IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 408 of 1998. Decided on: 22.7.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Rajinder Singh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Dy. Advocate General. For Respondent No.1 : Nemo. For Respondent No.2 : Mr. Vinay Thakur, Advocate. For Respondent No.3 : Mr. Inderjit Narwal, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 16.7.1998, passed by the learned Additional Sessions Judge, Shimla,HP, in case No. 38-S/7 of 1995, acquitting the respondents- accused for the alleged offence, under Sections 302 and 201 read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. Prosecution case is that Shri Bharat Ram an employee in H.P. S.E.B. was usually going to his office. However, on 8.7.1994, he did not come back and on search by PW8 Smt. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Satya Devi, the wife of deceased Bharat Ram, the deceased could not be traced out and the matter was brought to the notice of her father-in-law and brother-in-law. PW7 Shri Parmod Sharma, brother of deceased, lodged a report Ext. PW-4/A at Police Post, Dhami regarding missing of Bharat Ram deceased. On such report, a case was registered on 13.7.1994 and in the investigation, it was revealed that Bharat Ram was said to have seen in the company of accused Kamla Ram at Ghanahatti on 8.7.1994 and accused Kamla Ram and Rajinder Singh consumed liquor in the veterinary dispensary at Nehra. However, dead body of Bharat Ram was recovered on 14.7.1994 at the instance of PW20 Shri Bhagat Ram He was grazing his cattle near nullah Nayakot when one of his oxen was frightened on seeing something and thereafter, dead body was recovered by PW21 ASI Purshotam Dass in presence of Ramesh Kumar, Rajesh Kumar and Satya Devi. 4. After investigation, accused persons were charged for the offences under Sections 302 and 201 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. The prosecution evidence followed. It has examined 23 witnesses in all. Whereas, the accused through statement under Section 313 Cr.P.C. have denied the prosecution case and shown their innocence. However, the accused did not lead any evidence in defence. 5. The photographer was also brought there, who photographed the dead body. The photographs are Ext. PW2/A to Ext. PW2/C. There was the strap of watch Ext. P3 in left wrist of 3 the deceased which was taken into possession by the police vide seizure memo Ext. PW8/A. There was blue shirt on the person of the dead body. The duck-back shoe was only in the left foot, whereas the other shoe was lying at a distance of 20 meters away from the dead body. The socks Ext. P5 and the shoes Ext. P6 of the deceased were taken in possession by the police as per the seizure memo Ext. PW2/A. The investigating officer PW21 also prepared the site plan Ext. PW21/A. The SHO, Police Station, Dhalli, Shri Satish Kumar also visited the spot and he prepared the field map Ext. PW6/A and Ext. PW6/B of the place where the dead body was lying. The dead body was then sent to Indira Gandhi Medical College, Shimla for post mortem along with the inquest report Ext. PW21/C. Dr. Suresh Sankhyan, Associate Professor in the Department of Forensic Medicines, PW23 has conducted the autopsy as per his report Ext. PW23/A and as per his opinion Shri Bharat Ram died due to ante mortem head injury. 6. Shri Madan Lal ASI PW19 inspected veterinary dispensary at Nehra during the investigation of the case where the deceased and the accused persons have allegedly consumed the liquor during the night intervening 8/9.7.1994. He prepared the site plan Ext. PW9/B. The empty bottle and pint Ext. P1 and Ext. P3 were also taken in possession by him from the store of the dispensary as per the seizure memo Ext. PW7/A. Accused persons Rajinder Singh and Kamla Ram were arrested by the police and while in police custody, accused Kamla Ram made the disclosure statement Ext. PW12/A in presence of Shri Sahej Ram PW12, the Pradhan, Gram Panchayat, Ganoug that they concealed 4 the stick used for assaulting the deceased in the room of dispensary. Thereafter, both the accused led the police party to the veterinary dispensary Nehra and stick Ext. P4 produced by them before the police, which was taken in possession as per the memo Ext. PW10/A and was sealed in a parcel after the sketch map Ext. PW10/B was prepared. 7. It transpired during investigation that PW1 Sita Ram was also searching the accused along with others and in search accidentally PW20 Bhagat Ram detected the dead body near nullah Nayakot. PW17 Krishan Lal was also endeavouring to search Bharat Ram deceased. PW17 met accused Kamla Ram and enquired from him about the whereabouts of deceased. Accused Kamla Ram had allegedly informed PW17 that in the first week of July, 1994 accused Rajinder Singh and Satish Kumar had consumed liquor with the deceased and thereafter, both of them had killed the deceased and his dead body was thrown in the nullah Nayakot. Kamla Ram accused was also present at the time of the occurrence. It appears that Rajinder Singh and Kamla Ram were inimical towards the deceased as about three years ago all the accused were in a marriage party, where accused Rajinder Singh had misbehaved with the wife of accused Kamla Ram and such action was not tolerated by Bharat Ram deceased and he slapped accused Rajinder Singh. Besides, Bharat Ram deceased spread this rumour of Rajinder Singh having been slapped and that Kamla Ram was also inimical towards deceased. 8. The present case is not of direct evidence but of circumstantial evidence. In order to prove its case, the prosecution 5 has mainly relied upon the testimonies of PW3, PW7 and PW9. PW3 Kishore Chand working on daily wages basis in HP PWD in support of prosecution case has stated that he was knowing Bharat Ram deceased. He had seen Bharat Ram and Kamla Ram together to be in a state of intoxication at Ghanahatti on 8.7.1994 at about 6.00 p.m. and on enquiry from Bharat Ram deceased, if he was ready to go to his house, Bharat Ram informed that he was busy to buy books for his kids. Thereafter, Bharat Ram and Kamla Ram started talking each other and PW3 Kishore Chand had boarded the bus leaving Kamla Ram and Bharat Ram deceased at Ghanahatti. As per testimony of PW3 Kishore Chand, he had seen deceased Bharat Ram and Kamla Ram together on 8.7.1994. 9. PW7 Shri Parmod Sharma, cousin of deceased was informed on 10.7.1994 by PW8 Smt. Satya Devi, wife of the deceased that her husband had not returned back since 8.7.1994 and on enquiry, PW7 found that accused Rajinder Singh and Bharat Ram were seen together at Ghanahatti in the evening on 8.7.1994. Bharat Ram and Rajinder Singh had been drunk. On enquiry by PW7 Parmod Sharma from Kamla Ram, the latter had admitted that Bharat Singh had been with him in the evening on 8.7.1994 and as per testimony of PW7 Parmod Sharma, Kamla Ram had also informed PW7 that he had been requesting Kamla Ram to accompany to his house. PW7 reported the matter to the police, vide report Ext. PW5/B at Police Station, Dhalli on 13.7.1994 and made search of deceased Bharat Singh and found the dead body in the nullah of Nayakot on 14.7.1994. 6 10. PW9 Krishan Lal in support of prosecution case has stated that Rajinder Singh accused is working in Veterinary Dispensary and in the evening on 8.7.1994 PW9 he had seen Rajinder Singh and Kamla Ram accused taking liquor with Bharat Ram in the Veterinary Dispensary at about 8.00 p.m. and Bharat Ram was telling to go to his house and on this accused Kamla Ram told him that he would accompany upto his village. PW9 has also stated in cross-examination that accused Satish Kumar was also with accused Rajinder Singh and Kamla Ram on 8.7.1994 in the Veterinary Dispensary. However, PW9 in cross-examination has stated that he has not noticed the accused persons taking liquor prior to 8.7.1994. Accused persons had asked deceased to go after taking food. 11. From the testimonies of PW1 Sita Ram, an employee of HP SEB, PW2 Govind Ram, Photographer, PW4 Constable Dinesh Kumar, PW5 ASI Ram Lal, PW6 Arun Kumar, Patwari, PW8 Smt. Satya Devi, wife of deceased Bharat Ram, PW10 Ramesh Gupta, Veterinary Officer, PW11 Smt. Kaushalya Devi, PW12 Sahej Ram, PW13 Smt. Janki, PW17 Krishan Lal, PW18 Smt. Shakuntla, PW19 ASI Madan Lal, PW20 Bhagat Ram, PW21 ASI Purshotam Dass, PW22 Satish Kumar and PW23 Dr. Suresh Sankhyan nothing is coming out substantially in support of prosecution case as these witnesses have only stated to the extent they were assigned the role and that all of them have not seen the occurrence. 12. From the testimonies of PW3, PW7 and PW9 and the other material on record, we noticed that the deceased was seen 7 with Rajinder Singh and Kamla Ram in the evening on 8.7.1994 intoxication. However, after observance by all these prosecution witnesses, PW3 Kishore Chand, PW7 Paramod Sharma and PW9 Krishan Lal why such matter was not reported when people were searching about missing of Bharat Ram and dead body was recovered on 14.7.1994 till that time also none of the prosecution witnesses PW3, PW7 and PW9 have divulged the aspect of deceased having been seen on 8.7.1994 in the company of Rajinder Singh, Kamla Ram and Satish Kumar. PW9 has only stated that Satish Kumar was present with Rajinder Singh and Kamla Ram, whereas PW3 and PW7 have not stated about the presence of Satish Kumar on 8.7.1994 with the deceased. PW7 is said to have filed application Ext. PW5/A indicating that someone might have kidnapped the deceased. PW7 has also lodged report at Police Post, Dhami on 8.7.1994. PW9 Krishan Lal is said to have seen the accused consuming liquor in Veterinary Dispensary, Nehra along with deceased. Thereafter, for the reasons best known to him kept mum till 18.7.1994. 13. From the scrutiny of the prosecution evidence, we find that there is no blood stain found from the place of alleged occurrence and no prosecution witness has seen that after consuming alcohol, the deceased was beaten by the accused persons. It was only revealed from the testimony of PW17 Krishan Lal that after consuming alcohol, accused have assaulted and killed the deceased. Such extra judicial confessional statement made by accused Kamla Ram with PW17 Krishan Lal appears to be not plausible as such statement was made before Kamla Ram on 8 14.7.1994 and PW17 kept mum till 17.7.1994 which he had admitted in his cross-examination indicating that he had not informed any one else about the confessional statement made by accused Kamla Ram till 17.7.1994. On analysis of the prosecution witnesses, the learned Additional Sessions Judge has found that the testimony of PW17 is not reliable and prosecution has not been able to link the death of Bharat Ram with any of the activities of accused. No chain is made out co-relating any activity of the accused. None of the prosecution witnesses has seen the accused assaulting the deceased and after post mortem of the dead body of the deceased, nothing could be ascertained about injury and cause of death as dead body was recovered after six days of the date of alleged incident. The prosecution in its endeavour could not bring any definite conclusion and prove on the basis of circumstantial evidence and theory of last scene to prove its case beyond reasonable doubt and prosecution in our considered view has failed to bring home the guilt of the accused. In our considered view, the learned Additional Sessions Judge has rightly come to the conclusion that the prosecution case is doubtful and the accused were entitled to benefit of doubt. There is no scope of any interference with the findings and decision of the learned Additional Sessions Judge. Thus, we find no merit in the present appeal and the same is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 22, 2010. (cr) 9