IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 428/1998 Reserved on: 17.5. 2010 Decided on:2.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Bhadru alias Bholu. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr. Ashwani Kumar Sharma Advocate with Ms. Madhu Sharma, Advocate ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 18.2.1998 of the learned Sessions Judge, Mandi rendered in Sessions Trial No.15 of 1997, whereby respondent, who was charged with and tried for offence punishable under section 302 of the Indian Penal Code, has been acquitted. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Case of the prosecution, in a nutshell, is that Narpat son of Jatru (PW-1) was working as a contractor. He was constructing house of Kusum Chand (PW-6). He had also employed with him Dhandev, Goverdhan, Tawaru and accused. Narpat had taken another contract for construction of the house of Surat Ram on 16.12.1996. He was paid Rs. 1,000/- as advance. Narpat left Kullu in the company of accused Bhadru. Accused killed Narpat on the way to rob him of Rs. 1000/-. Accused returned back to Pandoh and he hired a van at that place to reach back Kullu. The dead body of Narpat was found by his daughter Reena on the morning of 18.12.1996 at about 7.00 A.M. It was lying near the Gharat of the deceased. Pradhan Jai Kishan was informed. Statement of PW-1 Jatru was recorded under section 154 of the Code of Criminal Procedure, vide Ex.PW-1/A. In sequel thereto FIR, Ex.PW-10/A was recorded at Police Station, Gohar. The dead body was sent for postmortem. The postmortem was conducted by PW-16 Dr. Rakesh Kumar on 18.12.1996 at 4.00 P.M. Accused was arrested. The matter was investigated by the police and the challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. The trial court acquitted the respondent-accused. Hence, this appeal by the State. 3 3. Prosecution examined as many as sixteen witnesses in support of its case. Accused was examined under section 313 of the Code of Criminal Procedure. His defence was of simpliciter denial. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent- accused. 5. Mr. Ashwani Sharma has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. Learned trial court has recorded the following circumstances on which the prosecution relied to secure the conviction of the accused: a) “The deceased was last seen in the company of accused Narpat; b) Currency notes which were advanced by Surat Ram (PW-7) to deceased were recovered from the wife of the accused and one of the currency notes, had blood stains; c) The eyes of the accused were red and swollen on the next day of the death of Narpat; d) Two empty liquor bottles allegedly consumed by the accused and the deceased were recovered at the instance of accused which contained finger prints of the accused; 4 e) The pocket of the shirt of the deceased was torn; f) Ten injuries were found on the person of the deceased; g) The dead body was found far away from the path leading to the house of the deceased; h) The accused was not present during the last rites of the deceased; and i) The father of the deceased suspects the accused.” 8. PW-1 Jatru is the father of deceased Narpat. He stated that Narpat was married and was having four children. He was a contractor and also used to work as a mason. On 3rd of Posh last year, he was living in his house alongwith his wife. His grand-daughter, Reena called him and told that he should immediately come to Gharat where her father has been killed. He reached the spot and found the dead body of his son Narpat lying near the Gharat on the side of the Khud. He sent his grand-daughter to call the Pradhan from the village. Police was also informed on telephone. Police reached the spot. His statement was recorded by the police as Ex.PW-1. He stated that accused was working as a labourer with his son at that time and he has suspicion that the accused has committed murder of his son. Age of his daughter was 17 years. He admitted in his cross-examination that he was not aware of any enmity between deceased and accused but according to him there 5 must be something that is why accused killed his son. His sister is married to real brother of accused. According to him, there was no litigation. 9. PW-2 Khem Singh has stated that on 17.12.1996, he loaded maize in a small truck No. HIE-717 at Chhapran and was going to Baggi via Pandoh. He met Narpat and accused Bhadru at about 10.00 P.M. near Sarandha Nallah. He did not talk to them. He came to know only on 19.12.1996 that Narpat has been killed. In his cross- examination, he narrated that he reached back at about 12.00 in the midnight. Chhapran is about 30 kilometers from Baggi via Chail Chowk. The distance between Baggi and Chhapran via Pandoh is more than 50 kilometers from Pandoh. He admitted that there is a check post at Chail Chowk but the police did not take into possession log book in his presence. He further stated that there were four persons in the truck, including driver and conductor. He did not know the names of the driver and conductor. He further admitted that the vehicle was not stopped when he saw Bhadru and Narpat. He could not disclose the name of the persons, who told him about the death of Narpat. He told the police about having seen Bhadru and deceased only on 17.12.1997. He disclosed this fact to the police in Police Station, Gohar. 10. PW-3 Maya Ram runs a Karyana shop at Angu Dobhi. According to him, Narpat had come on 17.12.1996 to 6 his shop at about 5.00 P.M. accompanied by Bholu Ram. He was also known as Bhadru. He knew Narpat and Bholu personally. Narpat purchased from him grocery worth Rs. 125/-. They left the place after sitting for sometime at about 5.00 or 5.30 P.M. They went towards Bazar. In his cross- examination, he admitted that Narpat was living near the shop and several persons used to live with Narpat, including Bhadru, Payaru, Dhandev and Goverdhan. 11. PW-5 is Achhar Singh. He was Vice President of Gram Panchayat, Sainj. In his presence, police took into possession, coat Ex.P-1, shirt Ex.P-2, Banyan Ex.P-3, which were lying near the dead body probably on the stone. He was joined in the investigation of the case. Police made inquiries from accused Bhadru. Accused disclosed to the police that he has kept one empty bottle of liquor, Una No.1, near stone and he had thrown another empty bottle of liquor, Una No.1, in the Surahi Khud Nullah and he could get those bottles discovered. According to him, statement was recorded in his presence and in the presence of Bup Singh. In his cross-examination, he admitted that Ex.PW-5/B was recovered after two-three days. According to him, no recovery of empty bottles was made in his presence and the accused had made statement to the police in Mandyali (local dialect). 7 12. PW-6 is Kusum Chand, who had employed Sh. Narpat as contractor to undertake foundation work of his house. In his examination-in-chief, he stated that on 17.12.1996, when he met the deceased Narpat and Bholu, Narpat told him that he has taken another contract for Rs. 9,000/- and he has received Rs. 1,000/- as advance from Surat Ram (PW-7). According to him, when he met Bholu at Pandoh, his eyes were red and swollen. In his cross- examination, he admitted that deceased Narpat had taken some liquor also. 13. PW-7 is Surat Ram. He had given contract of the construction of his house to Narpat. He gave Rs. 1,000/- as advance. The contract was for Rs. 9,000/-. In his cross- examination, he admitted that he did not remember or knew the number of notes, which were given to Narpat. Surat Ram was recalled and he deposed that Rs. 1,000/- was given by him, as advance. He gave 20 notes of Rs. 50/- denomination. 14. PW-8 is Laje Ram. According to him, Gangi wife of accused Bhadru handed over ten currency notes of Rs. 50/- denomination to the police. One of the notes had blood stain. In his cross-examination, he admitted that he did not know the date when his statement was recorded. In his cross-examination, he admitted that every day, Station House Officer had come earlier also when he made inquiries 8 from Gangi Devi and in turn she stated that accused had not handed over any money. He admitted that Station House Officer came again for the second time and told Gangi to hand over the notes or he will put the entire family in the lock up. He also admitted that Station House Officer told Gangi that she should sign the memo of recovery or he will put the entire family in the lock up. He further admitted that Saju Ram and Bhup Singh are relative of deceased. He also admitted that Narpat was son of his mother’s sister. 15. PW-9 is Bhup Singh. He was joined in the investigation by the police on 24.12.1996 at Sainj where he was present. The bottle was not capped which was taken into possession by the police vide memo Ex.PW-9/A alongwith other empty bottle which accused got discovered from Mandah Nullah vide memo Ex.PW-9/B, which was lying below the path under a big stone. He was also taken by the police to village Tarauni on 26.12.1996 when Gangi Devi, wife of Bhadru accused, handed over to police Rs. 500/- in 10 notes of Rs. 50/- denomination. He admitted in his cross- examination that the bottles were recovered from open place and adjacent to a path. He further stated that Bhardu had made statement in Hindi language and accused was illiterate. 16. The matter was investigated by PW-15 Bhim Singh, who was posted Station House Officer, Police Station, 9 Gagret from October, 1995 to June, 1997. The postmortem was conducted by PW-16 Dr. Rakesh Kumar. He found following injuries on the dead body of deceased Narpat: 1. “Multiple grazed abrasions on the forehead and temporal region redish brown in colour and of various size and shape. 2. Multiple abrasions on the bride of the nose and both nostrils, with contusions, pinkish in colour. 3. Two linear parallel abrasions on the left cheek over maxillary region directed obliquely downwards and posteriorly, redish brown in colour, 5 cm in length and 2 mm wide. 4. Linear abrasions over the right shoulder on the scapular region 7 cmx2 cm in size redish in colour with underlying contusion. 5. Grazed abrasions over right clavical region pinkish in colour oval in shape sized 2 cm x 1 cm. 6. Multiple contusions over the dorsal medial aspect of right forearm brownish in colour and of variable sizes. 7. Abrasions on the left side of the neck just above the mid claviculal region sized 1.5 cm x 2mm, brownish in colour. 8. Contusion over the left side of the chest sized 4 cm x cm pinkish in colour. 9. Abrasion over the abdomen near right side of umbilicus sized 2 cm x 0.5 cm with underlying contusion. 10 10. 10. Contusion over the left forearm dorse lateral aspect sized 2 cm x 1 cm brownish in colour. 11. The skin of the whole body is wrinkled due to cold.” 17. The probable time between injury and death was few minutes to few hours and between death and postmortem 12 to 24 hours. He issued post-mortem report Ex.PW-16/A. It is the entire evidence led by the prosecution. 18. PW-2 Khem Singh deposed, as noticed above, that he saw accused and deceased at about 10.00 in the night near Sarandha Nullah. He could not explain why longer route had been chosen by him. No explanation has been given by the prosecution, why the truck had gone via Pandoh when the distance between Baggi and Chhapran is 59 kilometers via Pandoh. He did not remember the names of the driver and conductor. He has admitted in his cross- examination that the truck did not stop. It is unbelievable that PW-2 Khem Singh could identify the deceased at night even if the truck was moving at the speed of 30 kilometer per hour. PW-7 has deposed that he had given Rs. 1,000/- to Narpat and Bhadru accused was also present. The presence of Bhadru was necessary at that time since he was working under Narpat. PW-3 has deposed that Narpat had come to his shop at 5.00 P.M. to buy grocery. He was living near his 11 shop alongwith persons, including Bhadru, Payaru, Dhandev and Goverdhan. PW-6 Kusum Chand had met Narpat and accused near Dobhi School at about 5.30 or 5.45 P.M. The evidence which has come on record only establishes that the deceased and accused were together till 5.30 or 5.45 P.M. Bhadru was supposed to be with deceased since they were working together. The statement of PW-2 Khem Singh does not inspire confidence. Thus, prosecution could not prove the first circumstance that the deceased was last seen in the company of accused. 19. The second circumstance could also not be proved by the prosecution. It has come in the statements of PW-8 Laje Ram and PW-9 Bhup Singh the manner in which the currency notes were recovered from Gangi Devi. It has also come on record that Gangi Devi was intimidated and threatened by the Station House Officer. PW-8 has also stated that Station House Officer had come earlier also when he made inquires from Gangi Devi. Gangi Devi told him that accused has not given her any money. In view of this, second circumstance could also not be proved by the prosecution. 20. Now, as far as the recovery of two empty bottles is concerned, the same were recovered from an open place. The place was easily accessible to general public. 12 21. There are contradictions in the statements of PW-5 Achhar Singh and PW-9 Bhup Singh. There are also contradictions whether the statement was made by the accused in Mandyali dialect or in Hindi language. According to PW-5 the statement was made by the accused in Mandyali and according to PW-9, he made the statement in Hindi. 22. Statements were recorded on 21.12.1996, however, recovery of the bottles were made on 24.12.1996. There is no explanation why the recovery has been delayed when the disclosure statements were already made. There were ten injuries on the person of the deceased. Dr. Rakesh Kumar (PW-16) in his cross-examination has admitted that the abrasions found were all grazed and it could not have been caused by beatings. However, it could have been caused by fall on bushes or fall on rough surface. 23. The circumstance that the body was found away from the path leading to the house of the deceased cannot prove the guilt of the accused. Similarly, the fact that the accused was not present at the time of last rites of the deceased will not prove his guilt. PW-1 Jatru has not disclosed the name of accused when the statement was made by him under section 154 of the Code of Criminal Procedure, i.e. Ex.PW-1/A. Accused name also does not find mention in Ex.PW-10/A. PW-1 in his statement recorded under section 154 of the Code of Criminal Procedure has 13 stated that the dead body was seen on 18.12.1996 by his wife, daughter–in-law and daughter Reena. However, when he appeared as PW-1 he only mentioned that dead body was seen by his grand-daughter. 24. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bial bonds furnished by the accused-respondent are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 2.6. 2010 *awasthi*