IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.309 of 1992 Decided on : May 9, 2008 State of H.P. …Appellant. Versus Bhupinder Kumar and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. For the Respondent : Mr. R.K. Gautam, Senior Advocate, with Mr. Naveen Bhardwaj, Advocate. Surjit Singh, Judge( Oral ) State is aggrieved by the judgment of the Sessions Court, whereby respondents, who were charged with and tried for an offence, punishable under Section 302, read with Section 34 of the Indian Penal Code, have been acquitted. 2. We may first summarize the prosecution version. Deceased Piare Lal was an old man. He did not have any issue. He had a devoted wife, namely PW-26 Ram Dulari. She asked him to go for another marriage so that he had children from the second wife and even remained away from the matrimonial home for complete three years and returned only after he fell sick and was admitted to PGI at Chandigarh. The deceased, however, did not remarry and it appears that he was equally devoted to his wife as his wife to him. Respondent Bhupinder Kumar was related to the deceased, being his Whether reporters of the local papers may be allowed to see the judgment? …2… sister’s son (Bhanja). It appears that he used to visit the deceased frequently. On 10th October, 1990, deceased went to some place near the village to fetch clay. When he was returning, respondent Bhupinder Kumar met him and asked for some money. Deceased told that he had already spent a lot of money on his marriage and was unable to pay him more. The time was around 11 a.m. On return to his house, deceased asked his wife PW-26 Ram Dulari if respondent Bhupinder Kumar had visited their house in his absence. She told that he had not come. The deceased then told PW-26 Ram Dulari that the respondent, above-named, was asking for a sum of Rs.50,000/-, but he told him that he had no money to spare. 3. On the night of the aforesaid date, around 10.30 or 11, PW-1 Maksudan, a brother of the father of the deceased, while sleeping in his own house, near the house of the deceased, heard someone knocking at the door of the deceased and asking him to open the door. He then heard the door being opened. Thereafter, he went to sleep. Around 1 a.m., he heard some muffled voice, which woke him up. He thought that he heard the voice in dream, because he was in sleep and went to sleep again. Next morning, at 6 p.m., he heard the shrieks of PW-26 Ram Dulari and when he went there he found Piare Lal being dead. 4. That night PW-26 Ram Dulari, the widow of the deceased, had slept in another house of the deceased, where a lady named Rattni, a sister of the mother of the deceased, used to live, as said Rattni was sick. PW-26 Ram Dulari returned to the house where her husband (the deceased) slept early in the morning and when she went to serve tea to him, she found him dead and raised alarm, which attracted the neighbours, including PW-1 Maksudan. …3… 5. PW-23 Bilayati Ram, Pradhan of the Panchayat, who resides in the same village, was informed by PW-2 Raj Kumar, a neighbour of the deceased. He then left for Police Post Jogon. On the way, ASI Param Dev (PW-32) met him. He apprised him of the killing of the deceased. Information given by him to the said ASI was reduced into writing in the form of statement, under Section 154 of the Code of Criminal Procedure. The said statement is Ex. PN. That statement was sent to Police Station, Nalagarh. There the case was formally registered vide FIR Ex. PW-34/A. PW-32 ASI Param Dev then left for the spot. He conducted inquest and sent the dead body for postmortem examination. Following ante-mortem injuries were noticed on the dead body by PW-22 Dr. Lakhbir Singh, who conducted the postmortem examination: “1. External Appearance Stout well built, middle aged man 5’6”. Legs flexed at knees, Arms flexed at elbows. Rigor mortis present. Post mortem staining present. Right eye open, left eye closed. Injuries Incised wounds on the right fore-arm 1” above wrist on venteral surface. Wound on medial side was 2” x 0.5” and on lateral side is 1 cm x 0.5 cm both were communicating with each other. Wounds tapering distally. Nine incised wounds in right side of neck as shown in the picture given on the reverse side of page No.1 of post mortem report. 2 cm. x 0.5 cm. in size with variable depths. Wound No.2, 3 and 4 cutting the external juglar and external carotid. No. 9 stab wound 3 cm. x 0.5 cm. in size communicating with the right chest cavity. Underlying muscles cut and clots present in all the wounds. The medial side of the wound was shallow. Wound No.8 and 10, 6 and 7 communicating with each other respectively. Incised wound No.2, 3, 4, 5 and 6 on left shoulder region and front of chest as shown in the picture with the dimension of 2 cm. x 0.5 cm. and 3 cm. x 0.5 cm. The underlying muscles cut with the corresponding wounds. Wound No.1, 7, 8 and …4… 9 were stab wounds communicating with chest cavity. Medial ends of the wounds were tappering. No ligature mark on the neck. On opening the dead body, he found the fourth rib fractured, pleurac ruptured, both the lungs wounded and large vessel punctured. He gave the opinion that the cause of death was excessive haemorrhage and injuries to lungs resulting in cardio respiratory arrest. 6. Police investigated the matter. It came to light that on 9th October, 1990, respondent Bhupinder Kumar had borrowed motorcycle of PW-30 Surender Kumar, with a promise to return the same on the next following day. But when he did not return the same till 12th October, PW-30 Surender Kumar went to the village of respondent Bhupinder Kumar. He found that the glass of the head light of the motorcycle had been changed and its handle was also damaged. Respondent requested PW-30 Surender Kumar not to disclose to anybody that he had borrowed his motorcycle prior to the date of the death of deceased Piare Lal and also not to disclose that the glass of its head light had been replaced. 7. It was also found that on 10th October, 1990, both the respondents went to the house of PW-8 Poonam Sharma and had their meals at her place and they were provided a Khesi (a light weight blanket of cotton), because it had started getting colder. Police recovered that Khesi Ex. P-2, from the house of the second respondent Vijay Kumar during the investigation and it was found to be stained with human blood, per report Ex. PX of the Chemical Examiner. Respondent Vijay Kumar, while in police custody, made a statement leading to the discovery of dagger Ex. P-1 from the …5… bushes across main Bhakra Canal, at a place called Nakiyanpul. The dagger was also found to be stained with blood, per report Ex. PX. 8. PW-25 Maghi Ram heard the sound of a motorcycle while he was sleeping in his shop in the village of the deceased, around 10.30 p.m., and then he saw the motorcycle being parked near his shop and two persons going towards the village on foot. 9. On the day next following the day of the occurrence, i.e., 11th October, 1990, PW-28 Rajinder Gautam, who had gone to attend the cremation of deceased Piare Lal, saw respondent Bhupinder Kumar with a motorcycle at the bus stand of the village, where the deceased lived and when he told him that it was being rumoured that two persons had come to the village, on the previous night, on a motorcycle, respondent Bhupinder Kumar started looking at his motorcycle and told that his motorcycle had gone out of order on the previous night near Kiratpur in Punjab and he also looked annoyed when PW-28 Rajinder Gautam further told him that someone having property dispute with the deceased might have killed him. 10. Some broken pieces of the glass of the head light of motorcycle were got recovered by respondent Bhupinder Singh from the side of road near village Buga Sahib in Ropar District of Punjab. 11. PW-26 Ram Dulari informed the police that a Chachi of the deceased had informed her that once when the deceased was living alone as she (Ram Dulari) had been living at her parents’ place, respondent Bhupinder Kumar made an attempt to break open the chest in which the deceased used to keep his money and ornaments, etc. …6… 12. Trial Court acquitted the respondents holding that the case did not stand proved beyond reasonable doubt. 13. We have gone through the record and heard the learned Additional Advocate General as also the learned counsel representing the respondents. 14. We see no reason to disagree with the finding of the trial Court that the circumstances testified by various witnesses, examined on behalf of the prosecution, do not make a complete chain leading to one and only one hypothesis that the respondents are the killers of the deceased. 15. It is well settled that in a case based on circumstantial evidence every circumstance must be established to the hilt and the circumstances, so established, should form a complete chain pointing to the guilt of the accused and should also exclude the possibility of a hypothesis other then the guilt of the accused. It is also well settled that a suspicion, howsoever strong, cannot take the place of proof. 16. In the present case, there is absolutely no evidence that two persons, who parked the motorcycle near the shop of PW-25 Maghi Ram in village Kundlu where the deceased used to live, were the present respondents or the motorcycle that was parked by them near his shop was the same which had been borrowed by respondent Bhupinder Kumar, on the previous evening, from PW-30 Surinder Kumar. 17. Testimony of PW-26 Ram Dulari, the widow of the deceased, that once she had been told by Massya, Chachi of the deceased, that respondent Bhupinder Kumar had tried to open the chest, containing money and ornaments, does not inspire …7… confidence. She did not disclose this fact to the police while making statement with which she was duly confronted. Furthermore, it has come in the evidence that the deceased had kept the chest/almirah, containing the money and the ornaments, not in that house where he personally lived and was found murdered, but in the second house where his Chachi Massya used to live. Now, if the chest/almirah, containing money and ornaments, was not kept by the deceased in the house where he used to reside and where he was murdered, respondent Bhupidner Kumar, being his nephew and a frequent visitor and also knowing, per testimony of PW-26 Ram Dulari, that the chest was lying in the other house, should not have gone to the house where the deceased lived, in case the motive for killing the deceased was to take away the money and the ornaments, as is alleged by the prosecution. 18. Recovery of Khesi with stains of human blood from the house of respondent Vijay Kumar also does not connect the respondents with the crime. The Forensic Science Expert, even though found stains of human blood on Khesi, he could not determine the group of blood and, therefore, it cannot be said that the stains found thereon were that of the blood of the deceased. So is the case with dagger Ex. P-1, allegedly recovered at the instance of respondent Vijay Kumar. Replacement of the glass of the head light of the motorcycle, on account of the breaking of the original glass, also in no way connects the two respondents with the commission of the crime. 19. Testimony of PW-28 Rajinder Gautam does not inspire confidence. The witness says that it was on the very next day of the murder that respondent Bhupinder Kumar conducted in a strange …8… and perplexed manner, when told by him that it was being rumoured in the village that the killers had come on a motorcycle. However, he did not inform anybody about this alleged conduct of respondent Bhupinder Kumar, per his own deposition. He stated that because he was getting late and had to go to Nalagarh, he did not go to the village from the bus stop to inform anybody about the aforesaid conduct of the respondent. He offered no explanation, when asked why he did not go to Police Station, Nalagarh, on reaching that place in the evening. Now, had the respondent conducted in the manner testified by the witness, it was expected of the witness to have immediately informed the police and the co-villagers and the relatives of the deceased. 20. In fact, we find from the police ziminis available with the learned Additional Advocate General, which we have been shown on our asking, that this witness made a statement to the police on 11th October, 1990, but in that statement there is no reference to the aforesaid conduct of respondent Bhupinder Kumar. His statement regarding the aforesaid alleged conduct of respondent Bhupinder Kumar was recorded one month later, i.e. on 11th November, 1990. The witness was confronted with this statement with regard to some other fact. That statement was proved by the Investigating Officer and the same is Ex. PW-28/A. There is some ambiguity about the date written below the signature of the Police Officer, who recorded the statement, as the date can be read as 11.10.90 also. To remove this ambiguity, we have looked into the ziminis available with the learned Additional Advocate General and we find that this statement was recorded on 11.11.90 at 10.30 a.m. Thus, the testimony of the …9… witness about the aforesaid alleged dubious conduct of respondent Bhupinder Kumar is itself dubious. 21. We also find from the record that PW-24 Onkar Nath, who used to visit the deceased and stay with him for days together, was also a suspect in this case. Police had been calling him for 15 to 20 days for interrogation regularly. The fact suggests that the police did not have any definite lead to follow and that it arrested the present respondents and challaned them, on suspicion. 22. For the foregoing reasons, we see no merit in the appeal. The same is, therefore, dismissed. ( Surjit Singh ), J May 9, 2008(sd) ( Surinder Singh ), J