IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 358 of 1996 Date of Decision : March 15, 2010 State of H.P. …Appellant Versus: Yudhbir alias Bittu & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht. Dy. A.G. For the respondents : Ms.Vidushi Sharma, Advocate. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 31.5.1995 delivered by the learned Sessions Judge, Chamba, in Sessions Case No. 22 of 1994, whereby the accused No.1 & 2 have been acquitted of having committed offences punishable under Sections 201 & 302 read with Section 34 of the Indian Penal Code, whereas accused No.3 has been acquitted of having committed an offence punishable under Section 176 IPC. The undisputed facts are that on 30.1.1994 vide report Ext.PA, a complaint was lodged by PW-1 Jamal Din with 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the police. In this complaint he stated that his son Yakub alias Kaku had gone to Sandhara to attend some music party but did not return. In the evening, he had searched his son and during this search he was informed that Yakub had not actually attended the music party at Sandhara and in fact he had been seen near the graveyard. In the complaint, it is also mentioned that accused No.1 Yudhbir alias Bittu was accompanying the deceased at that time. On the basis of this report, investigation was carried out by the police and during the course of investigation, according to the prosecution it found that the deceased had been done to death by respondents No.1 & 2. It is also alleged that after killing the deceased, respondents No.1 & 2 had stayed at the night at the house of respondent No.3 and had confessed to him about having committed the crime. Since respondent No.3 did not disclose this fact to the police, he was charged with having committed an offence punishable under Section 176 IPC. On 1.2.1994 the dead body of Yakub was recovered from the river Ravi a few meters from the bank stuck between the stones. The case against the accused is based on circumstantial evidence. The first circumstance alleged by the prosecution is that the deceased was last seen with accused No.1. PW-7 Dharam Singh states that on 26.1.1994 he along with several other persons including PW-8 Hem Raj, PW-9 3 Manjeet Singh and PW-10 Des Raj had gone to village Chuhan where at about 6.30 p.m., these persons purchased and consumed liquor at the liquor vend. There PW-7 Dharam Singh had an altercation with some person but he could not identify the said person. Then these persons decided to go to village Sandhara to attend a music party. On the way they met the deceased along with one other person near the graveyard. He has stated that the other person was Bittu. They had asked the deceased and Bittu to accompany them to the party but they declined and said that they would come later. This witness was declared hostile by the prosecution. In cross-examination he had identified accused No.3 as the person who was accompanying the deceased and states that he could not identify the person with whom he had an altercation but was told by the other person that the name of the person is Pink. PW-9 turned totally hostile. He however admits that when he and PW-7 along with other persons was going to village Sandhara to attend the party, they met the deceased along with one person. However, he resiled from the earlier statement made to the police and according to him he could not identify the person who was accompanying the deceased. According to him, in his presence no altercation took place between PW-7 Dharam Singh and any other person at the liquor vend. He also denied having met the deceased or Bittu on the way when they were going to Sandhara. PW-10 has corroborated 4 the statement of PW-7. According to him, they met the deceased along with accused No.1 at about 8.00 p.m. near the graveyard. Accepting the statements of PW-7 & PW-10 and discarding the statements of PW-8 & PW-9, the only thing which is proved is that the deceased and accused No.1 were seen together near the graveyard. This is the only link, if at all, it has been proved by the prosecution. The second link which is alleged is the statement Ext.PF, which is stated to be that of accused No.3 and was recorded by PW-12 Narain Singh, Pradhan of the Gram Panchayat. According to this witness, a few days after the recovery of the dead body of Yakub, accused No.3 Shakti Singh made a statement before him which was recorded on the pad of the Gram Panchayat and this statement is Ext.PF. As per this statement, Shakti Singh disclosed to PW-12 that on the night intervening 26th & 27th March, 1994, accused No.1 & 2 had slept in his house. According to him, it was disclosed to him by Shakti Singh that on the day following 26.1.1994, he had asked Yudhbir and Pink who had slept the night in his house as to why they had not gone to Sandhara to attend the music party. According to Shakti Singh, Yudhbir told him that there had been a quarrel between Yudhbir and him and then Yudhbir had killed Yakub and concealed his dead body in the river. Thereafter Yudhbir and Pink had come to his house and slept there in the night. This statement Ext.PF is purported to have been recorded on 5 14.3.1994 more than six weeks after the dead body was discovered. By this time, the police had already started investigating the matter. Even if Shakti Singh had come to the Pradhan of the Gram Panchayat to make a statement he should have taken him to the police, who could have recorded the statement and then the confession, if any, made by accused No.1 & 2 to accused No.3 could have been treated to be an extra judicial confession. When the Pradhan was recording the statement, he would have in normal course got the signatures of the maker of the statement on the same. He admits that in other proceedings he always obtained the signatures of the person making the statement. There is no valid explanation why he did not do so in this case. This statement does not inspire confidence at all. From the statement of PW-12, it is apparent that the people of the area were not satisfied with the manner in which the investigation was being carried out by the police and this witness had been repeatedly requesting the superior officers to change the Investigating Officer. There is no plausible explanation as to why accused No.3 made a statement to PW-10. He could have been easily taken to the police for recording his statement. Secondly, he could not also explain as to why the signatures of this witness were not taken on the so called statement. It would be extremely dangerous to rely on the sole statement of PW-10 to 6 not only convict accused No.3 but further to rely upon his self exculpatory statement and convict accused No.1 & 2. If accused No.3 had appeared as a witness for the prosecution stated that the confession had been made to him by accused No.1 & 2, the situation may have been different. But here the facts are entirely different. Another important factor is that how and when accused No.2 joined the deceased and accused No.1. Even if the statements of the prosecution witnesses specially PW-7 & PW-10 are accepted to be correct that they met the deceased and Bittu near the graveyard, there is no evidence whatsoever to show at which stage accused No.2 Narender Singh alias Pink joined the other two persons. In the statement of PW-12, it has also come that initially the police was investigating the crime only against accused No.1, but it is at the instance of the local people that the other accused were implicated in the crime. There is no motive ascribed for the accused by the prosecution. The prosecution version is that the accused and the deceased were drinking together and probably some fight may have taken place. There was admittedly no enmity between the deceased and accused No.1, since they were drinking together from the evening. Even as per the prosecution version they were going together to the exclusion of others which also casts a doubt on the prosecution version. 7 The two links in the prosecution case; (i) last seen; (ii) the so called statement of accused No.3, are extremely weak links and no conviction can be based on such evidence to convict the accused. These links do not lead to the irresistible conclusion that it is the accused alone who committed the crime. In view of the above discussion, we are of the view that the learned trial Court rightly acquitted the accused. We find no merit in the present appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ), Judge. ( Sanjay Karol ), Judge. March 15, 2010. (rana)