IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.222 of 2001. Decided on: February 25, 2011. ___________________________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Khube Ram and others. …..Respondents. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl.A.G. For the respondent : Mr. Y.P.S. Dhaulta, Advocate. _______________________________________________________ Per SURINDER SINGH, J : The respondents were tried for the offence punishable under Section 302 of the Indian Penal Code for alleged murder of Jaiverdhan (deceased). The learned trial Court disbelieved the evidence of the prosecution, as such respondents were acquitted, hence the present appeal by the State. 2. Heard and gone through the evidence on record. 3. The factual matrix of the prosecution case can be stated thus. On 30.4.1989 at about 7.15 a.m., Whether reporters of the Local papers are allowed to see the judgment? - 2 - Puran Chand son of deceased Jaiverdhan accompanied by Raj Kumar, Dagu Ram, son of Bansi Ram reached Police Post and informed that his father Jaiverdhan had gone to village Sudhas on the previous day. He was lying dead at a distance of about 1 ½ furlong. He might have been murdered by someone while returning to is house. To this effect, entry Ex.PK was made in the Roznamcha by PW9 C. Jagdish Chand in Police Post Janjehali. Telephonic information was also given to Police Station concerned, an entry Ex.PL to this effect was made in the Daily Diary. 4. On getting information, PW13 SHO Lal Chand rushed to the spot and reached the same day around 6 p.m. and recorded statement Ex.PB of Chaman Lal (PW2) under Section 154 Cr.P.C., another son of the deceased. 5. Chaman Lal made a statement to police that his father had gone to village Sudhas on the previous day i.e. on 29.4.99 at about 5 p.m. alongwith Dagu Ram son of Bansi Ram (PW4), a resident of Kandidhar and Khub Ram, resident of village Juhar of District Kullu to the house of another Dagu Ram son of Jagat - 3 - Ram (PW5). He enquired about his father from PW4 Dagu Ram son of Bansi Ram accompanying Patap son of PW5 aforesaid. Partap disclosed that his father had already left the place. At that time, Dagu Ram (PW4) was in an inebriated state. Thereafter he rushed to the house of Dagu Ram s/o Jagat Ram (PW5) to verify the whereabouts of his father, were PW5 and Khuba Ram were sitting in the house and informed him that his father had already left for his house. Then he adopted a different path to locate his father and found his father lying in the field nearby. When he called his father, he did not respond, though he was moving his body to some extent. Thereafter he rushed to the house of Dagu Ram (PW5) and came to the spot alongwith him and Khuba Ram. Deceased could not speak anything and died in their presence. The complainant noticed blood coming from his mouth and nostrils and he was bare footed. He also disclosed in his statement aforesaid that PW5 Dagu Ram had told him that when Jaiverdhan and Khuba Ram and Dagu Ram (PW4) were consuming liquor. Later, accused Khube Ram came there and forced him to go away in the - 4 - presence of PW3 Veena Kumari , daughter of PW5 Dagu Ram. 6. He also stated in his statement aforesaid that on 31.3.99, prior to the alleged incident, his father had thrown the stones of a Bawri (a water source) in his village, following night, Mine Ram elder brother of accused Khube Ram accompanied by Roshan Lal came to the house of his father and broke their door and gave him beatings, but later it ended in a written compromise Ex.PD. It is alleged that due to previous enmity, the accused-respondents nourished grudge against his father. 7. The above statement of the complainant culminated into FIR Ex.PB/A. The police prepared inquest papers Ex.PJ in the presence of the witnesses. 8. The dead-body of the deceased was taken to hospital and the autopsy was performed by PW1 Dr. Jiwanand. The Post-mortem report is Ex.PA. Doctor noticed the following injuries on the person of the deceased:- “1. There was lacerated wound on the forehead right side near hair margin 1 ½ x 1 ½ c.m. x 1 c.m. deep - 5 - with underlying contusion, skin colour, extending around the eye ball right, cheek right with fresh fluid blood from wound and there was clotted blood in and around the wound. 2. There was lacerated wound on inner side of upper lip 1x ½ x ½ c.m. in size with clotted blood in and around the would lying against upper canine. 3. There was grazed abrasion one lying dorsum of right hand at base of ring finger with clotted blood over abrasion and appeared ante mortem. 4. There was superficial grazed abrasions on back of right elbow, iliac crest, back of right elbow, both shins appeared to be postmortem or perimortem in nature. 5. There was swelling in suprasetenal notch extending towards the right side of the neck containing lot of clotted blood. After removing skin and underlying issue, there was transverse fracture of sternum at the level in the middle with its lower and piercing the right pleura. There was also rupture of pericardium with lot of blood in pericardial and right pleural cavity. There was fracture of ribs 3rd to 7th right side and 3rd to 5th on the left side at costro chondral junction. - 6 - 6. The scalp tissue was normal except injury on the forehead as already described. There was no injury to the skull bone. Brain and membranes were normal. 7. The doctor also noticed the injury on the Thorax as under:- There was contusion on the right side extending from sternum to chest from just below the clavicle to 6th rib with lot of clotted and fluid blood. There was fracture of rib at costro chandrol junction 3rd to 7th on right side and 3 rd to 5th on the left side. The right pleura was ruptured and full of fluid blood about 1 ½ to 2 litres. Trachea was full of blood. Right lungs showed multiple laceration found in medial side in both upper and lower lobe highly congested with lot of clotted blood. Left lung appeared normal. Pericardium was full of blood. Pericardium was congested. All the heart chambers were empty”. 9. In the opinion of the doctor, the deceased died due to injuries on his vital organs i.e. lungs and pericardium. Time between the injury and death was few minutes and between death and postmortem 24 to 48 hours. The viscera was preserved and sent - 7 - for forensic examination. As per the report Ex.PN/1, the intestines, kidneys and blood of the deceased contained 216.2 milligrams percent of alcohol. 10. The respondents were arrested. Statements of Dagu Ram (PW4), another Dagu Ram (PW5), Sher Singh and Khuba Ram were recorded under Section 164 of the Code of Criminal Procedure before the Magistrate on 5.5.1999 besides recording statements of other witnesses under Section 161 Cr.P.C. and the respondents sent up for trial. Police also recorded statement of PW3 Veena Kumari on 17.5.1999. 11. Police presented the challan in the Court. They were put on trial for the offence of murder, but at the end of trial, they were acquitted as aforesaid. 12. Admittedly, there is no eye witness to the incident. The entire case of the prosecution hinges upon the circumstantial evidence and the circumstances put-forth to connect the crime are as under:- (i) Dying declaration alleged to have been made to the complainant Chaman Lal by his father; and (ii) Last Seen. - 8 - 13. The motive, which is alleged against the respondents for committing such crime, is the previous dispute with respect to the water source, which was compromised. 14. It is a settled law that in a case basing on circumstantial evidence, the rule that cumulative effect of all facts established must be consistent only with hypothesis of guilt of the accused, but that does not mean that the prosecution must meet any and every hypothesis put-forth. 15. Insofar as the first circumstance is concerned, it is not worth inspiring confidence, for the reasons neither Puran Chand real brother of Chaman Lal son of the deceased had informed the police about this fact when he informed PW9 C. Jagdish Chand in Police Post Janjehali. Even at that time he was not knowing as to who was the assailant. Secondly, Chaman Lal in his statement made to the police under Section 154 of the Code of Criminal Procedure Ex.PB did not make such a reference, rather he categorically stated when he saw his father lying in the field and called him, but he did not respond at all thereafter he went to the house of PW5 Dagu - 9 - Ram. So his statement before the Court made for the first time that his father named the respondent Khube Ram as one of the accused having committed the offence, is an afterthought and an improved version, which cannot be believed and relied upon at all. Therefore, this circumstance fades away. 16. As far as second circumstance is concerned, statements of PW3 Veena Kumari daughter of PW4 Dagu Ram and also PW5 Dagu Ram s/o Jagat Ram are read and appreciated together, that make us believable to the extent that the deceased had joined the respondents to take liquor in the house of PW5 Dagu Ram, where they had a drunken brawl. Thereafter the accused Khube Ram left the place and the deceased had also left the place. Later he was seen lying in the field at a distance of about 100 meters where they had consumed the liquor in an injured condition not responding to the call given by his son. There is absolutely no evidence to show that when the deceased had left the house of PW5 Dagu Ram, the accused-respondents had way-laid the deceased or in any way had seen the deceased in - 10 - their company. The moment the deceased had left the house of PW5 alive, the theory of the last seen with the respondents vanishes and none of them thereafter were seen with the deceased. The deceased was heavily drunk as alcohol was found 216.2 milligrams in percentage in his viscera. The possibility of his falling down from a height or having been beaten up by someone else cannot be ruled out; but however, there is no evidence connecting the respondents with the alleged crime. 17. The motive, as alleged by the prosecution to commit the murder is also not believable, for the reasons that the earlier dispute had already been resolved inter se the parties, not only that the deceased had joined the respondents in the house of PW5 Dagu Ram and joined them to take liquor. 18. The above circumstances put-forth are not of a conclusive nature and tendency and also consistent with the hypothesis of guilt of the accused, as such, we do not find any fault in the acquittal of the respondents recorded by the learned trial Court, the reasons for which are borne - 11 - out from the record. As such, the appeal filed by the State merits dismissal, accordingly dismissed. 19. The respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. 18. Send down the records. (R.B. Misra), Judge. February 25, 2011. (Surinder Singh), (Pds) Judge.