IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.436 of 1996 Decided on: 3rd May, 2010 State of H.P …..Appellant. VERSUS Subhash Chand & ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1No For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Shri Ashok Chaudhary, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 20.2.1996 delivered by the Learned Additional Sessions Judge (1), Kangra at Dharamshala in Sessions Trial No.8 of 1995 whereby he acquitted the accused of having committed offences punishable under 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Sections 302 read with Section 34 of the Indian Penal Code. 2. The undisputed facts of the case are that deceased Kewal Singh was engaged as a labourer on tractor No.HP-40-821 owned by Prithvi Singh. Babu Ram, accused No.3 was the driver of the tractor. PW/5, Ashwani Kumar was going to his fields in the morning on 28.6.1995 when he saw a dead body lying next to the Mandi-Pathankot National Highway, about 15 feet away from the road. He came and informed his father, PW/6, Gian Chand who came to the spot. The dead body was identified by him to be that of Kewal Singh who was his real sister’s son, i.e. the first cousin of PW/5. Thereafter, other witnesses came to the spot. PW/2 Puran Chand heard about a dead body being found and on going to the spot found that the dead body was that of his first cousin namely Kewal Singh. He immediately informed PW/3 Balwan Singh, real brother of the deceased about this fact. Both of them then came to the spot where the police had already reached. 3. The prosecution case is that in the evening of 27.6.1995, the deceased was on the tractor bearing No.HP-40-821 alongwith the tractor driver, Babu Ram and …3… two other labourers namely Subhash Chand and Jagdish Chand. All of them were last seen together on the tractor. According to the prosecution, PW/3 Balwan Singh during investigation had stated that he had seen the accused and the deceased quarrelling near Dramman. The accused were arrested. Accused Subhash Chand made a disclosure statement (Ext.PW4/D) which led to the discovery of an iron rod, Ext.P/7 which was allegedly used to kill the deceased. The dead body of the deceased was subjected to post mortem examination. Blood stained earth, the clothes of the deceased and clothes of the accused etc. were taken into possession. These were sent for chemical examination. It was opined by the expert that the clothes of the accused as well as the deceased had human blood on them. On the basis of this evidence, challan was filed and the accused were charged with having committed the offences detailed here-in-above. The accused pleaded not guilty to the charges levelled against them and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State. 4. Admittedly, this is a case of circumstantial evidence and nobody witnessed the incident. It is well …4… settled law that in a case based on circumstantial evidence, the prosecution must not only prove all the circumstances against the accused but should also link the circumstances in such a fashion that the only irresistible conclusion which can be drawn is the guilt of the accused. The hypothesis of guilt should be conclusive, consistent and should exclude any chance of any other person having committed the offence. In case there is any chance of the accused being innocent, the Court has to decide the matter in favour of the accused. It is in the light of these principles that we have to examine the evidence led before the learned Trial Court in the present case. 5. The only two circumstances relied upon by the prosecution are (i) that the accused was last seen in the company of the accused and (ii) that the accused produced an iron rod which was allegedly used to murder the deceased. 6. Admittedly, the deceased and the accused were working together and they were co-employees. They had dinner together at Village Dramman. No evidence has been led on record to suggest that some …5… serious altercation took place between them at Dramman. 7. The only evidence produced by the prosecution in this regard was that of PW/7 Des Raj and PW/9 Ravinder Singh. According to PW/3, Balwan Singh, brother of the deceased, he was employed as a driver with the tractor bearing No.HP-38-4753. After finishing work, he parked the tractor in the house of its owner Kesar Singh and returned to Dramman. He was to catch a bus to his village. In the meantime, tractor No.HP-40- 821 came which was being driven by Jagdish Chand. Subhash Chand and Babu Ram alongwith the deceased were also sitting in the tractor. The driver of the tractor offered him a lift but he did not accept the offer and went home. On the next day in the morning, he was told by PW/2 about a dead body lying near the road side and thereafter, he alongwith other persons went to the spot and then made the complaint to the police, Ext.PW3/A. The version of this witness does not inspire confidence. He admitted that his village is about 4 kms from Dramman and it takes 1-1½ hours to walk this distance. He was already late and it was night and he had to go to home. He was being offered a lift on a tractor on which his …6… brother was already sitting. There is no reason why he should have refused to take the lift. It, therefore, appears that this version has been introduced later on. 8. PW/7 Des Raj is the owner of a Dhaba at Dramman. According to him, all the three other accused and deceased Kewal Singh took their meals at his Dhaba and then left at 9.30 p.m. He stated that the tractor was being driven by accused Babu Ram. This witness admitted that he did not know PW/3 but only recognized him by face. He also did not know the deceased but could recognize and identify him. He admitted that a number of persons had taken meals at his dhaba on that day. Even if the statement of this witness is accepted to be the gospel truth, all that is proved is that the deceased and the accused had taken their meals together in the dhaba of PW/7 on 27.6.1995. There is nothing unusual in this since they were all co-workers. 9. PW/9 Ravinder Singh is the third witness to the theory of last seen. He is a resident of village Manjhgran and his house is situated at a distance of 10 meters from the Mandi-Pathankot National Highway. According to this witness, on 27.6.1995 at about 10.00 p.m he was watching a programme on television at his house. He …7… heard the noise of a tractor and came out of his house on hearing this noise. He saw that four persons were sitting on a tractor and were abusing with each other. He identified accused Babu Ram. the driver of the tractor. According to him, the other three occupants of the tractor were the deceased Kewal Singh and the two remaining accused. The said tractor was on its way from Dramman to Pathankot side. The statement of this witness appears to be totally false. He admittedly resides in a house which is barely 10 meters away from the National Highway. There is no reason why on hearing the sound of a moving vehicle be it a tractor, bus or truck, he should come out of his house. His house being on the National Highway, he would be used to hear the sounds of vehicles crossing his house. There is nothing unusual about the sound of a tractor which would have made him leave his television programme and come outside. 10. It is not difficult to ascertain why this witness had deposed in this manner. He admitted that he was earlier serving as a Home Guard and had remained posted in police station, Shahpur for about 2 ½ months. It is obvious that he was a convenient witness for the police to procure. …8… 11. At best what can be said is that the accused and the deceased were last seen together at Dramman. The statement of PW/9 does not inspire confidence. The statement of PW/3 and 9 to the effect that there was a quarrel between the deceased and the accused is not corroborated by any other evidence on record. Even if we accept the statement of PW/7, there is no evidence led by the prosecution as to what happened after the deceased and the accused left Dramman. 12. Coming to the next circumstance, i.e., the recovery of the iron rod. At the outset, we may state that Dr.C.S.Rathore, PW/18 had totally ruled out the possibility of the rod being used to cause the main injury on the head which resulted in the death of the accused. No doubt, he stated that the rod may have caused the injury on the shoulder but had specifically stated that the rod could not have been used for the injury caused on the head. The prosecution led no evidence as to what weapon was used to cause the injury on the head of the deceased. The doctor in cross examination stated that the injury is possible in a motor vehicles accident or in case a vehicle strikes a person with velocity. He also stated that the said injury is possible if the head is struck …9… against the sharp edged projections of a tractor. The prosecution has not led any evidence to show whether projections of this nature existed on the tractor in question. The tractor was not checked in this regard and no blood stains were found on the tractor. Human blood was found on the clothes of the deceased. It is obvious that the deceased had died due to injuries caused to him which may be accidental or homicidal but the presence of blood on his clothes cannot in any manner be linked to the accused. 13. According to the prosecution, the clothes of Babu Ram accused were taken into possession vide memo Ext.PW4/H. As far as the clothes of Babu Ram, accused are concerned, it appears that they were taken into possession when the said accused was arrested. In Ext.PW4/H it is mentioned that Babu Ram was wearing these clothes at the time of his arrest. However, PW/4 has a different story to tell. According to him, these clothes were brought from the house of Babu Ram. Therefore, this evidence cannot be used to convict the accused. 14. In view of the above discussion, we are of the clear-cut opinion that the prosecution has miserably …10… failed to prove the circumstances or link them in the fashion as required by law. The learned Trial Court was justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any furnished, by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 3rd May, 2010 (Rajiv Sharma) (m) Judge