IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 67 of 1999 Judgment reserved on : 14.7.2010 Date of Decision : November 3 , 2010 State of Himachal Pradesh Appellant Versus Prehlad Kumar and 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, Additional Advocate General for the appellant. For the respondent : Mr. Virender Rathore, Advocate, for the respondents. Sanjay Karol, J. For an offence, which is alleged to have been committed on 3.2.1997, accused were put to trial. In terms of judgment dated 4.4.1998 passed by the learned Additional Sessions Judge (II), Kangra at Dharmshala in Sessions Case No. No. 21-N/VII-1997, titled as State versus Prehlad Kumar and another, the accused stand acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that Sh. Piar Chand (PW-1) had purchased a Maruti van bearing No.HP-01-0524, white in colour, from Modern Automobiles in the month of July, 1995. The vehicle was bearing Registration No. HP-01-0524. Sh. Jagat Ram (deceased) was employed as a driver by him. By routine the driver used to take the vehicle from the house of Sh. Piar Chand in the morning and bring it back by evening. On 3.2.1997 at about 8.30 a.m. Sh. Jagat Ram took the vehicle to the Taxi Stand, Chamba. On that day he was wearing a blue coloured jacket and a faded pant. He got petrol filled from the petrol station owned by M/s Mehta Avtar Chand & Co. Sultanpur, Chamba vide cash memo (Ext. PW 20/A). In the evening the driver did not bring the vehicle back. Sh. Piar Chand presumed that due to heavy rains the road may have got blocked somewhere. Since the driver did not return even for the next few days, on 11.2.1997 he got missing report (Ext. PW 12/A) lodged at Police Station Sadar, Chamba. 3. On 8.3.1997 Inspector Jagan Nath (PW-21) alongwith SI Jodhamal (PW-20) were at Harnota in connection with investigation of a criminal case. There they found a van in a damaged condition parked along side the road. The yellow strip of the vehicle was freshly painted with black colour and number plates were removed. Accused Prehlad was sitting in the vehicle. Jagan Nath asked accused Prehlad to produce documents of the vehicle. Accused Prehlad informed Inspector Jagan Nath (PW-21) that his companions 3 Parkash and Jaswant Singh had brought the vehicle from Chamba which had met with an accident. No documents were produced. Suspecting that the accused had stolen the vehicle it was taken into possession vide memo (Ext. PW3/A) in the presence of Sh. Subhash and Sh. Harbans Lal (PW-3) and Ruka (Ext. PW17/A) was sent by PW-21 through constable Joginder Singh to Police Station, Nurpur. The van was got toe-chained and brought to Police Station, Nurpur. Accused Prehlad was also taken there. On the basis of Ruka, F.I.R. No. 61/97 (Ext. PW 17/B) dated 8.3.1997 under Sections 379 and 411 of the Indian Penal Code was registered at Police Station, Nurpur. At the police station accused Prehlad disclosed complete particulars of his companions. Consequently search was carried out for them. Same day at Talwara while PW-21 was inspecting the train at about 8.00 p.m. he saw two persons running away from compartment No. 3. He apprehended both of them. One turned out to be accused Jawant and the other disclosed his name as Amar Nath from Bilaspur. Amar Nath was carrying a pistol for which separate proceedings were initiated against him. Accused Jaswant was brought to the police station. On 9.3.1997 both accused Jaswant and Prehlad were formally arrested. On 10.3.1997 accused Prehlad made a disclosure statement (Ext. PW 4/A), witnessed by Sh.Prabhat Singh (PW-4) and Sh. Basheshwar Singh (PW-5), to the effect that after murdering the driver of the van (deceased) they had thrown his dead body near Kathla Mandir on Lunj to Gaggal Road. Accused Prehlad then took the police to the spot and got 4 recovered the mummified dead body and clothes i.e. pant (Ext. P1) and underwear (Ext. P2) of the deceased from the spot vide memos (Ext. PW 6/A and Ext. PW 14/A) which was witnessed by Sh. Partap Chand and Sh. Siripat (PW-6). Inspector Prem Singh (PW-14) prepared inquest report (Ext. PW 10/C) and sent the dead body for post mortem to Zonal Hospital at Dharmshala. The skeleton was identified to be that of Jagat Ram through the clothes recovered at the spot. Post mortem examination of the mummified skeleton was done by Dr. D. P. Swami (PW-19) who gave his report (Ext. PW 10/B). It was further sent for examination to the State Hospital at I.G.M.C. Shimla where Dr. D. K. Ghosh (PW-10) examined and issued report (Ext. PW 10/E). The clothes were identified by Sh. Piar Chand (PW-1) and Sh. Rajesh Kumar (PW-2). Photographs were taken and site plan prepared at the spot. During investigation accused Jaswant Singh also made disclosure statement (Ext.PW 7/A), witnessed by Sh. Jeevan Kumar (PW-7) and Sh. Bahadur Singh, to the effect that he had concealed certain parts of the van being covers, tape recorder, blanket, seat covers and curtains at the rented accommodation at Ludhiana owned by one Jasbir Singh. Accused Jaswant also got these articles recovered vide memo (Ext. PW 1/A) which were identified by Sh. Piar Chand (PW-1). During investigation it so revealed that certain other parts of the vehicle i.e. wiper, radiator, self and three tyres were sold by accused Jaswant to one Sh. Devinder vide receipt (Ext. PW 8/A). The articles were 5 got identified by Sh. Piar Chand and consequently taken by the police into possession vide memo (Ext. PW 1/B). 4. Challan was presented against three accused namely Jaswant Singh, Prehlad and Parkash Chand. Trial Court charged them for having committed offences punishable under Sections 302, 201, 382, 411 all read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 21 witnesses. After examination Court found no incriminating material against accused Parkash and consequently he was acquitted vide order dated 28.3.1998. With respect to the remaining two Trial Court recorded their statements under Section 313 Cr. P.C. in which they pleaded the following common defence:- “I am innocent. The police during my detention with them treated me with third degree method which continued for about 5-6 days and due to that torture I suffered numerous injuries but I was not medically examined. I have falsely been implicated in this case.” 6. The prosecution case primarily rests on circumstantial evidence and the Court below acquitted the accused by holding that the prosecution miserably failed to connect the accused, beyond reasonable doubt, with the alleged crime. Hence the present appeal. 6 7. Admittedly there is no eye witness tothe occurrence of the incident. The prosecution case primarily rests on the following circumstances culled out by the Trial Court:- “Agaisnt A-1 Prehlad (i) A-1 Prehlad Kumar having been found sitting in the van in question on 8.3.97 at Harnota and his failure to produce the documents of said Van, leading to the seizure of Van by the Police; (ii) Disclosure statement (Ext. PW 4/A) allegedly made by A-1 Prehlad, about throwing of deadbody of a Taxi driver by him and his companions A-2 Jaswant Singh and Parkash Chand and consequently recovery of the dead- body (human skeleton), pant Ext. P1 and underwear P2, allegedly of deceased Jagat Ram. Against A-2 Jaswant Singh (i) Disclosure statement Ext. PW7/A allegedly made by A-2 Jaswant Singh, regarding his having kept concealed the carrier, tape-recorder, blanket, three seat covers & five curtains of the Van and consequent recovery thereof vide memo Ext. PW 1/A, at Ludhiana; (ii) Recovery & seizure memo Ext. PW 1/B, regarding wiper, three tyres, self and one radiator of the said van, allegedly sold by A-2 Jaswant Singh to Devinder Kumar (PW8), vide receipt Ex. PW8/A(photocopy).” 8. The law of circumstantial evidence is now settled. Prosecution has to prove, beyond reasonable doubt, the circumstances leading to the hypothesis consistent with the guilt of the accused. The chain of evidence should be so complete so as not to leave reasonable 7 ground for conclusion which is inconsistent with the innocence of the accused. 9. There is no doubt that post mortem of an unknown dead body was got conducted first by Dr. D. P. Swami (PW-19) Medical Officer, Zonal Hospital Dharamshala and then by Dr. D.K. Ghosh (PW-10). It was only in the shape of a skeleton. According to Dr. D. K. Ghosh dead body was of a moderately built Hindu male with 5’7” height who had died due to impact by some hard blunt object resulting into asphyxia. The injuries found on the skull, which were in the nature of ante mortem, could be caused either by falling or throwing away the body from a height and subsequently rolling and hitting a moderate to heavy blunt object(s) like stones or boulders. Importantly Dr. Ghosh admits that exact identification of the person of the dead body was not possible. None from the house of the deceased has been associated by the police during the investigation or examined in the Court. Endeavour made by the prosecution to link the body with the pant and the underwear in this direction is too weak. HC Daulat Ram (PW-15) admits that when clothes were shown they were not mixed up with similar other clothes for the purpose of identification. Also there is nothing on record to link the physical features of the dead body with that of the deceased. 10. Investigation in the case was done by Inspector Jagan Nath (PW-21), SI Jodhamal (PW-20) and Inspector Prem Singh (PW-14). There is no doubt that in Court they have narrated the sequence of events as per prosecution case but however we find that their 8 version stands contradicted by other independent witnesses rendering the prosecution case to be extremely doubtful if not false. 11. According to PW-21 Prehlad was found sitting in the van which was damaged and was asked for the documents of the vehicle which he failed to furnish and consequently on the basis of suspicion the vehicle was taken into possession vide memo (Ext.PW 3/A) in the presence of one Sh. Subhash and Harbans Lal (PW-3). Now this version of his stands materially contradicted by PW-3. According to whom when he reached the spot many persons had gathered at the spot. Accused Prehlad was one of them. None was sitting in the van and police had told him that since the vehicle was lying unclaimed the same “had been” taken into possession by them for which memo (Ext. PW 3/A) already stood prepared. Importantly on this point this witness has neither been cross examined by the prosecution nor declared hostile. Thus this uncontroverted version of his renders the prosecution case to be false. The genesis of the crime, as set up by the prosecution stands knocked off. 12. Further disclosure statement (Ext. PW 4/A) dated 10.3.1997 is alleged to have been made by accused Prehlad in the presence of Sh. Prabhat Singh (PW-4) and Sh. Basheshwar Singh (PW-5). Both these witnesses admit that at that time many persons were present at the spot. Inspector Jagan Nath (PW-21) admits not to have associated any independent and respectable person of Nurpur Town. Admittedly police station is just adjoining to the Judicial Court Complex, Nurpur. PW-4 is a resident of Tehsil Pathankot, of another 9 State i.e. Punjab and PW-5 is a resident of village Aghar which is not the village of either the accused, the complainant or falls within the jurisdiction of the concerned police station. That apart, we find that PW-4 has contradicted himself on the point of identity of the accused. In examination in chief he states that at the police station all three accused were present. One of them is identified by him to be accused Jaswant Singh present in the Court who made disclosure statement (Ext. PW 4/A). When declared hostile and cross examined by the Public Prosecutor this witness states that the statement was made by accused Prehlad Kumar also present in the Court and not accused Jaswant Singh. Further he states that he did not know any of the accused persons from before nor did he know their names. In fact they were complete strangers. Police had also not disclosed their names to him. In Court he admits that the word Jaswant was written on his palm for the purpose of giving evidence in Court. This only shows he is a tutored witness whose testimony is in any event contradictory, unreliable and untruthful. It does not inspire confidence. 13. Further PW-5 admits that when the accused were brought out from the police lock up they appeared to be frightened and pulled down. Accused made statement Ext. PW 7/A. Signatures of only accused Prehlad were obtained in his presence. 14. Further these witnesses state that all three had made statements in the presence of Dy. S.P., S.H.O. and one Munshi. Now there is no disclosure statement of accused Parkash Chand on 10 record. Material has been concealed and senior police officials have also not been examined in Court. 15. It is the case of the prosecution that after accused Prehlad made disclosure statement he got the dead body recovered from the place where it was allegedly thrown by the accused. Now the dead body was recovered vide seizure memo (Ext. PW 6/A). Pant and underwear (Exts. P1 & P2) allegedly belonging to the deceased were also recovered from the site vide memo (Ext. PW 14/A) witnessed by Sh. Siripat (PW-6). 16. Now according to PW-6 the Dy. S.P. Kangra, S.H.O. Kangra, and S.H.O. Nurpur had visited his village on 9.3.1997. Recovery is effected on 10.3.1997. He further states that on 9.3.1997 itself the police had told him that they had heard that a dead body was lying in the village and that they had come to search for the same. This renders the prosecution case to be false. Police already knew about the accused having killed the deceased and thrown the body in the village. Accused Prehlad and Jaswant were with the police on that day itself. He had accompanied the police in their vehicle up to the temple. Both the accused had told them that the dead body had been thrown a little ahead of the temple. But qualifies that he could not identify the two accused sitting in the vehicle as it was dark both inside and outside the vehicle. The police had told him that the accused were sitting in the vehicle. Importantly this witness has not been cross examined by the prosecution. In cross examination by the defence he admits that only one of the accused had shown the 11 path. This witness has also contradicted himself. That apart from the uncontroverted statement of this witness it is evident that prior to recovery, police was already aware of the place where the dead body was lying. This renders the prosecution version that the accused got recovered the dead body on 10.3.1997 to be absolutely false. 17. Further from the statements of PW-1 and PW-2 it is evident that there were no distinctive identification marks on the clothes of the deceased. Consequently it cannot be said that this circumstance against accused Prehlad stands proved by the prosecution. Even the body could not be identified properly. 18. Importantly according to PW-14 on 9.3.1997 itself he had received a wireless message from the Sub Divisional Police Officer Nurpur that one dead body was lying near Lanj and that out of the three accused present in the Court he could not disclose the identity of the other accused who was present with the police at the spot when the police had come to search for the dead body. Thus the identity of the accused itself is in doubt. Police may be suspecting some one else for having committed murder. 19. With regard to the disclosure statement (Ext. PW 7/A) allegedly made by accused Jaswant it is pertinent to state that the same was witnessed by Sh. Jeevan Kumar (PW-7) and Sh. Bahadur Singh. Now Sh. Bahadur Singh has not been examined in the Court and PW-7 is nephew of Sh. Piar Chand. He resides at a distinct place. Allegedly he traveled with the accused and the police party up 12 to Ludhiana for recovering the articles mentioned in recovery memos Ext. PW 1/B and Ext. PW 1/C. These articles allegedly were removed from the van and kept in the rented accommodation at Ludhiana. Admittedly, no local person was associated by them while effecting such recovery. Seizure memo (Ext. PW 3/A) does not record the fact that any of the parts of the vehicle were found to be missing. PW-7 admits that no mechanic was called by the police in his presence. No mechanical examination of the vehicle was got done to prove that certain parts of the vehicle were missing. Even as per PW-1, who had accompanied the police to Ludhiana, proper identification of the articles was not got done by the police. 20. In the disclosure statement of Jaswant Singh it is nowhere mentioned that articles of the vehicle were sold by him to Sh. Devinder Kumar (PW-8). PW-8 also admits not to have produced the original receipt (Ext. PW 8/A) which he had allegedly issued at the time of purchasing the spare parts from accused Jaswant Singh. He also admits that the spare parts also had no particular identification marks which could be linked with the vehicle in question. PW-21 also admits that he did not identify the articles by way of local investigation. 21. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said 13 that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. November 3 , 2010 (PK)