told that dead body was lying in the “Hol Comb” building. They all came out and havaldar Girdhari Lal, accused Suresh and Narainan Ram had gone inside the building. Thereafter the entire guard was fallen in by Havaldar Girdhari Lal and the Jawans were deployed around the building to keep watch and ward and thereafter Havaldar Girdhari Lal had left to the Unit at Jutogh. Accused Dilip Singh was not present when the guard was fallen, whereas, accused Suresh was present. 11. PW-12 is Sepoy Narainan Ram Chaudhary. He was posted in “Hol Comb” building at Chaura Maidan in the month of September, 1996. According to him, the Guard Incharge was Havaldar Girdhari Lal, whereas Store Keeper was accused Dalip Singh. Rakesh Singh and accused Suresh were posted in “Hol Comb” building in October, 1996. Sepoy Rakesh Kumar had to replace accused Dalip Singh, whereas accused Suresh Chand was posted as Guard Commander. Accused Dalip Singh and Girdhari Lal had gone - 11 - to Jutogh in connection with some interview on 25.10.1996. Accused Dalip Singh came back in “Hol Comb” building at 12.30 p.m. He alongwith accused Suresh prepared the meals for the guard. After Havaldar Girdhari Lal came back, they had taken their meals. He was asked by Havaldar Girdhari Lal to prepare tea at 3.30 p.m. for the guard. He prepared and served the tea for the guard. He took tea for Shri Panjku Ram, Sentry and accused Dalip Singh. After giving tea to Sentry, he inquired about accused Dalip Singh. He told that accused Dalip Singh was inside “Hol Comb” building. He had gone to “Hol Comb” building to give tea to accused Dalip Singh. He found the door bolted from inside. He entered inside the building from the window when there was no response from inside. He noticed dead body lying towards stairs inside the building. He immediately came out of the building and apprised Havaldar Girdhari Lal, Guard Commander and accused Suresh Kumar. Thereafter Havaldar Girdhari Lal and accused Suresh came inside the building through that very window. In his cross-examination he narrates that accused Dalip Singh had taken meal when he came back after appearing in the interview. The entire guard including accused Dalip Singh had their lunch at 1 p.m. 12. PW-13 Havaldar Rajinder Singh deposed that he was Guard Incharge at “Hol Comb” building, Chaura Maidan. The police had brought accused Dalip Singh. He opened the - 12 - door adjoining the kitchen after being permitted by his senior officer on the request of the police. He was declared hostile. 13. PW-15, Parkash Chand, Sub Inspector has investigated the matter. PW-16 is Shri Sant Ram. He was also declared hostile. In his examination-in-chief he has stated that he did not see deceased Shri Bahadur Singh going with accused persons to “Hol Comb” building at Chaura Maidan. 14. There is no eye witness of the occurrence and the case is based on circumstantial evidence. It is settled law by now that the prosecution has to prove the entire chain in order to prove the case against the accused based on circumstantial evidence. 15. According to the learned trial Court the following circumstances were relied upon by the prosecution to establish the guilt of the accused persons: - i) The deceased a labourer, working with the contractor Sh. Uma Shankar at Villy Park Chaura Maidan and his tea-leaves and sugar deal with the accused Dalip Singh as well as the motive to commit the offence by the accused persons the inability of the deceased to make the payment of remaining sale consideration amounting to Rs.60/-. - 13 - ii) The deceased lastly seen in the company of the accused persons while entering in the Bungalow “Hol Comb” at Chaura Maidan. iii) The deceased having been assaulted inside the building “Hol Comb” by accused Dalip singh and believing the deceased already dead, hanged the dead body, putting his own civilian dress and shoes on the person of the dead body at the behest of his co-accused Suresh. iv) The conduct of accused Dalip Singh such as absconding from the place of occurrence after commission of offence alongwith the clothes removed from the person of the deceased at the behest of his co-accused Suresh Chand and such clothes thrown away in the jungle while absconding. v) The mortgage of watch as well as golden ring by accused Dalip Singh while absconding, when not left with money, at Kalka with PW-7 Sh. Joginder Singh. vi) The recovery of clothes and shoes Ext.P-2 to Ext.P-4 at the instance of the accused Dalip Singh as well as the confession of his guilt and that of his co-accused Suresh Chand while in custody; and vii) The recovery of diary Ext.P-15/D during the search of the box of accused Suresh Chand. 16. Now we will have to advert to all the circumstances noticed by the learned trial Court. - 14 - First circumstance: 17. In order to prove this circumstance, the prosecution has relied upon the statement of PW-2 Gulab Singh. According to him, on 24.10.1996 deceased purchased sugar and tea-leaves from a soldier in the Western Command. He revealed the name of the soldier as Dalip Singh. His brother sold the sugar and tea-leaves further to some other person for a consideration of Rs.90/-. This amount was to be received by his brother on 26.10.1996 from that person. According to him, his brother had paid only Rs.10/- to Dalip Singh. It cannot be believed at all that a person will kill another person for a paltry sum of Rs.60/-. His statement was recorded under Section 161 of the Code of Criminal Procedure on 4.11.1996. He does not mention at all about the sugar and tea-leaves purchased by his brother from accused Dalip Singh in his earlier statement. If such a strong circumstance was pressed against the accused, PW-2 Gulab Singh could have stated in his statement recorded under Section 161 of the Code of Criminal Procedure by the police. The prosecution has failed to prove that accused Dalip Singh had ever sold sugar and tea-leaves to the deceased. The statement of accused Dalip Singh recorded in the police custody cannot be relied upon by the prosecution. According, the prosecution has failed to prove the motive which led to the murder of the deceased. - 15 - Second circumstance: 18. The prosecution has relied heavily upon the statement of PW-16, Santi Ram to prove this circumstance against the accused. PW-16 in his examination-in-chief states that he did not see Bahadur Singh going with accused to “Hol Comb” building at Chaura Maidan. He was declared hostile. He categorically denied when cross-examined by the prosecution that he has ever told the police that the dead body was of that person who entered inside the Kothi alongwith accused Dalip Singh. He also narrated in his cross-examination that he was harassed by the police and forced to tell about the deceased and the police also allured him by making payment in cash. Accordingly, the prosecution has failed to prove this circumstance of last seen together as well against the accused. Third circumstance: 19. The third circumstance relied upon by the prosecution is that the deceased was assaulted inside “Hol Comb” building, Chaura Maidan by accused Dalip Singh and believing him to be dead, hanged the dead body by putting his own civilian dress and shoes on the person of the dead body at the behest of his co-accused Suresh. It cannot be believed that a civilian could enter the building which was guarded by the guards 24 hours. The guards could easily notice if a civilian was given access to the building. There is - 16 - also a variance where the dead body was lying. According to Major N.K. Aire, when he informed the Police Station, Boileauganj, the dead body was lying near the civil quarters below Ambedkar Chowk, Chaura Maidan. However, when the Station House Officer reached the spot, he found the dead body inside the “Hol Comb” building. According to the prosecution, the deceased was assaulted in the lobby of the ground floor and thereafter he was taken inside the bungalow through the door of the kitchen. He was thereafter taken to the master bed room. The police had prepared the sketch map Ex.PW-15/A. The deceased was taken to master bed room at point “I” and thereafter assaulted at point “J” and the dead body was hanged from the stairs at point “H”. The prosecution has not put this sketch map Ex.PW-15/A to PW-3 Shri Swaran Singh. Havaldar Rajinder Singh has not supported the prosecution case on this aspect. According to him, accused Dalip Singh has never given the identification of the place/spot inside the building “Hol Comb” to the police nor told the police where the deceased was assaulted by the accused and where co-accused Suresh kicked the deceased. It has come on the record that the “Hol Comb” building was under repairs. Number of labourers were going in and coming out from the building. Sentries were posted at the building. In these circumstances, it is not believable that the accused could take the deceased inside the building in the - 17 - manner alleged by the prosecution. In case the deceased was beaten-up by the accused, he was bound to raise hue and cry, which could easily draw the attention of the sentries or the labourers who were working inside the building. Accordingly, in view of the above observation, the prosecution has also failed to prove this circumstance against the accused. Forth circumstance: 20. The fourth circumstance relied upon by the prosecution is the conduct of accused Dalip Singh. According to Havaldar Girdhari Lal, PW-5, when he had fallen in the entire guard on 25.10.1996, accused Dalip Singh was not present. PW-6, Panjku Lal was on duty at the Sentry post and Narainan Ram. Narainan Ram has informed PW-5 and PW-6 about the dead body lying inside the bungalow. According to PW-12, Narainan Ram, he came with a cup of tea for accused Dalip Singh. According to him, he was told that the accused was inside the building. He knocked at the door. It was not opened and thereafter he entered the building through a window and noticed the dead body. It was for the prosecution to prove where the accused had gone after 25.10.1996. An attempt has been made by the prosecution to prove that he was with his sister. The sister has not been examined. Even the prosecution has not produced any evidence that the accused Dalip Singh had - 18 - surrendered before the Army at Jutogh. However, it has come on record as per the evidence of PW-5, PW-6, PW-11 and PW-12 that the accused was on duty upto 25.10.1996. It was for the prosecution to establish that