IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 100 of 1998 Decided on 21.04.2010 State of H.P. ..…Appellant.. Versus Surinder Kumar …..Respondent. Coram Hon’ble Mr. Justice, Surjit Singh, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the Appellant : Mr. Romesh Thakur, Assistant Advocate General. For the respondent : Nemo. Surjit Singh, J (Oral): State has appealed against the judgment dated 4th October, 1997 of the learned Sessions Court, Solan, whereby respondent Surinder Kumar, who was charged with and tried for offences under Sections 302 and 201 of the Indian Penal Code, stands acquitted. 2. Case of the prosecution as per record is like this. Deceased Lal Bahadur was brother of the respondent as claimed by the latter. Both of them were employed as labourers in a factory at Baddi. The two along with other three labourers, namely Surinder Pandit PW-2, Lalan Pandit PW-3 and Shiv Shankar used to reside in a common quarter consisting of only one room. On ----------------------------------------------------------------------------------- Whether the reporters of the local papers may be allowed to see the Judgment? 2 19.11.1996 the respondent and the deceased returned to their living quarter early in the morning after performing duty at the factory for the night. Both of them went to sleep. Other occupants of the room left for their duty as they used to work in day shift during those days. In the evening when other occupants of the quarter returned they did not find the respondent or the deceased Lal Bahadur in the quarter. They started preparing their meals around 6.30 PM. After sometime the deceased and the respondent also came to the quarter. They remained there for very short time and left. Lal Bahadur was not seen alive thereafter by anybody. Respondent entered the factory premises through colony gate, all alone, at 12.00 in the night, as per Gate Keeper PW-8 Prem Singh. Next day around 4.00 PM dead body of Lal Bahadur was spotted by PW-6 Mehandi Devi. She informed her husband, who in turn informed the former Pradhan of the Panchayat. Police was informed by said Ex. Pradhan. By the time the police arrived it became dark. Next morning, when inquest was being conducted by PW-13 Shri Gurdial Singh, S.H.O Police Station Barotiwala, respondent made a statement under Section 154 Cr.P.C, which is Ext.PW-13/C. The said statement was sent to the Police Station Barotiwala for registration of the case. As per this statement, Ex.PW-11/A, respondent gave Rs. 200/- to the deceased for purchasing shoes on 19.11.1996 and he left the quarter but did not return thereafter. Statement further reads that around 6.30 PM respondent too left the quarter and went to see a film at a video parlour and returned to the quarter very late in the night. 3. Police interrogated all the occupants of the living quarter. Respondent made confession. He also made disclosure 3 statement which led to recovery of pant Ex.P-2 and shirt Ex.P-3 from his Almirah. These two clothes were sent to the Chemical Examiner. 4. Postmortem of the dead body was conducted on 21.11.1996 by PW-7 Dr. M.R. Verma. He noticed vertical incised wound 1cm x 1cm over upper lip left side, another incised wound 5cm x 2cm below chin with fracture of mandible and 1cm x 2cm incised wound over left of eye lid. On opening the dead body it was found that thyroid cartilage was fractured at two points and also there was fracture of upper two rings of trachea. Mucosa of trachea and larynx were congested. Right and left lungs showed petechiel haemorrhage. Heart contained dark colour blood. Mouth and Oesophagus showed dark coloured blood and congestion. Doctor opined that the case of death was asphyxia due to strangulation. 5. Prosecution examined 13 witnesses in all, besides proving statement Ex.PW-13/C and postmortem report Ex.PW-7/C. Respondent denied his involvement in the death of deceased Lal Bahadur. Learned trial court concluded that the evidence adduced by the prosecution was not sufficient to connect the respondent with the commission of crime. 6. We have heard learned Assistant Advocate General and gone through the record. 7. Prosecution sought to connect the respondent with the murder of the deceased by proving the following circumstances:- (a) Deceased and the respondent were seen together on the evening of 19.11.1996 and thereafter the deceased was not seen alive by any body. 4 (b) Respondent made disclosure statement Ex.PF leading to discovery of pant Ex.P2 and shirt Ex.P3 which were blood stained. (c) Respondent entered the factory very late in the night on 19.11.1996. (d) A pair of shoes Ex.P-1 belonging to the respondent bearing stains of blood was recovered during investigation from outside the residential quarter of the respondent. (e) Respondent has denied having made statement Ex.PW-13/C, on the basis of which case was registered. 8. As regards circumstance (a) the only evidence led by the prosecution is the testimony of PW-3 Lalan Pandit, who stated that he has seen the deceased and the respondent coming out of the gate of the factory at 6.30 PM on 19.11.1996 and that when on reaching quarter he asked Shiv Shankar as to where Surinder and Lal Baahadur had gone, he told that the deceased had borrowed his shoes and shawl and gone to bazaar. He along with all occupants of the quarter, including the respondent were taken to the police station Barotiwala on 20.11.1996 itself and were kept there for three days. The witness himself being a suspect his testimony with regard to this circumstance cannot be accepted without corroboration. And there is no corroborative evidence. 9. Coming to the circumstance (b) none of the witnesses examined by the prosecution has stated that the respondent made a statement that he had kept his pant Ex.P-2 and shirt Ex.P-3 in his Almirah. Lalan Pandit PW-3 who himself was a suspect, though stated that the respondent made a statement that he could get recovered his pant and shirt which he was wearing on 19.11.1996 from his quarter, yet he made this 5 statement only when cross examined by the prosecution. Moreover he did not say that the respondent disclosed that he had kept the clothes in his Almirah. 10. PW-4, Ajit Singh President of the Panchayat, a witness of the disclosure statement, did not say that any disclosure statement, was made by the respondent. However he did say that clothes were recovered from the Almirah of the respondent, which was locked and the key of which was brought from the police station. 11. Investigating Officer of the case PW-13 Gurdial Singh to whom disclosure statement was allegedly made did not state as to what disclosure statement was made by the respondent. He simply stated that the respondent made disclosure statement Ex.PF. 12. It has come in the evidence of PW-4 Ajit Singh as also PW-3 Lalan Pandit that the police had searched Almirah on 20.11.1996 itself. The clothes were not taken into possession on that day. When search of the Almirah had been made on 20.11.1996, the police was supposed to have noticed blood stained pant Ex.P-2 and shirt Ex.P-3 in the Almirah of the respondent. 13. It has also come in the evidence that key of the Almirah was with the police since 20.11.1996 when respondent along with other occupants of the quarter, including PW-3 Lalan Pandit has been taken to the police station. Therefore, possibility of the clothes having been planted in the Almirah of the respondent, cannot be ruled out, especially when PW-13 Gurdial Singh Investigating Officer says that the respondent admitted his guilt on 23.11.1996 and the disclosure statement was made by him two days later, i.e. on 25.11.1996. 6 14. Also we find no evidence on record suggesting that pant and shirt belong to the respondent. PW-3 Lalan Pandit stated that he saw the respondent and the deceased exiting factory gate but he did not say that the respondent was wearing pant Ex.P-2 and shirt Ex.P-3. Thus this circumstance is also not proved. 15. So far as circumstance (c) is concerned no doubt PW-8 Prem Singh has stated that the respondent entered the factory premises from the colony gate around 12.00 in the night and that he looked nervous and his face was pale, but he admitted in the cross examination that he thought that he was nervous on account of being late. It is prosecution’s own case that the respondent had gone to see movie at a video parlour and he took lift by the car of video parlour owner, namely PW-12 Avtar Singh. The witness stated that lift was taken in his car by 3-4 persons. The witness did not say that the deceased was also among those four persons. Therefore, this circumstance can also not be taken to have been proved. 16. As regards circumstance (d) there is no evidence that the pair of shoes Ex.P-1 belongs to the respondent. 17. Coming to the last circumstance, the denial by the respondent that he made statement Ex.PW-13/C cannot be used a circumstance against him. Falsity of the plea of accused, can be used a link in the chain of circumstances only if some of them are proved. Falsity of defence plea by itself, in the absence of any other circumstance serves no purpose of the prosecution. 7 18. In view of the above said position, appeal is dismissed. (Surjit Singh), Judge (V.K. Sharma) Judge. 21st April, 2010 Lsp*