1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.720 of 2000 Decided on November,26, 2010 State of H.P. …Appellant. VERSUS Pankaj @ Babbu & ors ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the Respondents: Mr. Surinder Sharma, vice counsel R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 21.8.2000 passed by learned Addl. Sessions Judge, Shimla in Sessions Trial No. 32-S/7 of 1999, thereby acquitting the respondents/accused for the offences under Sections 302, 120-B, 201, 404/34 of Indian Penal Code. 2. The prosecution case is that Raj Kumar PW-2, a resident of Krishna Nagar, Shimla, saw a dead body lying in the nullah on 15.6.1999 and accordingly informed to the Sadar Police Station. Police officials visited the spot and body of the deceased Whether the reporters of the local papers maybe allowed to see the judgment? 2 was identified by Raj as her husband Zulfikar. As per statement of Raj, under section 154 Cr.P.C, Ex PW-9/A, deceased Zulfikar was her husband and was working as Chowkidar in Chalit Day School, Shimla and the deceased on 13.6.1999 was present in her house and took meal with her and after seeing the movie went to the bed and at about 10.30 PM her husband told her that he has to go somewhere. However, she persuaded him not to go outside and made him to sleep. After sometime, somebody knocked at the door, however, she did not respond and kept silent. However, nobody knocked the door thereafter and at about 5.00 PM when she woke up, did not find her husband on the bed. Thereafter she endeavoured to ascertain the whereabouts of her husband and on 15.6.1999 at about 8.30 AM, when she came back after leaving her children to school, she heard some noise that some dead body is lying in the nearby nullah. As stated by Raj, her husband was in the habit of keeping an amount of Rs. 3000/- to Rs. 4000/- in his pocket and used to wear two golden rings and one wrist watch and while identifying the dead body of the deceased, the golden rings and the wrist watch he used to wear was also found missing. As such, after investigation, FIR Ex PW-9/B was registered and accordingly tatima Ex PW-8/A was prepared and inquest reports Exts PW-6/B and PW-6/C of the spot were prepared. The body was sent for postmortem. PW-6 Dr. H.S. Sikhon conducted the postmortem. As per opinion of the doctor, the death of the deceased occurred “due to asphyxia as a result of ligature strangulation homicidal in nature.” 3 3. After completion of the investigation, accused/respondents were charged of the aforesaid offences. 4. In order to prove its case, prosecution has examined as many as 13 prosecution witnesses, whereas through their statements under Section 313 Cr.PC accused denied the same. 5. On analysis of the prosecution witnesses and materials on record, we notice that there is no direct evidence available in the case and case of the prosecution is mainly based on circumstantial evidence and the prosecution has endeavoured to prove the involvement of accused Raj, wife of deceased as she had motive to get rid off the deceased as she was in love with accused Pankaj and in order to prove the love affairs between accused Raj and Pankaj accused, prosecution has relied upon the love letters Ex P-6, allegedly written by Raj to accused Pankaj. The involvement of accused Pankaj was also based on the rope Ex P-8 used for strangulating the deceased. The wrist watch and golden rings were recovered at the instance of accused Raj, wife of deceased and another golden ring of the deceased Ex PW-10 was recovered at the instance of accused Rajesh Kumar. 6. The prosecution case is also referring the disclosure statement of accused Raj made under Section 27 of the Indian Evidence Act as Ex PW-11/C in presence of Nirmal Kumar PW-11, wherein she disclosed that two golden rings and one wrist watch recovered was identified by PW-5 Saroj, who had mortgaged the same with the deceased few days earlier. Wrist watch and golden rings were exhibited during trial of the case as Exts P-2, 3 and P-4 respectively. Similarly also, accused Pankaj 4 was said to have made disclosure statement as Ex PW-11/B, disclosing that a piece of rope tagged with two wooden pieces which he has concealed in a Dhara near bus stand and was recovered vide recovery memo Ex PW-11/A in the presence of PW-11 Nirmal Kumar and one Raj Pal. Accused Raj Kumar similarly also said to have made disclosure statement Ex PW-11/E that he had kept a golden ring Ex P-10 in a pocket of his pant in the house of his brother and accordingly golden ring was recovered from accused Rajesh Kumar vide recovery memo Ex PW-11/D. Accused Pankaj is said to have also made a disclosure statement Ex PW-11/H that the love letters ( 18 in numbers) were concealed by him in an Almirah in IGMC, Shimla in room No. 209. Consequently, love letters Ex P-6 ( 18 in numbers) were recovered at the instance of Pankaj vide Ex PW-11/J. 7. On the basis of recoveries so made, the prosecution has endeavour to prove its case. The testimonies of Shamin Deen (PW-1) Rajesh Kumar (PW-3) and Paramjit Singh (PW-4) reveal that the conduct of accused Raj, wife of deceased was suspicious. According to PW-1, she did not inform anyone about the missing of the deceased and she was said to have fled away with the accused Pankaj to Amritsar in the year 1998 and deceased also used to tell PW-1 occasionally that accused Pankaj and Raj were indulging in illicit relation. PW-1 also identified wrist watch Ex P-2 and the golden rings Exts P-3 and P-4 at the instance of accused Raj. 8. In view of the testimony of Rajesh PW-3, deceased did not turn up to work in slaughter house. Paramjit 5 Singh PW-4 has also stated that on 14.6.1999 deceased did not come to his shop. He enquired from Raj accused, wife of the deceased as to why deceased was not turned up. Accused Raj said that he was not feeling well as such he could not go to the shop. 9. Rope Ex P-8 was sent to the chemical examiner. Chemical examiner vide report Ex PW-13/H has indicated that some stains of blood were though found on it, but these were not sufficient for conducting any further analysis. The blood stains were not even found to be of human blood. The group of the blood stains also could not be ascertained. In those circumstances, it could not be connected that the rope Ex P-8 was used for strangulating the deceased Julfikar. Therefore, only recovery of rope Ex P-8, at the instance of accused Pankaj, is not sufficient and conclusive to hold Pankaj guilty of the commission of alleged offence, whereas recovery of rope Ex P-8 was made from open dhara, which was accessible to all. Therefore, statement under section 27 of the Indian Evidence Act regarding recovery of rope Ex P-8 is not helpful. Ex P-6, alleged love letters ( 18 sheets) written by accused Raj to Pankaj also could not be proved that these letters were written by accused Raj, as accused Raj in her statement under section 313 Cr.PC has categorically denied having written all these letters and has also denied that she had any love affair with the accused Pankaj. No opinion of hand writing expert or any technical report of any expert was brought to connect these letters to have been written by Raj accused. As such, the love letters also could not be conclusive to 6 connect the accused Pankaj with guilt. So far recovery of golden ring Ex P-10 at the disclosure of Rajesh Kumar, nothing was brought on record that the deceased was wearing those golden rings Ex P-10 and it was in possession of deceased till he was murdered. 10. Recovery of wrist watch Ex P-2 and golden rings Exts P-3 and P-4 was alleged to have been made at the instance of accused Raj. Admittedly, accused Raj was the wife of deceased and she was living in the same house along with the deceased where recovery of Exts P-2, P-3 and P-4 was effected. However, there is no evidence on record to conclude that the deceased was in fact having exclusive possession of Exts P-2, P-3 and P-4 at the time of commission of his murder and that these articles were removed from his dead body by accused Raj with an intention to misappropriate the same. Rings Ex P-3 and P-4 are lady rings, which were mortgaged, as per the prosecution version by PW-5 with the deceased and, thus, it can safely be concluded that the deceased might have kept the same with his wife accused Raj and, therefore, this circumstance of recovery of Exts P-3 and P-4 from the possession of accused Raj is not a conclusive circumstance against her for having committed murder of deceased. Similarly, recovery of wrist watch Ex P-2 is also not a conclusive circumstance, as the accused was living in the same house with the deceased and there is no direct or indirect evidence available on the record that the deceased was seen by any person wearing the wrist watch Ex P-2 on the fateful night. 7 11. On analysis of the prosecution witnesses and materials on record, we notice that learned Addl. Sessions Judge, has rightly arrived at conclusion that the circumstantial evidence was not conclusive to make a complete chain and link the accused with the offence and that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view in the facts and circumstances, prosecution has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. The criminal appeal, being devoid of merit, is accordingly dismissed 12. The bail bonds, furnished by the accused/respondents, are discharged. ( R.B.Misra ), J. 26th November, 2010 (Surinder Singh), J. (sl)