IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 133 of 1994 Reserved on: 20.3.2008 Decided on: 5 .04.2008. __________________________________________________________ State of H P Appellant. Versus Ram Lal Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr P.K. Sharma, Addl. Advocate General. For the respondent : Mr. Ashwani K. Sharma, Advocate. _________________________________________________________ Surinder Singh, J . The respondent was tried for and acquitted of the offence of murder, punishable under Section 302 of the Indian Penal Code by the Sessions Court, which has been assailed by the State in this appeal. Precisely, the prosecution case has been that PW21 Shankar Dass had four sons. All were living separately. Nokhu (deceased) was his second son. He was married to Daya Devi about 14 years before his death. They were residing in village Nehra. Nokhu had a tailoring shop at village Mahadev. The respondent is the nephew of the deceased. He was studying in Senior Secondary School in sunder Nagar with Yadvinder Singh (PW28). It is alleged that the respondent was having illicit relations with Daya Devi, the wife of the deceased to whom he had been objecting. Nokhu Ram had also complained to PW-4 Lal Singh About eleven months before his death, about the aforesaid conduct of the respondent and requested him to advise the respondent to desist from his nefarious activities. Whether reporters of the Local papers are allowed to see the judgment? Yes.. - 2 - On 29.1.1992, at about 9.15 a.m., Pradhan Poshu Ram (PW1) informed the police telephonically that a dead body was lying on a passage, besides Gagar-Nallah in village Nehra. The said information was recorded in the daily-diary Ex. PM. The police proceeded to the spot. It was identified to be the dead-body of Nokhu Ram which had various ante mortem injuries. The police recorded the statement of Poshu Ram, aforesaid, under Section 154 of the Criminal Procedure Code, on the basis of which FIR Ex. PN was formally recorded. The police prepared the inquest papers Ex. PB. The police took into possession the watch, scissors, a pair of chappals, one biri bundle, 40 paise coins, metal box, semian from the spot along with blood stained earth vide memo Ex. PC. The dead body was sent for the post-mortem. Dr. J.C. Sharma (PW18), conducted the post-mortem on 29.1.1992. He found the following ante mortem injuries on the dead body:- “1. A sharp incised wound was on scalp 1 ½ x 1 ½ inch. Both arms 1 cm wide. Bone was exposed. 2. One C.L.W. 1 ½ ‘x1 ½’ was present on right side of the forehead just above right eye. 3. C.L.W. 1”x1” was on the back of the head. 4. Ligature mark ½ to ¾ cm was present on left side of the neck, which was diagonal in shape. It was blue in colour and was 3” long on dissection. There was no internal injury of throat.” On opening the cranium, there were multiple fractures of frontal parietal temporal bone and fracture base of the skull on its right side. In the opinion of the Doctor, the death was due to excessive extradural hemorrhage caused due to the multiple skull fracture on the right side which is caused by blunt and heavy weapon. The probable time between the injury and death was three to six hours and between death and post mortem 1 to 2 days. - 3 - The viscera and clothes of the deceased were sealed and sent for the forensic examination. As per the report Ex. PR viscera contained the alcohol and the clothes were having human blood (Ex. PS). On 30.1.1992, the respondent was arrested by the police, as having been seen last with the deceased. On the same day, he is alleged to have made the disclosure statement under Section 27 of the Evidence Act (Ex. PD) on the basis of which he got recovered one Pattu (blanket) Ex.P12, blue coloured blood stained shirt, pant having the blood stains on its knees, a pair of socks, one sweater white and red coloured and a pair of brown shoes from his room, which were sealed with seal impression `A’ and taken into possession vide memo Ex. PE. Police also took into possession a stone weighing about 1 Kg. from the spot vide memo Ex. PF. Vide report Ex. PS, these articles were found to be blood stained but it was disintegrated and unfit for further examination. The police had taken the photographs Exts. P-27 to P-36. The shoe-impressions were found near the dead body, which were measured. The shoes Ex. P-17 of the respondent which were allegedly having the blood-stains were got identified from the shoe-maker PW-7 Chet Ram before the Tehsildar, Sunder Nagar. A blood-stained Narha ( tying-string of the trousers) Ex. P-10 was also alleged to have been found near the dead-body. According to PW-28 Yadvinder Kumar, class-mate of the respondent, it was purchased about 25 days before the alleged occurrence by the respondent from a shop in Bhojpur Bazar, in his presence. The police had prepared the site plan Ex. PO and recorded the statements of the witnesses. After the completion of the investigation, the challan was presented in the court for trial of the respondent. The respondent was charge-sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. - 4 - The prosecution examined its witnesses and at the end of trial, the learned trial court did not rely on the prosecution evidence and acquitted the respondent precisely, on the ground that the circumstantial evidence was not of conclusive nature and tendency and the respondent could not be connected with the alleged crime by leading a cogent and reliable evidence,. These findings have been assailed in this appeal. According to Shri P.K. Sharma, learned Additional Advocate General, the prosecution has been able to establish the offence charged against the respondent by various circumstances, i.e. motive, last seen with the deceased, recoveries and blood stained string purchased by the respondent and recovered from near the dead body, his blood stained shoes for which the respondent did not offer any reasonable explanation. The chain of the circumstances is complete and inspires confidence, therefore, prayed for converting the acquittal of the respondent into conviction. Contra, Shri Ashwani Sharma, repelled the above arguments by submitting that the circumstances put-forth even if un-rebutted would not connect the respondent with the alleged offence. The learned counsel further ventilated that the recoveries are farce and the statements of the prosecution witnesses are far from true. In nut shell, the learned counsel supported the impugned judgment of acquittal. We have given our thoughtful consideration to the rival contentions and have carefully examined the evidence on record to judge whether the grounds for acquittal are borne out from the record. There is no eye witness of the crime. The case of the prosecution hinges upon the following circumstances: (i) Motive. (ii) Last seen in the company of the deceased. - 5 - (iii) Recovery of blood stained Nara(tying-String Ext. P10). (iv) Recoveries made under Section 27 of the Indian Evidence Act. (v) Blood stains on the shoes and the clothes of the respondent. (vi) Shoe- print found near the dead body. Now we proceed to examine each and every circumstance relied upon by the prosecution. MOTIVE. It is a settled law that if a case hinges upon circumstantial evidence, motive plays an important role. If proved, it explains what otherwise remained un-explained. It supplies an additional link to the prosecution case, but it is equally settled that the failure to prove the motive is not always fatal. Motive-less crimes are also crimes. In the instant case the motive alleged is that the respondent was allegedly having illicit relations with Daya Devi, the wife of the deceased to which the deceased had objected. This led the respondent to commit the murder of the deceased. To prove, the prosecution has examined Poshu Ram (PW1), Pradhan Gram Panchayat, Chambi, Lal Singh (PW4), Kali Devi (PW11) and Ranjit (PW17). Shankar Dass (PW21), the grand-father of the respondent and father of the deceased, has stated that Nokhu deceased was a perfect gentleman and he was given beatings by the respondent one year ago prior to his death. He has further stated that whenever deceased used to go to his tailoring shop, respondent (nephew of the deceased) used to remain with his wife in the house. He has further stated that the respondent had also been advising him (PW21) as well as the deceased not to take excessive liquor. Other witnesses, above named have stated that about five-six months before the alleged incident, the - 6 - deceased had complained to them that the respondent had picked up a quarrel with the deceased and given beatings to him and they advised the respondent not to repeat such a thing again. Only Ranjit (PW17) has stated that the deceased had told him that the respondent was having illicit relations with his wife. We are constrained to observe that the above evidence led by the prosecution to prove the motive which could allegedly lead the respondent to kill the deceased is absolutely discrepant and appears to be insufficient. (i) Respondent last seen in the company of the deceased. According to the case of the prosecution, the respondent remained in the house of Shri Khem Singh (PW8) from 11.00 a.m. to 4/4.30 p.m. in village Nehra. At that time, one Jagdish had also visited his house and they played cards but at about 4/4.30 p.m, respondent went towards Mahadev where PW8 was having his shop. Nageshwar (PW6) has stated that at about 4.30/5.00 p.m, on 28-1-1992, he was sitting in the shop of Chaman Lal in village Neri. According to him, the respondent was coming from his home and was going towards Bharari. Whereas, Sunder Lal (PW14) has stated that the respondent had visited his shop at Mahadev from where he purchased groundnut and “reori” around 5.00 p.m., but Puran Chand (PW5) his class- mate, has stated that on the same day, at about 6.00 p.m, when he was standing on the road at Bharari along with Jeet Ram and Jagat Ram (not examined), he met the respondent and at that time, he was going towards Mahadev. The distance between Mahadev and the village of the accused is stated to be 3-4 kms. Chet Ram (PW3) has stated that on 28-1-1992 at about 6.00 p.m, on his way to his home, he met the respondent at a place called “Khatarwari”. At that time, he was going towards the colony. Khatarwari is at a distance of about half km from Mahadev. All the aforesaid witnesses have given different places almost at the similar time when the respondent is alleged - 7 - to have met them. Some of them say that he was coming from his home and going towards Mahadev and few of them have stated that he was seen going towards his home. Chaman Lal (PW10) has stated that he had met the deceased at Sundernagar between 12.00 noon to 1.00 P.M and at that time, deceased was going towards his house. At 5.30 p.m, when according to PW12 Jiwa it was drizzling, the deceased was seen by him going towards his house whereas, Karam Chand (PW16) who was running a Halwai shop at Mahadev near the School, has stated that the deceased had purchased “semian” from his shop between 5.00 to 5.30 p.m. Chuni Lal (PW29), a Teacher, had met the deceased around 5.30 P.M. at village Khatwari. Man Singh (PW13) had stated that he met the deceased at Khatwari while going towards his house when it was going dark. None of the aforesaid witnesses, except PW27 Smt. Kamla Devi, had stated that the deceased and the accused-respondent were seen together. According to Kamla Devi (PW27), the deceased was going towards his house in the evening at about 5.00 or 5.40 p.m. and she had seen the respondent going through the same path earlier to the deceased. Again, she had seen the respondent to follow the same path through which the deceased had passed through. At that time, she was cleaning the utensils near the tap adjoining to the said path. Her statement is belied by the statement of Jiwa (PW12) who had seen the deceased at village Gangal at 5.30 p.m, whereas, Nageshwar (PW6) has stated that the respondent was seen by him sitting in the shop at 5.00 p.m. in village Nari and at that time, he was going towards village Bharari. Even Kesar Chand (PW16) had seen the deceased between 5.00 or 5.30 p.m. at Mahadev. At that time, he is alleged to have purchased “semian”. Thus, the entire evidence led by the prosecution is contradictory to each other which do not inspire confidence. In these circumstances, the prosecution has not - 8 - been able to prove, beyond reasonable doubt, that the deceased was last seen with the respondent. (iii) Recovery of blood stained Nara (String Ext. P10). Again, the recovery of the string (Ext. P10) from the spot where the dead body was lying, is also shrouded by suspicious circumstances. Prosecution relies upon the statement of Yadvinder Kumar (PW28), a class-mate of the respondent, who has stated that this string was purchased by the respondent about twenty-five days prior to the alleged occurrence which was found near the dead-body but he has stated that neither he could identify the shop from where it was purchased nor know the name and style of the shop. Even the shopkeeper was not examined. According to Gurbachan Singh (PW30), the string was taken into possession vide memo Exhibit-PD along with other articles. The perusal of the said memo does not find mention about the recovery of the string. Further, the photographs of the dead body, Ext. P27 to P34, does not show if any string was found lying on the spot. Further, according to the Investigating Officer (PW30), the string was sent with the dead body to the Hospital but there is no evidence that it was sealed on the spot and sent for Forensic examination. According to the report of the Forensic Science Expert, this string was having stains of human blood but when it was not proved to have been sealed on the spot as according to the Investigating Officer, it was sent along with the dead body and therefore, the possibility of stains of blood from the dead body itself cannot be ruled out. There is only one document on record, i.e, the Inquest Report Exhibit PB which shows the recovery of alleged string from the spot and also finds mention in the last column on page-1, i.e, column no. 13 of the report but the Investigating Officer has stated that the string was recovered from near-by the dead body also raises doubt in the prosecution case. . The statement of Yadvinder Kumar (PW28) cannot - 9 - also be relied upon as far as purchase of the string by the respondent in his presence as stated by him. Therefore, in our opinion, this circumstance also stands not proved. (iv) Recoveries made under Section 27 of the Indian Evidence Act. The prosecution relies upon the disclosure statement and the recovery of alleged blood stains clothes and stone, the alleged weapon of offence. According to the case of the prosecution, after the arrest of the accused, during the investigation, he made the disclosure statement Exhibit-PD pursuant to which he got recovered his blood stained clothes and the stone in the presence of Chuni Lal (PW29) and Hardev (PW2). According to the Investigating Officer, Gurbachan Singh (PW30), the respondent was interrogated on the spot and not in the Police Station when he had made the aforesaid disclosure statement. Chuni Lal (PW29) has stated that the alleged statement was made by the respondent in the verandah of the house of Mathru at 10.00 a.m in the presence of Hardev (PW2). PW Hardev has stated that the disclosure statement was made by the respondent in the verandah of his house around 11.00 a.m. He has also stated that the respondent had disclosed that he had kept the luggage in his house. All the afore-said places with respect to making of the statement are quite different from each other. The stone was recovered from the spot vide Memo Exhibit-PF which was alleged to have been sealed with seal impression ‘A’ and the seal, after its use, was handed over to Chuni Lal (PW29) and then again the recovery of the clothes of the respondent along with Pattu were taken from his house vide recovery memo Exhibit-PE which was also sealed with the same seal and then handed over back to Chuni Lal. Chuni Lal aforesaid has not stated whether the seal was handed over to him at any point of time nor there is any document to prove this fact. Thus it cannot - 10 - be said that the prosecution has been able to prove, the recoveries of the aforesaid articles beyond reasonable doubt. (v) Blood stains on the shoes and the clothes of the respondent. So far as recovery of clothes (Pant) and shoes of the respondent are concerned, these items were sent for Chemical Examination. These items were found to have contained blood. It was human blood. Further the very recovery of the shoes having blood-stains on it also surrounded by the suspicious circumstance. The shoes were alleged to have been taken into possession vide Memorandum Exhibit-PE. According to Ext. PE, there were blood stains on the soles and heels of the right shoe. The shoes were sent for forensic examination but the chemical examiner noticed brown stains inside the shoes and not any -where else which, on analysis, were found to have contained the blood, but the report does not say if it was a human blood. So is the case with Pant. All these contradictions have further aggravated the suspicion with respect to the probity of the prosecution case. Therefore, the prosecution has also failed to prove this circumstance to connect the accused with the alleged offence. (vii) Foot print found near the dead body. The photographs of the foot impression, found near the dead-body were photographed. The photos are Exhibits P32 to P33.PW-26 Mast Ram, A.S.I. took the possession of the photographs after processing from the photographer PW20 Ashok Kumar. He did not state if the photographs of the shoes were sent for its comparison to the Forensic Science Expert. There is nothing on record to show whether these shoe-prints had matched with the shoes of the respondent alleged to have been identified by Chet Ram (PW7) before the Tehsildar (PW9). Therefore, this can hardly be said to be a circumstance, which even owes the explanation of the respondent. By now it is well settled that in cases where the evidence - 11 - is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency so as to exclude every hypothesis but the one proposed to be proved. There must be a complete chain of evidence not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that with all human probabilities, the act alleged must have been done by the accused. (Pl. see Shantabai and others –v- State of Maharashtra JT 2008 (3) SC 130; Liyakat v. State of Uttranchal: JT 2008 (3) S.C. 143). Applying the aforesaid law in the facts and circumstances of the case and on having scrutinized the evidence scrupulously and after carefully examining each of the circumstances put-forth by the prosecution, in our considered opinion, the prosecution was not able to prove any of the circumstance in the case against the respondent beyond a reasonable doubt. The conclusion drawn by the learned trial Court is borne out from the record it cannot be said to be perverse. Accordingly, the impugned judgment of acquittal passed by the learned trial Court does not call for any interference. The appeal filed by the State, sans merit and is dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the proceeding of this case. Sent down the records. (Surjit Singh) Judge (Surinder Singh) Judge April 5, 2008. (Bm) - 12 -