IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 513 of 1999 Date of Decision : October 21, 2010 State of H.P. …Appellant. Versus: Partap Singh & another …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. Rajesh Mandhotra, Dy. A.G. For the respondents : Mr. Chaman Negi, vice Mr. Anup Chitkara, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 5.8.1999 delivered by the learned Addl. Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No. 5-N/7 of 1999, whereby the accused have been acquitted of having committed an offence punishable under Section 302 read with Section 34 IPC. 2. The undisputed facts are that deceased Sukh Devi was throttled and murdered on 22.3.1998. PW-1 Dhanbir Singh son of the deceased was working at village Badripur with one Gurmail Singh at the relevant time. According to him, at about 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 8.00 a.m. on 23.3.1998, one Mola alias Molu Ram came to him and told him that he is required to go to his house immediately. He, therefore, started for his village and when he reached Paonta Sahib, said Mola told him that his mother Sukhdevi had died. He then boarded the bus for village Chandela and reached there at about 11.30/12.00 noon. He then saw the dead body of his mother. A plastic bag, a black piece of cloth (Patka) and a ‘chilam’ were lying near the cot. According to this witness, these articles did not belong to him or his mother, but they belonged to accused Partap Singh. He further states that when he reached the village he did not himself go to the police station, but directed Sunder Singh and Lachhman to go to the police and lodge report and thereafter Sunder Singh lodged report, which led to the registration of the FIR. Further, the case of the prosecution is that thereafter accused Partap Singh was associated and while he was in custody, he made a disclosure statement to the effect that he had stolen a stereo from the house of the deceased, which he had kept in his house. This stereo was allegedly recovered vide memo Ext.PW-1/B from the house of the accused. The body of the deceased was sent to the Doctor and the post mortem was conducted on the same and after examination the Doctor opined that the deceased had been throttled. 3 3. On the basis of the aforesaid evidence, a challan was filed against the accused. They pleaded not guilty and claimed trial. After trial, they were acquitted. Hence, the present appeal. 4. We have heard Mr. Vivek Thakur, learned Addl. Advocate General on behalf of the State and Mr. Chaman Negi, Advocate appearing for the respondents. 5. As far as accused No.2 is concerned, it may be stated at the outset that there is no evidence whatsoever to link him with the crime and not a single witness has spoken a word against him. 6. As far as accused No.1 is concerned, the case against him is based on circumstantial evidence and the circumstances are (i) that the deceased died an un-natural death; (ii) that the patka, bag and chilam of accused Partap Singh were found next to the cot of the deceased and (iii) that the stereo was recovered from the house of accused Partap Singh. 7. As far as the first circumstance is concerned, there is no manner of doubt that the deceased was strangulated and murdered. This by itself however does not show who had murdered the deceased. 8. Coming to the recovery of patka, chilam and the bag, according to PW-1, these recoveries were made on 23.3.1998 itself, whereas according to PW-2 Udai Singh, these recoveries were made on 25.3.1998. Even the seizure memo 4 Ext.PW-1/A clearly shows the date of recovery as 25.3.1998, which totally shatters the prosecution case. If PW-1 had identified these articles as not belonging to his mother or himself and had further disclosed to the police that these articles belonged to accused Partap Singh, then these articles should have been recovered on 23.3.1998 itself and there is no explanation why these were recovered on 25.3.1998. 9. Further, more, even if it is assumed that these articles were recovered from the room of the deceased, it was for the prosecution to further prove that these articles belonged to the accused. Other than the bald statement of PW-1, there is no other material on record to show that these articles belonged to the accused. It is not denied that the patka, chilam and the bag bear no specific identification marks to link them to the accused. The recovered articles are of common use, which can be easily purchased from the market and merely because that they do not belong to the deceased or her son does not mean that they belong to the accused. In fact, PW-2 has clearly stated that he does not know to whom the chilam, patka and bag belong. Therefore, this circumstance has not been proved in accordance with law. 10. The third circumstance relied upon by the prosecution is the recovery of the stereo of the deceased, which was allegedly recovered from the house of accused Partap Singh. According to PW-1, he had noticed that this tape recorder was 5 missing on 23.3.1998 and had made a statement to this effect to the police. However, he was confronted with the statement Ext.PW-1/C dated 25.3.1998, wherein there is no mention of any tape recorder being missing from the room. The deceased and her son belong to a very poor strata of society. The deceased was living in a wooden shack and in case the tape recorder was missing, it would have been noticed by her son. 11. Even the recovery of the tape recorder from the house of the accused has not been proved. According to PW-1, on 28.3.1998, accused Partap Singh had made a disclosure statement and as a consequence of the disclosure statement, he had led the police to his house and got the tape recorder recovered and this tape recorder belonged to PW-1. This witness, however, clearly stated that when accused Partap Singh entered his house, it was only accused Partap Singh and the police who went inside the house and he i.e. PW-1 did not enter the house. He also states that no other person except accused Partap Singh and the police were present when the recovery of the tape recorder was effected and this tape recorder was taken to the house of PW-5 Anita Chauhan and no one else was the witness to the recovery of the said tape recorder. 12. PW-5 Anita Chauhan is the Pradhan of the village. According to her, on 28.3.1998, the police came to her house and she accompanied the police to the house of accused Partap Singh at village Amboya. Thereafter, the accused took the police 6 inside the house and got recovered a tape recorder which was identified by PW-1 Dhanbir Singh as belonging to him. The tape recorder was taken into possession vide memo Ext.PW-1/B, which was witnessed by her and by Madan Kishore. She further states that she did not enter the house of accused Partap Singh and remained standing outside. She also stated that she had seen the said tape recorder in the house of accused Partap Singh for about two years before the date of recovery. She was thereafter cross-examined by the prosecution, but to no avail. 13. PW-9 Madan Kishore is the other witness to the recovery of the tape recorder. He has also not supported the prosecution case. According to him, by the time he was associated with the investigation, the tape recorder had already been recovered by the police and he was called to the house of PW-5 Anita Chauhan and asked to sign the seizure memo. Therefore, the prosecution has miserably failed to prove that the tape recorder either belongs to Dhanbir Singh or that it was recovered from the house of accused Partap Singh. As such, the prosecution has failed to prove the third circumstance relied upon by it. 14. In addition, we may also mention that the prosecution has failed to prove what was the motive for the crime. It appears that the prosecution wanted to cross-examine PW-3 & PW-4 to prove the motive, but these witnesses have not supported the prosecution case. In fact, the version of the police 7 does not give any indication of the motive of the crime. These witnesses have not supported the prosecution version and therefore, the prosecution has also failed to prove that the accused persons went to the house of the deceased. 15. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. October 21, 2010. (rana)