IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 65 of 1999. Decided on: 20.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Sher Singh @ Sheru. …Respondent. 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. Rajesh Mandhotra, Deputy Advocate General. For the respondent : Mr. B.D. Sharma, Advocate vice Mr. Lalit Kumar Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 15.12.1998, delivered by the learned Sessions Judge, Solan in Sessions Trial No. 6-S/7 of 1998, whereby the accused has been acquitted of having committed offences punishable under Sections 363, 366, 376 and 302/201 of the Indian Penal Code. 2. The prosecution case, in brief, is that Jeet Ram (PW- 1), father of the prosecutrix works as a labourer. On 21st April, 1997, he had gone out to work and returned home at about 1:00 a.m. One of his daughters (name withheld and hereinafter referred to as the victim), was found missing. This daughter was aged about 17 years. His wife told him that the victim might 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. have gone to the house of Prem Raj, brother of Jeet Ram to watch television. Next morning, i.e. on 22nd April, 1997, the victim was not found in the house of Prem Raj. Thereafter, a search was started to find the victim. Next day, i.e. on 23.04.1997, PW-1 Jeet Ram came to know that the accused, who is the resident of the same village, was also missing from the night intervening 21/22-04-1997. Jeet Ram (PW-1) enquired about the whereabouts of the accused from Shri Dharam Singh, brother of the accused. Thereafter, Jeet Ram (PW-1) accompanied by his brother, Roop Ram (PW-3) and Dharam Singh went to Baddi to search for Sher Singh accused in the factory where he used to work earlier. 3. On 25.04.1997 from Baddi, Dharam Singh telephoned his sister Gita Devi at Chandigarh and came to know that the accused had visited her on 23.04.1997 for a short while. On 26.04.1997, they all went to Chandigarh and the accused was found in the house of Gita Devi. Jeet Ram (PW-1), father of the victim, enquired about the whereabouts of his daughter from the accused, who told him that the victim had been left behind at Haripur Gurdwara. Despite the request of Jeet Ram, Dharam Singh and the accused refused to help him in tracing the victim. Then, Jeet Ram (PW-1) and Roop Ram (PW-3) came to Haripur and searched for the victim, but could not find her. On the next morning, i.e., 27.04.1997, Jeet Ram lodged the report Ex.-PW14/A at Police Post Kuthar, on the basis of which, F.I.R. Ex.-PW-15/A was registered at Police Station, Kasauli. 4. On the basis of this F.I.R., the accused was arrested on 28.04.1997 itself. According to the prosecution, on 04.05.1997, the accused made a disclosure statement Ex.- PW4/A and as a result of such disclosure statement, the dead body of victim was recovered from Jabli Jungle. It was the accused who pointed out the dead body to the police party and a half filled bottle of poison was also recovered lying next to the dead body. According to the prosecution, the accused after raping the victim, forcibly administered poison to her and killed her. After the dead body was recovered, the same was subjected to post-mortem by PW-8 Dr. B.S. Dhiman and Dr. V.K. Kaushik. After completing of all the codal formalities, the police filed a challan against the accused, who was charged with having committed the offences of kidnapping, raping and thereafter murdering the victim. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 20 witnesses in support of its case. After trial, the accused has been acquitted. Hence, the present appeal by the State. 5. We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and Mr. B.D. Sharma, learned vice counsel for the accused, and have gone through the entire record of the case. 6. At the outset, we may note that prosecution has miserably failed to prove that it was the accused who murdered the victim. First of all, we may take up the post-mortem report Ex.-PW8/A, proved by Dr. B.S. Dhiman (PW-8). The doctor in his statement had clearly stated that the post-mortem was conducted on 05.05.1997 at 1 p.m. He has also stated that the time that elapsed between death and post-mortem was 2 to 7 days. There is no cross-examination on this aspect of his statement. Therefore, as per this post-mortem report, the victim died after 1:00 p.m. on 28th April, 1997 and before 1:00 p.m. of 3rd May, 1997. The doctor has given no clear cut opinion that the victim was subjected to sexual intercourse just before her death. 7. As noted above, the father of the victim PW-1 Jeet Ram and his brother PW-3 Roop Ram had traced out the accused at the house of his sister on 26th May, 1997. In fact, the accused was arrested on 28.04.1997 at 2:00 p.m. from his village Ghyali, Tehsil Kasauli, whereas the dead body has been recovered from Jabli Jungle. The victim died some time after 1:00 p.m. Therefore, the chance of the accused having murdered the victim is extremely remote. 8. This is a case based totally on circumstantial evidence, since nobody has witnessed the offence. The following circumstances have been relied upon by the prosecution: “1 Accused found missing from the same village on the same date on which Sunita was missing; 2. Last seen together; 3. Conduct of the accused and his sister concealing the presence of the accused when his brother Dharam Singh contacted his sister Gita Devi at Chandigarh; 4. Knowledge about the place of dead body of Sunita and getting the dead body recovered consequent to disclosure statement.” 9. As far as first circumstance is concerned, other than the bald statements of Jeet Ram (PW-1) and his brother Roop Ram (PW-3), there is no other evidence to support the prosecution case. We can understand that the prosecution may not have associated Dharam Singh who was the real brother of the accused. However, when a young girl and a boy were missing from the village, the entire village could have come to know about this fact and it would have been easy for the prosecution to have associated and examined other villagers, who could have proved that the accused and the victim had left the village on the same day. Therefore, this circumstance has not been proved beyond reasonable doubt. 10. As far as the theory of last seen is concerned, the prosecution has relied upon the statement of PW-2 Likesh Chand, who runs a tea shop near Haripur. According to him, on 22.04.1997, the victim and the accused had taken tea and Pakoras in his shop. He has identified the victim from the clothes which she was wearing, i.e., Shirt Ex.-P3, Salwar Ex.-P2 and Shoes Ex. -P1 and her photographs. These photographs have not been proved on record. Even otherwise, it is very difficult to believe that a shop-keeper, who admittedly did not know the victim before, could recognize the victim only on the basis of the clothes after such a long period. Even assuming for the sake of arguments that he correctly identified the lady who accompanied the accused and the deceased had taken tea at a shop, this identification is of 22.04.1997, whereas the murder took place after 28.04.1997. Thus, it is clear that the victim was alive after being seen by this witness for 6 days and, therefore, the theory of last seen is not applicable in the present case. 11. Circumstance No. 3 has not been proved at all. In fact, the first report was lodged by the complainant and even his testimony in court as PW-1, clearly shows that Dharam Singh, brother of the deceased had accompanied him from the village to Baddi and then to Chandigarh. He was not trying to shield his brother. Even, as far as the sister is concerned, she clearly told them on phone that the brother had come on 23rd May, 1997 to her house. When they went to Chandigarh, the accused was found in the house of his sister. We cannot loose sight of the fact that till that date, i.e., 26.04.1997, the victim was alive. Therefore, there was no question of the sister trying to shield the brother. 12. The last circumstance is the recovery of the dead body of the victim at the instance of the accused. The accused was arrested on 28.04.1997. During custody, he allegedly made the disclosure statement Ex.-PW4/A. The witnesses to the statement are PW-1 Jeet Ram, father of the victim and Sant Lal (PW-4). As far as Sant Lal is concerned, he has not supported the prosecution case and turned hostile, though in cross- examination he admitted the suggestions put by the prosecution. The statement of PW-1 Jeet Ram has to be scrutinized with great care and caution since he is the father of the victim. It is also not disputed that the dead body was recovered from a Jungle which was open and accessible to all member of the public. The accused was arrested on 28.04.1997 and the disclosure statement was made on 04.05.1997, i.e., six days after his arrest. There is no explanation as to what PW-1 and PW-4 were doing in the Police Station at about 6:00 a.m. on 04.05.1997. In fact, Jeet Ram while appearing as PW-1, has clearly stated that the Police had called him from Haripur to Police post Kuthar. When he reached the Police Post Kuthar alongwith his brother Sham Lal, PW-4 Sant Lal and Mani Ram were already present there. The witness also stated that he was told by a Constable at Haripur that some clue regarding the dead body had been found by them. He was told by A.S.I., Police Post Kuthar that accused Sher Singh had told them that a body was lying in Jabli Jungle. Therefore, the disclosure statement was in fact not made in the presence of these witnesses. It is only the recovery which has been witnessed by them. The statement had already been made to the Police. Therefore, this circumstance also cannot be used against the accused. 13. In view of the aforesaid discussion, it is clear that the prosecution has failed to prove that the accused alone could have murdered the deceased. The possibility of the deceased having committed suicide or having been murdered by some other person, can not be ruled out. The learned trial court was, therefore, justified in giving the benefit to the accused. Consequently, there is no merit in the appeal, which is accordingly dismissed. The bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge May 20, 2010. (bhupender)