IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 221 of 2006 with Cr. Appeal No. 190 of 2006 Reserved on: 25.5.2009 Date of decision: 02.07.2009 1. Cr. Appeal No. 221 of 2006: Malkiat Singh & Anr. ... Appellants Versus State of H.P. … Respondent 2. Cr. Appeal No. 190 of 2006: Jasbir Singh ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. 1. Cr. Appeal No. 221 of 2006: For the appellants: Mr. Harish Behal, Advocate. For the respondent: Mr. R.M. Bisht, Deputy Advocate General. 2. Cr. Appeal No. 190 of 2006: For the appellant: Mr. N.K. Sood, Advocate. For the respondent: Mr. R.M. Bisht, Deputy Advocate General. Per V.K. Ahuja , J.: This judgment shall dispose of an appeal filed by the appellants Malkiat Singh and Vaishno Devi, through jail against the judgment of the Court of learned Additional Sessions Judge, Fast 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Track Court, Kangra at Dharamshala, dated 13.4.2006. The second appeal has been filed by appellant Jasbir Singh through jail against the said judgment passed by the learned trial Court. All the appellants have assailed the conviction and sentence imposed by the learned trial Court upon them, vide which the appellants were held guilty as under:- Appellants Malkiat Singh and Vaishno Devi U/S 120-B: Life imprisonment and fine of Rs.20,000/- each. Appellant Jasbir Singh U/S 302 I.P.C.: Life imprisonment and fine of Rs.20,000/-. In case of default of payment of fine, all the appellants were to undergo simple imprisonment for one year. They were further sentenced to simple imprisonment for one year for offence under section 201 I.P.C. and fine of Rs.1,000/- each and in default of payment of fine, they were to further undergo simple imprisonment for 15 days. The prosecution story in brief is that on 16.6.2004, at about 8.25 A.M., S.H.O. Police Station Jawali, was present in the area of Dhanuna in connection with the investigation of a case. Complainant Sher Singh met him and gave statement to him, which was recorded by him. In the said statement, he alleged that his younger brother Piar Singh had come on pension 5-6 years ago from BBMB Pong Dam. On 30.5.2004, the complainant had gone to the house of his brother Piar Singh to enquire about his health and at that time, his brother’s daughter-in-law Vaishno Devi, Malkiat Singh, her husband and driver Jasbir Singh were quarrelling with his brother. He further alleged that the daughter-in-law was proclaiming 3 that they will kill him and throw him in the area of Punjab. He further alleged that his brother used to a proclaim that his daughter-in-law was having illicit relation with driver Jasbir Singh and for that reason, all these three persons had also earlier quarreled with his brother and had given him beating. He further alleged that on 31.5.2004, at about 7.30 A.M., when he came back from the Khad after taking bath, his brother Piar Singh alongwith his son, daughter and driver was standing near Tata Sumo No. HR-01E-1902 for going to some other place. He enquired from his brother as to where they were going, who told him that he was going to Talwara to take pension. Thereafter, all these persons left in the vehicle and the remaining three persons and vehicle came back in evening. He enquired from Vaishno Devi and her husband Malkiat Singh about the whereabouts of his brother who told him that he was their father and what connection he has got. On 14.6.2004 Malkiat Singh sold the said Tata Sumo and he became sure that all these persons had killed his brother and may have hidden the dead body at some place. On the previous day i.e. on 15.6.2004, he told all these facts to Kewal Singh, Up-Pradhan and was going today to Police Chowki alongwith Pradhan to make report and the police met him on the way. On this statement which was recorded on 16.6.2004, the case was registered and after investigation, the challan was filed as against all the three appellants before the Court of learned Addl. Chief Judicial Magistrate, Jawali, who committed the case to the Court of learned Session Judge, who assigned the case to the learned trial Court. The trial Court tried the appellants leading to their conviction and sentence as detailed above. 4 We have heard the learned counsel for the parties, have gone through the record of the case and have gone through the points raised during the course of arguments or the infirmities pointed out during the course of arguments, which shall be referred below while referring to the evidence led by the prosecution. The submissions made by the learned counsel for the appellants were that there is no direct evidence in regard to the commission of the crime. It was submitted that the learned trial Court had relied upon the circumstantial evidence, which allegedly consists of the evidence in regard to last seen, recovery of dead body at the instance of the disclosure statement by one of the appellants and the recovery of the clothes of the deceased from the place of occurrence. It was submitted that the circumstantial evidence proved on record was not sufficient to prove the guilt of the appellants since the necessary chain was not there which could point out only to the guilt of the appellants. Thus it was submitted that the findings of the learned trial Court to the contrary holding the appellants guilty are liable to be reversed and as such, the appeals filed by the appellants deserve to be allowed accordingly. On the other hand, the learned Deputy Advocate General for the State had supported the impugned judgment for the reasons recorded therein. On appraisal of the evidence led by the prosecution, it is clear as rightly submitted by the learned counsel for the appellants that the case rests upon the circumstantial evidence only and all the circumstances relied upon by the learned trial Court have to be 5 considered as to whether they stand proved and they conclusively establish the guilt of the appellants or not. The first fact and not the circumstance proved by the prosecution was that on the day he was allegedly seen by the complainant in the company of the appellants i.e. on 31.5.2004, the deceased had gone to Talwara and had withdrawn his pension on that day. PW-18 ASI Yog Raj has stated that he presented application Ext. PW18/A to the bank Manager, who handed over him Exts. A-1 to A-3 vide Memo Ext. PW7/A in presence of witnesses which had been signed by the Manager. The said Manager has been examined as PW-20 Jai Chand Wadi who stated that an application was moved on 17.6.2004. He also stated that Piar Singh had an account in the bank and he used to draw his pension. On 31.5.2004, the deceased had withdrawn the amount of Rs.5,000/- vide form Ext. A-1, copy of the Cashier Log Book Ext. A-3, which documents were taken in possession by the police. The above evidence which has not been challenged during the course of arguments by the learned counsel for the appellants only proves this fact that the deceased had gone to Talwara on 31.5.2004 and had withdrawn his pension on that day. However, there is nothing on record to establish that as to whether he came alone to the bank or was accompanied by some other persons since banks are not expected to keep such a record and no other person has been examined who may have seen the deceased personally going to draw his pension. Thus, this fact in the circumstances establishes that the deceased had gone to Talwara on 31.5.2004, withdrew his pension and he was alive on 31.5.2004. 6 The first circumstance relied upon by the learned trial Court was that the deceased was lastly seen by his brother complainant PW-3 Sher Singh on 31.5.2004, at about 7.30 A.M., alongwith all the three appellants, who thereafter left in his presence in the Tata Sumo for Talwara. Thereafter, his brother was never seen. He stated that they were ready to leave at 7.30 A.M. and when he enquired from his brother, he told him that he was going to Talwara to take pension and they left in his presence but his brother never returned and he enquired from Vaishno Devi, Malkiat Singh, who told him that he was their father and he has no concern. In the complaint lodged by the complainant Sher Singh Ext. PW3/A, he had mentioned this fact very clearly. In the said report, he had also alleged that on 30.5.2004 i.e. one day prior to the last seen evidence, he had gone to the house of his brother to enquire about his health and all the three appellants were quarrelling with his brother and Vaishno Devi was proclaiming that they will kill deceased and throw him in the area of Punjab and he will not be traceable. He also alleged that his brother used to suspect illicit relations in between his daughter-in-law and driver Jasbir Singh and for this reason, his brother used to be given beatings earlier also and the appellants used to quarrel with him. It has to be seen as to how far the statement made by the complainant in regard to the last seen or the occurrence one day earlier inspires confidence and, therefore, his statement made in Court has to be considered. The complainant Sher Singh has been examined as PW-3, who reiterated that he had gone to see his brother on 30.5.2004 and the accused persons were giving threats to him. In 7 his presence accused Vaishno Devi threatened that they will kill him and will throw him in Beas river. Malkiat Singh and driver Jasbir Singh were also present there who were quarrelling with the deceased Piar Singh. He further stated that Jasbir Singh had illicit relations with Vaishno Devi. His brother used to object it and used to say that they should remove him and in his place someone be kept and Vaishno Devi was adamant to keep Jasbir Singh as driver. He further stated that on the next day he returned home after taking bath at about 7.30 A.M. found that all the three accused including Piar Singh in the jeep and on enquiry, he was told that he is going to collect his pension from Talwara. Thereafter, all went in the jeep. The jeep was owned by accused Malkiat Singh but had been financed by the deceased. In the evening, all the three accused returned. However, Piar Singh did not return. They had returned in the jeep. On enquiry, the accused told that the deceased had gone to his relations. He did not name the accused who told him this fact and how he had come to their house. He further stated that Vaishno Devi and Malkiat Singh had told that they had reported the matter with the police and it is for them to search Piar Singh. In cross-examination, he stated that the villagers came to know that Piar Singh is missing when the accused lodged report in the police qua his missing. It is correct that the accused kept on enquiring from all the relations about Piar Singh. He further stated that he does not remember that missing report was made by accused after 5-6 days. He further stated that he had told Ramesh and Kewal that the accused had given threats to the deceased in his presence but this was not so disclosed to the police 8 prior to lodging of report by him. The said Ramesh and Kewal have not been examined to substantiate this fact that they had been told at any point of time about the threat given to the deceased. He denied the suggestion that he had not visited the house of his brother on 30.5.2004 and 31.5.2004 or all the accused persons never gave threats in his presence. His statement shows that for the first time he had informed the Pradhan about the threats or having seen the deceased with the accused persons when he went to him on 15.6.2004 i.e. one day prior to the lodging of the report on 16.6.2004. The said missing report lodged by the accused persons has been proved in evidence as Ext. PW14/A. A perusal of the same shows that a missing report was lodged with the police by Vaishno Devi, appellant, on 8.6.2004 at 7.15 A.M. In the report, she had alleged that her father-in-law used to go to Talwara to take pension and he had gone as usually on 31.5.2004 for taking pension but did not return. She enquired from the Punjab National Bank and learnt that the pension had been withdrawn by Piar Singh on 31.5.2004. She thereafter enquired from her sisters (sisters of her husband and other relatives) who informed her that her father-in-law had not visited them. She further alleged that for the last 5-6 months, her father-in-law was having some mental illness and they did not use to allow him to go alone but he left the house on 31.5.2004 at 6.00 A.M. out of his own accord and without telling them. PW-4 Kewal Singh, Up-Pradhan, has stated that on 15.6.2004 Sher Singh had come to him during night and told him that his brother was missing since 15 days. On enquiry, Malkiat Singh who is the appellant, was not providing satisfactory reply saying that 9 Piar Singh was his father and how he is concerned with that on account of which he had suspicion and wants to report the matter to the police. He had also stated that Sher Singh had told him that on 30.6.2004, it should be 30th May, the appellants were quarrelling with Piar Singh. On the next day, he had seen all the three accused and Piar Singh proceeding towards Talwara in the jeep. From the above discussion of the evidence, two things emerge, first that the complainant visited the house of the brother on 30.5.2004, sees the appellants quarrelling with the deceased and a threat given by appellant Vaishno Devi in presence of the other accused that the deceased will be killed and thrown in some area in Punjab. The second fact which emerges from the statement of the complainant is that he again sees the deceased going with all these three persons in the jeep in the morning towards Talwara and on enquiry, he was told that the deceased was going to Talwara to take his pension. The statement of the complainant PW-3 shows that he was coming back after taking bath in the Khad when he saw the appellants and further there is nothing on record to show that the house of the deceased fall on way from Khad to the house of the complainant. There is nothing in his statement to show that any other person was present at that time. He simply stated that he had told the fact to two other persons but they had not been examined by the prosecution. The only person examined is PW-4 Kewal Singh who learnt it for the first time from the complainant after 15 days about this fact i.e. on 15.6.2004 that the deceased had gone with the appellants to Talwara in the jeep on 31.5.2004 and a threat had been given to him one day earlier. It has to be 10 seen as to whether the solitary statement of the complainant in this regard is sufficient to hold that the last seen evidence is reliable and can be relied upon as one of the major circumstances as against the appellants. It is clear from a perusal of the statement of the complainant himself as PW-3 that the deceased was suspecting illicit relationship in between his daughter-in-law, appellant Vaishno Devi and appellant Jasbir Singh, driver and had been asking them for his removal. It is clear that the relations in between the deceased and the appellants cannot be said to be good for the reason that Malkiat Singh, his son, had not turned out his driver, namely, Jasbir Singh, even though his father suspected some illicit relations in between his daughter-in-law and Jasbir Singh, driver, one of the appellants. It is surprising that even though they were aware of the fact that the relations in between the appellants and the deceased were not good still the deceased was providing all the household expenses to his son and daughter-in-law, two of the appellants for running their household affairs. It is also in evidence that the jeep in question had been financed by the deceased. It looks surprising that the complainant PW-3 Sher Singh did not deem it necessary for all these 15 days to make a complaint to any person or Pradhan or the police that his brother had been given a threat by the appellants one day prior to his missing on 31.5.2004 and inspite of the fact that his brother had been seen by him going with the appellants in the jeep but did not return to the village and he keeps mum for the next 15 days. It looks surprising that the brother of the deceased will not make a report to the police even inspite of the 11 fact that a threat had been given by one of the appellants in presence of others to eliminate the deceased but he still keeps mum inspite of no cordial relations in between the appellants and the deceased. All the three appellants may have a reason to eliminate the deceased since he was suspecting illicit relations in between two of the appellants, namely, his daughter-in-law and driver and had asked his son to remove him but still no such report was lodged for 15 days by the real brother of the deceased, who woke up only after 15 days to lodge the report. Moreover, it also looks surprising that the deceased who had been given a threat by one of the appellants in presence of two other appellants to eliminate him one day earlier, but inspite of the threat so serious given to him on the next day itself he agrees to go with them or is taken by the appellants to Talwara for taking pension. If he was mentally disturbed, for which there is no evidence he may have been taken by the appellants against his wish but no such evidence is on record in regard to his mental disturbance or abnormal condition. Therefore, the only conclusion that can be drawn is that inspite of having received a threat one day earlier, the deceased accompanied the appellants and the only witness who is his brother complainant PW-3, but his subsequent conduct in not reporting the matter to any person or authority for 15 days makes his version doubtful, which cannot be used as positive circumstance as against the appellants so as to hold this as one of the major circumstance pointing out to the guilt of the appellants. Apart from the above, before the evidence in regard to last seen can be relied upon, the last seen evidence has to be in 12 close proximity to the death or immediately thereafter if the deceased was found dead, it can be relied upon. According to the evidence, the deceased was missing or was last seen with the appellants on 31.5.2004 till 16.6.2004 when the skelton was recovered at the instance of one of the appellants which evidence shall be discussed below. There was nothing on record to show that the deceased was dead and on which date he died. There is no positive evidence on record in regard to the death of the deceased. However, we may make a reference to the statement of the Medical Officer PW-1 Dr. D.P. Swamy, who conducted the postmortem on the skelton of body of deceased Piar Singh. He stated that he conducted the postmortem on 16.6.2004 vide application submitted by the police alongwith inquest report Ext. PW1/B and Ext. PW1/C. In regard to time that lapsed between injury and death, the Medical Officer had opined that it was within five minutes and in between death and postmortem, was within 1 to 8 weeks, meaning thereby that on the date the postmortem was conducted, the deceased may have died one week earlier i.e. on 7.6.2004 or eight weeks which comes to 4th May. No definite date is there on record either in oral or medical evidence in regard to the death of the deceased. Coming to the last seen evidence or how far this can be relied upon, the learned counsel for the appellant had relied upon the following decisions: The decision in K.T. Palanisamy Vs. State of Tamil Nadu, (2008) 3 Supreme Court Cases 100, shows that the case rested upon circumstantial evidence and the sole circumstance was of the deceased having been last seen with the accused by the 13 prosecution witnesses. The observations made in Paras 18 and 21 are relevant and are being reproduced below: “18. All the prosecution witnesses are related to the deceased. It is difficult for us to believe that all the witnesses saw the deceased accompanying the accused persons one after the other at different places. Therefore, chances of their deposing falsely cannot be ruled out. Be that as it may, when the offence is said to have been committed and the circumstantial evidence is made the basis for establishing the charge against the appellant, indisputably all the links must be completed to form the basis for his conviction. 21. In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceased having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses witnesses. More significant is the conduct of the prosecution witnesses. On the day of the alleged crime, they did not suspect the appellant in any manner whatsoever. They did not even go to the place of the occurrence. Despite the fact that he was missing, the purported explanation of the appellant was taken for granted. Even no missing report was lodged. It was expected that such missing report should have been lodged immediately and that details of his wearing apparels as also the fact that he had two rings on his finger and one gold chain would have been mentioned.“ A reliance was placed upon a decision in Hatti Singh Vs. State of Haryana, (2007) 12 Supreme Court Cases 471. 14 The observations made in Para-26 are relevant and are being reproduced below: “26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.” A reliance was also placed upon a decision in State of Goa Vs. Sanjay Thakran and another, (2007) 3 Supreme Court Cases 755. The observations made in Para-34 are relevant and are being reproduced below: “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a