IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 476 of 1996. Decided on: 05.05.2010. _____________________________________________________ State of Himachal Pradesh. … Appellant. Versus Kuldeep Singh and another. …Accused/Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General. For the Respondents : Mr. Anuj Gupta, Advocate. Deepak Gupta, J (Oral). This appeal, by the State, is directed against the judgment dated 18.12.1995, delivered by the learned Additional Sessions Judge(1), Kangra at Dharamshala in Sessions Case No.11- N/1995 whereby the two accused were acquitted of having committed offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code. 2. Briefly stated, the facts of the prosecution case are that on 9th March, 1995 at about 9.30 p.m., PW-1, Saj Kumar made a report to the police to the effect that on the said date in the morning hours he and his sister went to take the 10th Class examination. After 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - taking the examination, they were returning on a bicycle. At about 1 p.m. they met their mother, who was grazing cattle in the fields. At some distance, accused No.2, Bhagat Singh was also present. He was also grazing his cattle there. After some time Saj Kumar and his sister, Chander Rekha (PW-8) went home and after taking meals started studying. At about 2 p.m. they saw Chhinda (PW-7) taking their cattle. Saj Kumar asked Chhinda why he was taking their cattle. Chhinda replied that the cattle had entered into his fields and damaged his wheat crop and he was taking the cattle to the cattle pound. Saj Kumar informed Chhinda that in fact his mother was grazing the cattle and he would just call his mother. Then he (Saj Kumar) and his sister Chander Rekha went in search of their mother to the place where they had last seen her, but could not find her. Then Saj Kumar cycled to the house of his maternal uncle, Ishwar Singh (PW-2) and told him that he could not locate his mother. Thereafter, Saj Kumar, his maternal uncle, Ishwar Singh and accused No.2 Bhagat Singh started searching for Amro Devi, mother of Saj Kumar. They located her dead body at about 6 p.m. near a khad. She had an injury near her ear and throat which was caused by a sharp edged weapon. Then PW-1 came to the police station to report the matter and F.I.R. Ex.PW-1/A was recorded at police station. 3. After the report, the police swung into action. They went to the spot. Many villagers had already gathered there. Since it was dark, the place of occurrence was cordoned off and the police came back in the morning when blood stained earth was collected and taken into possession. - 3 - 4. During the course of investigation, on the basis of suspicion, the accused were arrested. It was alleged that accused No.1 made a disclosure statement, Ex.PW-7/A which led to the recovery of a danda and a khurpi, which were allegedly used to murder deceased Amro Devi. Thereafter the body of he deceased was sent for postmortem. Further investigation was carried out and on the basis of investigation, the police came to the conclusion that it was the accused who have murdered deceased Amro Devi. The motive ascribed to the accused was that accused No.1 used to tease PW-8, Chander Rekha, daughter of the deceased, which was not liked by the deceased and therefore, he murdered her. After the trial, the learned trial Court acquitted the accused. Hence, this appeal by the State. 5. This is a case of circumstantial evidence, since admittedly, no body has seen the deceased Amro Devi being killed. It is not disputed that the death of Amro Devi is homicidal. The only question is who killed her? In a case of circumstantial evidence, the prosecution must prove beyond reasonable doubt the circumstances which it alleges against the accused. These circumstances should also be linked together in such a manner that they lead to only one hypothesis, i.e. the guilt of the accused. In case there is a chance of the accused being innocent or some other person having committed the offence, the accused must be given the benefit. 6. The circumstances relied upon by the prosecution are as follows:- - 4 - (1) Motive – that accused No.1 used to tease PW-8, Chander Rekha which fact was not liked by the deceased; (2) that the deceased was last seen in the company of accused No.2, Bhagat Singh; and (3) the recovery of the danda and khurpi and the crops which were taken into possession. 7. So far as the first circumstance is concerned, it is pertinent to mention that when the matter was first reported to the police, PW-1 Saj Kumar did not express his suspicion in respect of the accused persons. It was also not stated that accused No.1 used to tease his sister. This fact was stated for the first time in his supplementary statement recorded under Section 161 Cr.P.C. Assuming for the sake of argument that this statement of Saj Kumar can be relied upon, PW-8, Chander Rekha while deposing in Court, did not make any statement that she was ever teased by accused No.1. Her statement was that she does not want to say anything about accused No.1. During the course of his testimony in Court, PW-1 stated that earlier in June, 1994 accused No.1 had given beating to Amro Devi and the matter was reported to the police, but the matter was compromised which compromise was reduced in writing. This aspect of the matter has not been proved since neither a copy of the complaint made to the police nor the written compromise have been produced or proved in Court. Therefore, the first circumstance is not proved at all. 8. The second circumstance alleged is that the two children, PW-1 and PW-8 saw their mother in the fields grazing her - 5 - cattle when they were returning from school. This happened at about 1.00 o’clock. At 2 p.m., PW-7 was taking their cattle to cattle pound. Therefore, the murder must have taken place between 1 P.M. and 2 P.M. The time of murder has not been exactly mentioned by any body. Till 1 p.m. as per the two children, they had seen their mother grazing the cattle. Whether any other person met their deceased mother after 1 p.m. and before 2 p.m., is not clear. Even if we accept for the sake of argument that accused No.2 was the person last seen in the company of the deceased, this by itself is not sufficient to convict the said accused. Neither any motive is attributed to him nor any recovery made at his instance. 9. PW-7 Dilbagh Singh alias Chhinda stated that on 9.3.1995 at about 2.30 p.m. he saw the cattle of the deceased grazing in his fields. The cattle had damaged his wheat crop and thereafter he told PW-1 that he was taking the cattle to the pound. This statement does not tally with the statement of PW-1, who in the F.I.R. had stated that at 2 P.M. PW-7 had crossed their house. According to PW-1 the distance of their house is 2-3 Kms. from their fields. He also stated that when Chhinda was taking cattle, he was very angry. The Investigating Officer in his testimony has not clearly stated the distance between the fields of Chhinda where the cattle were grazing and the house of the deceased. However, it must have taken some time for Chhinda to go to the house of the deceased. According to the children Chhinda crossed their house at about 2 p.m. Therefore, this witness could not have seen the cattle in his field at 2.30 p.m. - 6 - 10. It may also be pertinent to mention that PW-7 Dilbagh Singh alias Chhinda in his statement had stated that he was taken in custody by the police on 10th March, 1995 and remained in custody for 3-4 days. According to him, even accused No.1 had been arrested and kept in a separate room in the police station during this period. No doubt, the Investigating Officer has denied this fact, but there is no reason to doubt the testimony of this witness to the effect that he was kept in custody in a separate room. It is, therefore, obvious that PW-7 Chhinda was the first person suspected by the police of having committed the murder of Amro Devi. 11. The main plank of the prosecution is the disclosure statement Ex.PW-7/A. The Investigating Officer, PW-14, Inspector Harbans Singh stated that he arrested the accused and after arrest, accused No.1 made a disclosure statement under Section 27 of the Evidence Act. This disclosure statement is Ex.PW-7/A. It was allegedly made on 14th March, 1995. In this statement, it is recorded that the accused had kept one bamboo stick and one khurpi near the wheat filed having a small wall. He had also kept his banian hidden in the heap of cowdung and that he had washed his shirt and kept it in his hut. This statement is alleged to have been made in the presence of PW-7 Dilbagh Singh alias Chhinda and Dalia Ram (not examined). The recovery of danda and kurpi was made at the instance of the accused in presence of PW-7 and Dalia Ram. The recovery of the banian and shirt was also witnessed by these witnesses and the recovery memos Ex.PW-7/A to D were prepared. - 7 - 12. PW-7 was a suspect in the case. Even as per his version, he was arrested by the police. His interest would be totally contrary to the interest of the accused. We fail to understand why the police thought it fit to only associate this witness with the disclosure statement and the recovery made pursuant to the disclosure statement. Surprisingly, PW-7 is silent as to where the disclosure statement was made. He only states that when accused No.1 was with the police, the disclosure statement was made. Dalia Ram has not been examined. It would be very unjust and risky to rely upon the statement of PW-7 who could have been one of the prime suspects himself. 13. It would also be pertinent to mention that the recoveries have not been made from places where the police did not have access. The banian was recovered from the top of the heap of cowdung and the khurpi was lying in the fields. The recovery from the open field cannot be linked to the accused, because the field was open and every member of the public had access to it. The murder had been committed on 9th March, 1995 and on 10th March, the police had started investigating the matter. These weapons of offence have been found close to the place of occurrence and they were not so secretly kept that they could not have been discovered by the police during normal investigation. 14. Another reason to doubt the prosecution version is the various improvements made by the witnesses during the course of their testimony in the Court. Whereas in the complaint it was only stated that accused Bhagat Singh was grazing his cattle and sitting - 8 - near the deceased, during the course of recording of evidence it had been stated by PWs.1 and 2 that Bhagat Singh informed these two witnesses that their mother had been murdered by somebody and it was accused No.2 who took them to the spot where the dead body of the deceased was recovered. It is clear that these are improvements made in their statements recorded in Court. 15. According to PW-1, after PW-7 crossed their house with the cattle, he and his sister, PW-8 went in search of their mother and when they were returning home, Bhagat Singh, accused No.2 told them that their mother had been murdered by somebody. Then PW- 1, Saj Kumar went to the house of his maternal uncle Shri Ishwar Singh (PW-2). Thereafter he alongwith PW-2 Ishwar Singh and Bhagat Singh went in search of their mother. The version given by PW-2 Ishwar Singh is different. According to him, he and PW-1 saw accused No.1 standing near his house and then accused No.2 told them that he had the knowledge where the dead body of Amro Devi was lying. There is a difference in the two statements. Whereas according to PW-1 accused No.2 told them that their mother had been murdered, according to PW-2, he only stated that he has the knowledge where the dead body was lying. If these facts have been true, both these witnesses would have stated these facts before the police, which has not been done. It is apparent that this is a material improvement made at a later stage. 16. Another contradiction is that according to PW-1, Saj Kumar after PW-7 informed them that their mother was not attending to the cattle, he and his sister (PW-8) went to search for their mother, - 9 - but returned back when they could not trace her. However, according to PW-8, after PW-7 crossed their house, the brother (PW-1) went alone to search for their mother. She also stated that accused No.2 Bhagat Singh came to their house and informed them that he can tell something about their mother. According to her, only she and her brother were present at the house at that time and thereafter her brother went to the house of their mama, Ishwar Singh (PW-2). This is totally contrary to the version given by PW-1 and PW-2, who stated that when they went in search of the deceased, then Bhagat Singh met them. 17. In view of the aforesaid contradictions in the statements of the witnesses and the fact that the prosecution has miserably failed to prove the circumstances which it relies upon and has further failed to link them in the manner required by law, the learned trial Court was justified in acquitting the accused. We find no reason to interfere with the well reasoned judgment of the learned trial Court. The appeal is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. May 05, 2010. (sck).