IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.506 of 1999 Reserved on: July 24, 2010 Date of Decision : November 3, 2010 State of H.P. …Appellant. Versus: Jagtar Singh & Anr. …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. Rajesh Mandhotra. Dy. A. G. For all respondents : Pt. Om Parkash, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 13.1.1997, accused were put to trial. In terms of judgment dated 23.3.1998 passed by the learned Addl. Sessions Judge(II), Kangra at Dharamshala, in Sessions Case No. 25- N/VII-1997 titled as State of H.P. vs. Jagtar Singh & Anr., the accused stand acquitted of the charged offence. 2. It is the case of the prosecution that Sh. Kanshi Ram was employed as a Chowkidar with M/s. Nitco Roadways Company at Damtal, H.P. He was also doing the work of night Chowkidar. Sh. Ram Lal (PW-20) was also working as a Palledar (labourer). On 12.1.1997, Sh. Dhani Ram (PW-4) also an 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 employee of the Company after locking godown of the company went to his house. On 13.1.1997 at about 7.00 a.m., PW-20 saw the locks of the godown to be broken and the shutter open. In the godown he noticed the dead body of Kanshi Ram. He immediately informed Sh. Rasal Singh (PW-1) who in turn reported the matter to the police. Since Sh. Kanshi Ram had not returned home after duty in the morning, his son Sh. Raju (PW- 2) also made inquiries from PW-1. He was informed about the dead body lying in the godown. Both Raju and Rasal Singh then went to the godown where PW-2 identified the dead body to be that of his father. Both PW-1 & PW-2 went to police post, Damtal and lodged rapat (Ext.PW-12/A). In the meanwhile, PW-4 came at the spot and noticed that theft had also taken place in the godown. After verifying the stock he lodged a report (Ext.PW- 4/B) with the police that goods worth ` 1,07,000/- were stolen the same night. On the basis of rapat (Ext.PW-12/A), F.I.R. No.26/97 (Ext.PW-16/A) dated 13.1.1997 under Sections 460, 302 IPC was registered with Police Station, Indora. Inspector Jagdish Chand (PW-21) commenced investigation and got the site photographed through Sh. Sita Ram (PW-19). Inquest report (Ext.PW-2/A) was prepared and sample of the blood lying near the dead body was collected vide memo (Ext.PW-4/A). Site plan (Ext.PW-21/A) was prepared and post mortem of the dead body was got conducted through Dr. R. K. Chaudhary (PW-5), who submitted his report (Ext.PW-5/B). During investigation it so revealed that in the night intervening 3 12th/13th January, 1997, one Ashwani Kumar (PW-6) was returning from Punjab to his village Indpur. While he was crossing the spot at about 1/1.30 a.m. he saw truck No. PBN 7339 parked just near the godown of the Nitco Company. The said vehicle was traced and it was found that the same was registered in the name of the wife of accused Jagtar Singh who himself used to drive the vehicle. Accused Jagtar Singh was also seen driving the vehicle at Chakki Khad. Investigations revealed that out of the two tyres stolen from the godown were infact fitted on the wheels of the vehicle. On further interrogation accused Jagtar Singh made a disclosure statement to the effect that he and Raj Kumar @ Raju and Dharam Pal @ Kala had broken the locks of the godown and after entering the premises not only committed theft but also murdered Kanshi Ram. Weapon of offence i.e. sword (Ext.P3) was also got recovered by the accused. With the completion of investigation challan was presented in the Court for trial. 3. All the accused were charged for having committed an offence punishable under Sections 406, 302 read with Section 34 IPC to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 21 witnesses. The Court found that no incriminating circumstance was found against accused Dharam Pal and accordingly acquitted him vide orders dated 5.3.1998. Statements of other two accused persons under Section 313 Cr.PC were recorded. 4 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. Prosecution has tried to prove the charge against the accused on the basis of circumstantial evidence. 7. Law with respect to appreciation of circumstantial evidence is well settled. Beyond reasonable doubt prosecution has to prove the guilt by leading cogent and convincing material. The circumstance must be of definite tendency unerringly pointing towards guilt of the accused. Circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability crime stands committed by the accused and none else. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. It should be consistent with the guilt of the accused and inconsistent with his innocence. 7. Circumstances relied upon by the prosecution, as culled out by the Court below are as under:- “(1) Deceased Kanshi Ram was murdered in the godown of M/s. Nitco Company, Damtal in the night intervening 12.1.97 and 13.1.97 and A-1 Jagtar Singh having been seen present in Damtal in the evening of 12.1.97 and also speeding away Truck No. PBN 7339 through Damtal road in front of Nitco Company at dead of night; (2) Theft of various goods including 6 tyres having taken place from the godown of Nitco Company, Damtal on the night intervening 12th & 13th January, 1997 and two such tyres having been recovered from the Truck No. PBN-7339 of A-1 Jagtar Singh, and 5 (3) Disclosure statements of A-2 Raj Kumar alias Raju and consequent recovery of blood stained sword at his instance alleged to have been used in the murder of Kanshi Ram.” 8. It is not in dispute that dead body of Sh. Kanshi Ram was found in the godown of Nitco Company in the morning of 13.1.1997. In order to prove presence of the accused at the spot in the night of 12.1.1997, prosecution has relied upon the versions of S/Sh. Ashwani Kumar (PW-6) and Sarwan Singh (PW-18). Both these witnesses have not supported the prosecution case. They were declared hostile, yet nothing incriminating could come out in their statements which would even remotely link the accused to the charged offence. Nothing material has been elicited in their testimonies, which in any manner would show that they are suppressing the truth. 9. Sh. Ashwani Kumar (PW-6) was returning to his house from Punjab. Except for his bald statement there is nothing else on record to prove this fact. There is also nothing on record to prove that Sh. Sarwan Singh (PW-18) was coming from the side of Chakki Khad towards G.T. Road Damtal and had not only met accused Jagtar Singh but also had talks with him. 10. Accused Jagtar Singh undisputedly drives a truck owned by his wife. He is a resident of Punjab and the vehicle is also registered in that State. He may have driven the truck to Himachal Pradesh in the course of business but however that fact by itself would not link the accused to the charged offence. Further, none of the prosecution witnesses have seen accused No. 2 and original accused No. 3 with Jagtar Singh in Himachal Pradesh. Thus, charge of common intension is not made out at all. 6 11. With regard to second circumstance prosecution has relied upon depositions of S/Sh. Manohar Lal (PW-7) and Surinder Kumar (PW- 8). They are witnesses to the alleged disclosure statement (Ext.PW-7/A) made by the accused. These witnesses have not supported the prosecution at all. They have been declared hostile and nothing incriminating has come out in their statements. 12. Further, we feel that the statement of PW-4 is contradictory. According to him tyres which were stolen had no identification marks except for the name of the manufacture i.e Dunlop. In the instant case, tyres recovered from the front wheel of the truck were of different make and brand. They were J. K. tyres Nylon 900 x 200. Now PW-4 has not placed on record bills or stock register showing that tyres stolen were of make Dunlop and not J. K. tyres. Initially he states that tyres recovered were fitted on the front wheels of the truck but later on states that they were found fitted on the rear wheels. Prosecution has not been able to link the tyres fitted on the truck to be the very same ones which infact were stolen from the godown of Nitco company. 13. With regard to the third circumstance, prosecution has again relied upon statements of PW-4 and Sh. Om Prakash (PW-9). We find that there are material contradictions in their statements. According to PW-4, sword (Ext. P-3) was recovered on the basis of disclosure statement (Ext.PD) made by accused Raj Kumar. Significantly he states that disclosure statement and recovery memos were signed together after recovery of the sword by the police. As per the version of this witness sword was recovered from the heap of sand adjoining the public path near Chakki khad. This version stands materially contradicted by PW-9, 7 according to whom sword was recovered from the heap of rubbish behind the house of the accused. He states that after recovery sword was brought to the police station. Now, PW-1 has introduced a new version. According to him, he had noticed the sword with blood stains lying next to the dead body of Kanshi Ram. Now, if this is true then obviously disclosure statement and recovery shown by the police is false. 14. The genesis and the origin of the occurrence appears to be shrouded in deep mystery and the presence of the spot witnesses to be highly doubtful. 15. The accused have 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 vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said 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. (rana)