IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 342 of 1997. Decided on: 29.6.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Dogru Ram … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Himat Negi, Advocate vice Mr. Ajay Sharma, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 17.5.1995, passed by the learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 9-K/VII/95, acquitting the respondent-accused for the alleged offence, under Section 302 IPC. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. Prosecution case is that on 16.4.1994 at about 3.30 p.m., PW Hoshiar Singh, son of Nand Lal, resident of Wagnu, Pargana Udaipur, Police Station, Chamba made a report at Police Station, Kangra to the effect that he for the last about 1½ months 1 Whether reporters of the local papers may be allowed to see the judgment? 2 was working for sawing of wood for contractor Joginder Singh at Bohar Kuwalu within the local limits and jurisdiction of Police Station, Kangra. The accused and one Lachhman residents of village Kud, Pargana Himgiri were also working for the said contractor. They were living together in a plastic tent which they had pitched in the jungle of Bohar Kawalu. Wife of Lachhman alongwith three children was also living with them there. PW Hoshiar Singh was putting up at village Jhurdu. The work of sawing of wood was over on 15.4.1994. All had decided to return to respective homes on 16.4.1994. PW Hoshiar Singh on the morning of 16.4.1994 left for village Jhurdu alongwith his luggage. He reached Bohar Kawalu at about 8.00 a.m. He kept his luggage at a place about 100 yards away from the tent of Lachhman. He accompanied by Shafi Mohammad and Feroz Din went towards the tent of Lachhman. None was present there. There were blood stains all over. In the meantime Smt. Hiri Devi, wife of Lachhman also reached there. He asked her regarding the whereabouts of Lachhman. She told him that on the previous night her husband Lachhman and the accused had taken liquor together. She was given beatings by her husband as a result of which she alongwith her children had taken shelter in the tent of Feroz Din. A search was thereafter carried out for Lachhman. During the course of such search the dead body of Lachhman was recovered wrapped in a quilt in a drain about 100 yards away from the tent of Lachhman. The accused was found to have absconded. 4. On the basis of this report a case under section 302 IPC came to be registered at Police Station, Kangra vide FIR No. 3 160 of 1994. During the course of investigation it was revealed that the accused had killed deceased Lachhman with an axe and thereafter had concealed the dead body in a Nullah after wrapping the same in a quilt. The weapon of offence, namely the axe was recovered from the spot. A case of murder was thus found against the accused. A search for the accused was carried out, who was absconding since after the occurrence. He was arrested on 17.10.1994. After completion of investigation, he was challaned and sent up for trial. The case was committed to the court of sessions. 5. The accused was charged for the offence under Section 302 IPC to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined as many as 17 witnesses. However, accused-respondent in his statement under Section 313 Cr.P.C. has denied the prosecution case. 7. The dead body of victim Lachhman was examined by PW-1, Dr. M.S. Zutshi on 17.4.1994 and made the following observations: 1. Post mortem staining fixed on back of chest, abdomen and hips. 2. Rigor mortis had passed off on all the joints. 3. An incised wound above the thoiroid cartilages extending from anterior boarder of left sterno- mostoid to within the right sterno-mostoid 4-5 inches long 2 inches wide and vertebra deep, cutting the trachea, eossophegatus and all nasal blood vessels in the line of the wound. 4. Plenty of clots were present. 4 5. A reddish blue deep abrasion across the abdominal wall from LIF to the right lumber region 14 inches long and of varying breadth. 6. Multiple deep abrasion right mid axillary region from 4th intercostern space downward and its colour was as above. 8. PW-2 Smt. Hiri Devi, wife of deceased, has stated that accused was staying with her and her husband in the same tent at Bohar Kawalu and was having meals with them. On the relevant day the accused and her husband had returned home together at about 8.00 p.m. and both were drunk. Her husband asked for food and she told that only ‘Chapaties’ were available as no vegetable was cooked since the same was not available at home. The accused went away and returned with more liquor after half an hour. At that time, her husband was quarrelling with her and started beating her. The accused also instigated him to give more beatings to her. In such situation, PW-2 Smt. Hiri Devi took her children, went away and took shelter in the tent of Feroz Din and stayed there for the night. On the following morning, PW-2 Smt. Hiri Devi sent her daughter to find out about her husband. Her daughter informed her that none was present in the tent and that there were blood stains all over. PW-2 further stated that Hoshiar Singh, Shafi, Nazir and Uttam by following a trail of blood stains were able to discover the dead body of her husband in a Nullah wrapped in a quilt and buried under the stones. 9. PW-3 Km. Thakri Devi, daughter of the deceased, has stated that her father quarreled with her mother and her mother took the children to the tent of Feroz Din where they stayed for the night. At the instance of PW-2 when PW-3 went to enquire about 5 her father, she noticed that nobody was in the tent and blood stains were seen by her all over the floor of the tent. 10. PW-4 Hoshiar Singh is the person who after having recovered the dead body had made the report Ex. PD to the police. PW-5 Parkash Chand was joined in the investigation of the present case in whose presence Axe Ex.P-1, quilts Ext. P-5 and Ex. P-6 and clothes Ex.P-7 to Ex. P-10 were recovered and taken into possession by the police. 11. PW-6 Feroz Din has stated that the wife and children of the deceased had stayed in his tent on the night of 15.4.1994. At that time, PW-2 Hiri Devi wife of deceased was having an injury on her head. PW-2 Hiri Devi told PW-6 Feroz Din that she was given beating by her husband. According to PW-6 Feroz Din, PW-3 Km. Thakri Devi daughter of the deceased was sent to enquire about the whereabouts of the deceased and the accused. On return, she reported that none was present in the tent and stains of blood were present all over. Shafi and Nazir sons of PW-6 were also sent and on return they also stated the similar facts. However, shoes of the deceased were lying in the tent. PW-6 has stated that on inquiry, it was found that the accused was seen running after the bus in the early hours of the morning. 12. PW-7 Ran Singh, Pradhan of Gram Panchayat, Dadholi was joined in the investigation and had witnessed the recovery of quilt Ex.P-6, clothes Ex. P-7 to Ex. P-10. PW-8 Kartar Singh, Lambardar has stated that on 16.4.1994 at about 9.00 a.m., PW Hoshiar Singh along with three other persons had come to him 6 and reported that one person was murdered as such Hoshiar Singh was advised to report the matter to the police. 13. PW-9 Joginder Singh was an employee of the liquor vend at Bohar Kawalu who has stated that on 15.4.1994 at about 8.45 p.m. the accused had come to him to purchase liquor and on the following morning at about 7.20 a.m., he had seen the accused running after the bus to catch the same. However, despite endeavour, the accused could not catch the bus. PW-9 did not know about the whereabouts of the accused thereafter. 14. PW-10 Kikar Singh has stated that he had employed labour including the accused and the deceased for sawing of wood and they worked for three days. On settlement of accounts, the share of the accused was 1/3rd and he was paid Rs. 272/-. At about 6.45 a.m. on 16.4.1994, the accused intended to catch the bus of 7.15 a.m.. PW-11 Constable Mir Chand has taken the photographs Ex.PH/1 to Ex.PH/9. PW-12 Constable Krishan Lal, PW-13 Rachhpaul Singh, PW-14 Jai Chand Patwari, PW-15 Constable Dev Raj, PW-16 HC Pritam Singh and PW-17 Inspector Dilbag Singh have discharged their duties assigned to them and have done their work and narrated the story while appearing in the witness box. 15. On scrutiny of prosecution evidence, there is no direct evidence to link the prosecution case. Therefore, the prosecution has failed to prove its case on the basis of circumstantial evidence. Undisputedly, the deceased and the accused were engaged for sawing of wood at Bohar Kawalu. The deceased was living with his wife and children. In order to prove that the accused was living with 7 the deceased in the same tent, the prosecution has taken the help of the statements of PW-2, PW-3, PW-4 and PW-6. However, PW-2 in her cross-examination has stated that the accused was living separately in the tent. PW-3 Km. Thakri Devi daughter of deceased has not stated that the accused was living in the same tent. PW-3 has only stated that the accused was living in the same village. PW-4 Hoshiar Singh has stated that the accused was living in the same tent with his family. PW-6 Feroz Din has also stated that the accused was living with deceased in the same tent. However, PW-2, wife of the deceased and PW-3, daughter of the deceased, are the best persons to indicate as to whether the accused was living with the deceased in the same tent or not, but from the statements of PW-2 and PW-3, nothing has revealed that the accused was living with the deceased in the same tent. As such, an inference could be derived that the accused was living separately. The testimony of PW-4 and PW-6 cannot be relied upon to the extent that the accused was living with the deceased in the same tent. It is also not proved that the accused was living with the deceased on the fateful night. 16. In view of the testimonies of PW-2 and PW-3, it could be inferred that on the night of 15.4.1994 at about 8.00 p.m., the deceased and the accused came to the tent of the deceased in a drunken state and as per testimony of PW-2, accused went to bring more liquor and had returned after about half an hour with the bottle of liquor. However, during that time her husband was quarrelling and she has been given beating and thereafter, she left with children and stayed in the tent of PW-6 Feroz Din leaving the 8 deceased and the accused in the same tent. PW-9 Joginder Singh has, however, stated that the accused had purchased the bottle of liquor from his shop on 15.4.1994 but surprisingly, PW-17 the Investigating Officer, did not find any bottle of liquor, empty of rull, at the spot during the course of investigation. The entire case of the prosecution has based on one main aspect that the accused and deceased were in drunken state and accused brought more liquor and consumed the same and in the drunken state, he had committed the offence. In such situation, at least, the liquor or empty or full bottle containing liquor could have been recovered from the spot. 17. As per testimony of PW-1 Dr. M.S. Zutshi viscera was sent for chemical examination. However, nothing was brought on record to show that the viscera contained liquor. Whereas, PW-1 has indicated that there were traces of liquor in the viscera but the quantity could not be indicated by PW-1. In order to link the offence and act of killing by the accused, it is necessary to see that the work was over on 15.4.1994 when the accounts of the accused were settled and accordingly he received money on 16.4.1994. From the testimonies of PW-9 Joginder Singh and PW-10 Kikar Singh, nothing has been divulged that the account of deceased was settled or not and whether the deceased has received any money towards labour work or not and prosecution has endeavoured to prove that the accused was leaving in the monrning of 16.4.1994. In view of the testimony of PW-9 Joginder Singh, who allegedly has seen the accused running on 16.4.1994 and in view of the testimony of PW-10 Kikar Singh who has stated that Rs. 272/- 9 towards the labour charges was paid to the accused on 16.4.1994 at 6.45 a.m. but no prosecution witness has ever described that both accused and deceased remained in the tent of the deceased and thereafter, it was the accused who had assaulted the deceased. PW-4 Hoshiar Singh has stated that he was working with Forest Department at Bohar Kawalu for sawing wood and the deceased and accused were also working with him. PW-2 Hiri Devi wife of the deceased too was employed by Shri Des Raj Contractor at Chamba. However, PW-2 has not stated that her husband and accused were engaged by PW-10 Kikar Singh. If deceased and accused were not engaged as labourers for sawing wood by PW-10 Kikar Singh, his testimony that the accused came to his house for taking labour charges on the morning of 16.4.1994 stands belied. 18. Prosecution could not bring any material on record to prove about the motive of the accused and the instance which could be cause of accused to take away the life of deceased. The annoyance if any of deceased with the accused could be seen from the conduct of PW-2 Hiri Devi as both of them came in a drunken state on 15.4.1994 to the tent of the deceased and since both were not offered food except only dry ‘Chapaties’ that too without vegetable and that could have been the cause of deceased to quarrel with PW-2 and beating. However, no instance or motive or occasion was indicated that the accused was angry with deceased. Nothing has been indicated that dispute in distribution of share of labour charge was involved. Nothing has been brought by the prosecution as to how the accused could be said to be in motive and responsible in killing the deceased so much so, when contrary 10 to the version of PW-4 and PW-6, the accused was not said to be living with the deceased in his tent along with the family members of the deceased as per the version of PW-2 and PW-3. In such circumstances also, there could not be any cause for any difference or any point of anger that the accused could have been encouraged to take the life of the deceased. 19. In our considered view, the complete chain is missing, circumstantial evidence led by the prosecution has not been able to link the offence with the accused and prosecution has failed to bring home the guilt to the accused and has also failed to prove its case beyond any reasonable doubt. There is no scope for any interference with the judgment of the trial Court. Therefore, the criminal appeal being without any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 29, 2010. (cr)