IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.154 of 1998 Reserved on: 16.6.2010 Decided on: 29th July, 2010 State of H.P …..Appellant. VERSUS Sandeep Jethi & ors. …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Mr.Dinesh Kumar, Advocate for respondent No.1. Mr.B.B.Vaid, Advocate for respondent No.2. Mr.M.S.Chandel, Advocate for respondent No.3. Deepak Gupta,Judge This appeal by the State is directed against the judgement dated 17.2.1998 delivered by the Learned 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Sessions Judge, Solan in Sessions Trial No.8-S/7 of 1997 whereby he acquitted the accused of having committed offences punishable under Sections 302/460/380/201/34/ 411 of the Indian Penal Code. 2. The prosecution case, in brief, is that Sh.Diwan Chand Bhalla (deceased) used to reside alongwith his son PW/2 Anupam Bhalla and daughter-in-law Smt.Sangeeta Bhalla in Diwan Villa near Jawahar Park, Solan. On 17.1.1997 Anupam Bhalla and his family went to Chandigarh in the morning. Sh.Diwan Chand Bhalla remained alone at the house. On 18.1.1997 PW/1 Vijay Puri who is the brother-in-law of Anupam Bhalla received a telephonic message from PW/8 Sanjay Gupta that something was amiss in the house of Sh.Diwan Chand Bhalla since the main door of the house on the ground floor was locked but the upper storey door was open. PW/8 Sanjay Gupta was informed at about 9.30 a.m. on 18.1.1997 by two migrant Kashmiri labourers namely Jahur and Maqbool that on the previous night they had heard cries of some person from the house of Sh.Bhalla and one boy was chasing the dog of Mr.Bhalla. When this boy was questioned by the Kashmiri labourers, he told them that …3… Sh.Diwan Chand Bhalla had gone to sleep and there was nothing to worry. 3. PW/1, Vijay Puri immediately went to the house of Diwan Chand Bhalla. He on seeing the position of the house telephoned his brother-in-law Anupam Bhalla who advised him to inform the police. Thereafter, Vijay Puri lodged Rapat No.7, Ext.PW12/A with the police on 18.1.1997. A police party headed by Inspector, Sh.Durga Dass (PW/21) came to the spot. ASI, Chaman Lal PW/18 was part of the police party. Additional S.P also arrived at the spot. Sh.Vijay Puri and two police personnel were asked to climb over the balcony and to enter the house. When they entered the house, they saw a gruesome scene. The household articles were lying scattered on the upper floor of the house. When they went to the ground floor, they found the body of Diwan Chand Bhalla lying on the floor of the dining room in a pool of blood. Dog squad, photographer and finger print expert were then called. According to the prosecution, two empty liquor bottles bearing labels of ‘Director Special’ and ‘Bagpipper’ alongwith glass tumbler etc. were lying on the dining table. Photographs were taken and finger prints were also lifted from the glass tumbler, Ext.P/4, …4… empty liquor bottles Ext.P/5, cover of the bowl, Ext.P.6 which were taken into possession vide memo Ext.PE. A button Ext.P/!, rope Ext.P/2, watch P/7 lying near the dead body were taken into possession vide memo Ext.PB. The dead body of Sh.Bhalla was sent for post mortem examination which was conducted by PW/20 Dr.Udhay Thakur who vide post mortem report, Ext.PW20/A opined that death occurred due to the multiple stab injuries. 4. The prosecution story is that Sandeep Jethi, accused was a student of Sh.Anupam Bhalla and knew him quite well and was on visiting terms with him. On 16.1.1997 Sandeep Jethi, accused had come to meet Anupam Bhalla with a request to get his friend admitted in college. Anupam Bhalla declined to help Sandeep Jethi but at about 9.15 p.m Sandeep Jethi accompanied by his friend came to the spot. Though Smt.Sangeeta Bhalla, wife of Anupam Bhalla was not willing to permit them to enter the house, they came in and demanded a glass of water which they took and then left without meeting Anupam Bhalla. Next morning on 17.1.1997 at about 10.45 a.m. Sandeep Jethi and his companion Vishal Walia, accused were noticed sitting outside the house of Mr.Bhalla. They again sought permission to meet …5… Anupam Bhalla and with his permission, they went to the upper storey and sought help of Anupam Bhalla for getting Vishal Walia admitted in M.A English. Thereafter, Anupam Bhalla and his family left for Chandigarh. During night Sh.Diwan Chand Bhalla was murdered and valuable goods stolen by the accused. 5. After the police visited the spot, Anupam Bhalla also reached Solan and then called his wife PW/6 Sangeeta Bhalla who after search of the house informed the police about the theft of gold ornaments and silver utensils from the house. Sh.Anupam Bhalla expressed his suspicion on Sandeep Jethi and his companion. Sandeep Jethi was apprehended by constable, Gurdev Singh (PW/16) on 22.1.1997 in the company of accused Veena Chauhan. They were taken to the police station, Solan. Sandeep Jethi told the police that Vishal Walia was also involved and had gone to Chandigarh. Vishal Walia was arrested at Chandigarh and brought back to Solan on the same day. 6. On 23.1.1997 the accused Vishal Walia made disclosure statement Ext.PW4/A which led to the recovery of a pair of jeans Ext.P/14, shirt Ext.P/15, jacket Ext.P/16, another jacket Ext.P/17 and pant Ext.P/18 from his house …6… vide memo Ext.PW4/C. Sandeep Jethi disclosed that he had sold the golden ornaments to a goldsmith at Solan and consequent to such disclosure statement (Ext.PW4/B) two pair of gold ear-rings, Ext.P/19 and Ext.P/20 were recovered from the goldsmith, Sh.Kamaldeep Verma, PW/5. These ornaments were identified by PW/6 Sangeeta Bhalla and taken into possession vide memo Ext.PW4/D. Sandeep Jethi, accused also informed the police that he had given gold ring Ext.P/12, silver plate Ext.P/8, silver bowl, Ext.P/9, silver spoon Ext.P/10 and bracelet Ext.P/11 to Smt.Veena Chauhan, accused who produced the same in the Police Station, Solan in the presence of Vijay Puri, PW/1 and these articles were taken into possession vide memo Ext.PE. These ornaments and utensils were also identified by PW/6 Sangeeta Bhalla. 7. According to the prosecution, the accused Vishal Walia had borrowed the weapon of offence, Khukri, Ext.P/13 from PW/3 Sh.Tikka Ram which was produced vide memo Ext.PW3/B. The Khukri Ext.P/13, button Ext.P/1, jackets Ext.P/16 and 17 alongwith wearing apparels of the deceased stained with blood were sent for serological examination to Forensic Science …7… Laboratory (F.S.L.), Junga. Glass tumbler Ext.P/4 and empty liquor bottles Ext.P/5 alongwith finger prints of suspects were sent to Finger Print Bureau, Phillaur and Madhuwan. According to the Finger Print Bureau, Haryana at Madhuwan vide its report, Ext.PW21/G, the glass tumbler contained thumb impression of Sandeep Jethi, accused. According to F.S.L., Junga, vide its report Ext.PW21/E, the button Ext.P/1 tallied with the other buttons on the jacket of Vishal Walia. On the basis of this evidence, the accused were arraigned. They were charged with having committed the offences detailed here-in-above. They 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. 8. Admittedly, this is a case of circumstantial evidence and nobody has witnessed the incident. The prosecution to prove its case relies upon the following circumstances:- 1. Knowledge of the accused that Shri Diwan Chand Bhalla on night of 17.1.1997 would be all alone in the house. 2. Presence of thumb left print of Sandeep Jethi on glass tumbler Ext.P4 recovered from dining table …8… of the dining room of the house of Shri Diwan Chand Bhalla, near which dead body of Shri Diwan Chand Bhalla was found. 3. Committing theft of golden ornaments and silver utensils from the house and recovery of the same consequent to a disclosure statement of both the accused. 4. Borrowing of khukri Ext.P13 by Shri Vishal Walia from Shri Tikka Ram PW-3 for committing offence of murder and its recovery. 5. Recovery of button Ext.P1 lying near the dead body and tallying of the same with other button on the jacket of Vishal Walia got recovered by Vishal Walia consequent to a disclosure statement. 6. Recovery of blood stained jacket of Vishal Walia consequent to disclosure statement of Vishal Walia from his house. 7. Recovery of stolen silver utensils and golden ring from the possession of Veena Chauhan. 9. Circumstance No.1 has been held to have been proved and we are also in agreement with the learned Trial Court that the statements of Aupam Bhalla and Sangeeta Bhalla clearly show that the accused had visited the house of the Bhallas and were aware that Anupam Bhalla and his family had left for Chandigarh and Sh.Diwan Chand Bhalla was alone in the house. …9… 10. The second incriminating circumstance is the presence of left thumb print of Sandeep Jethi on glass tumbler Ext.P4. According to the prosecution when PW/1 Vijay Puri alonwith two police personnel entered the house of Anupam Bhalla after climbing through the first floor, they noticed one glass tumbler and two empty liquor bottles alongwith salad plate on the dining table. Thereafter, SHO, Durga Dass (PW/21) got the lock of the front door of the ground floor broken and entered the house. He also saw the dead body, an empty glass and two empty liquor bottles. He did not touch anything and immediately called for the dog squad, the photographer and PW/11, Karnail Singh who was to lift the finger prints. There is no manner of doubt that the deceased Diwan Chand Bhalla was murdered and his dead body was lying in the dining room. According to PW/1, PW/11 and PW/21, one glass tumbler alongwith two empty liquor bottles were lying on the dining table. Sh.Karnail Singh, PW/11 sprinkled powder on the glass and liquor bottles to preserve the finger-prints and then packed the same in cartons which were sealed. Thereafter, the cartons were sent to the Finger Print Bureau, Phillaur. Those articles containing finger prints were compared with the …10… specimen thumb impression of Sandeep Jethi and Vishal Walia, accused and the other persons such as Anupam Bhalla, Mohd.Yasin, Manzur Ahmad etc. The Finger Print Bureau, Phillaur vide its report Ext.P/21F did not find that the thumb marks were of the accused. Thereafter on 10.3.1997, the Superintendent of Police, Solan called for a second opinion and sent the entire material to the Director, Finger Print Bureau, Haryana at Madhuwan (Karnal). However, on this occasion the empty liquor bottles were not sent and only one glass tumbler and steel lid of a bowl were sent. Vide opinion Ext.P21/G, the Director, Finger Print Bureau, Madhuban, Karnal opined that the glass tumbler contained the left thumb impression of Sandeep Jethi. Thus there are two conflicting opinions with regard to the finger-prints. According to the report received from Finger Print Bureau, Phillaur, none of the articles contained the thumb impression of the accused whereas the latter report received from Finger Print Bureau, Madhuwan shows that the glass tumbler contained the left thumb impression of the accused Sandeep Jethi. 11. A very important aspect of this matter is that as per PW/1 Vijay Puri, PW/11 Karnail Singh and PW/21 …11… Durga Dass, two empty bottles of liquor and one glass tumbler were lying on the dining table. The photographs of the spot were admittedly taken immediately on the spot. These photographs are Ext.PW9/A-1 to PW9/A-13. The dining table is clearly visible in the photograph Ext.PW9/A-2. In this photograph, there is only one bottle lying on the dining table. There is no glass tumbler on the table. It is thus apparent that when Sh.Pawan Kumar, PW/9 took the photographs, there was only one liquor bottle on the dining table. Where did the second liquor bottle and glass tumbler come from? This has not been explained by the prosecution. Keeping in view the fact that there are two conflicting reports of the experts and the fact that the photographer admitted that when he took the photographs, there was only one liquor bottle on the dining table and there was no glass tumbler on the table, the probability of the second liquor bottle and glass tumbler having been introduced at a later stage cannot be ruled out. Admittedly, according to the Bhallas, Sandeep Jethi drank water in a glass on the evening of 16.1.1997. Therefore, the possibility of this glass having been produced before the police also cannot be ruled out. …12… 12. These facts also show that the investigation was not fair. Once an opinion had been received from an expert which went in favour of the accused what was the need for getting a second opinion? No witness has stepped into the witness box to state what was the reason for seeking the second opinion of the expert? Men may lie but circumstances do not. This adage is fully applicable to the present case. If the glass tumbler and second liquor bottle had been lying on the table then they should have appeared in the photographs. This also clearly shows that the glass tumbler and second liquor bottle were planted at a later stage. This circumstance has not been proved against the accused. 13. The third circumstance relied upon by the prosecution is the recovery of the stolen gold ornaments and silver utensils consequent to the alleged disclosure statement made by both the accused. Sandeep Jethi and Vishal Walia were arrested on 12.1.1997, the former at Solan and his companion later at Chandigarh. According to the prosecution, on 23.1.1997 Sandeep Jethi while in custody of Durga Dass and in the presence of PW/4 Sohan Singh and one Sh.Mahinder Sahni (not examined) made disclosure statement that he had sold …13… two pairs of ear rings to a goldsmith of Solan Town. According to PW/4, the accused did not name the goldsmith but stated that he could lead the police to the shop of the goldsmith. This disclosure statement (PW4/B) was recorded. Thereafter, according to the prosecution, Sandeep Jethi, accused led them to the shop of PW/5 Kamaldeep, goldsmith and then the police recovered two pairs of gold ear rings. From the shop, Anupam Bhalla and Sangeeta Bhalla were called for. Smt.Sangeeta Bhalla identified the ear-rings Ext.P19 and Ext.P20 and thereafter, they were taken into possession vide memo Ext.PW-4D. Out of the two witnesses to the disclosure statement, only Sh.Sohan Singh was examined in Court. 14. Sohan Singh appeared as PW/4. He stated that on 23.1.1997, he was called to the Police Station by the SHO where Mohinder Sahni was already present. The SHO had already recorded the statements of both the accused Sandeep Jethi and Vishal Walia. However, the signatures on such statements were taken in his presence. He also signed the statements. It is thus obvious that Sandeep Jethi was not interrogated in the presence of Sohan Singh nor any disclosure statement was made by …14… Sandeep Jethi in the presence of Sohan Singh. Sandeep Jethi only signed the disclosure statement, Ext.PW4/B in the presence of Sohan Singh which had already been recorded and this witness attested the same. The law with regard to the disclosure statement is that the witness must depose that the person who was in custody of the police made a statement in his presence which led to the recovery of certain items. Therefore, this disclosure statement cannot be said to be a disclosure statement in the eyes of law. 15. Even assuming that this disclosure statement was validly recorded, the said statement Ext.PW4/B does not contain the name or address of the goldsmith to whom the golden ornaments were allegedly sold by Sandeep Jethi, accused. According to PW/4 Sohan Singh, after the clothes were recovered pursuant to the disclosure statement, Ext.PW4/A made by Vishal Walia, the police straightaway went to the shop “Reetika Jeweller” owned by PW/5 Kamaljeet. How did the police know that they had to go to “Reetika Jeweller” when this fact was not recorded in the disclosure statement Ext.PW4/B. There is no explanation in this regard. No doubt, according to PW/5, the stolen items were taken …15… into possession but the prosecution has miserably failed to prove that the recovery was consequent to the disclosure statement made by the Sandeep Jethi, accused. It would also be important to notice that PW/5 Kamaljeet was initially arrested in the case and in fact remained in custody for one day and, therefore, his statement cannot be accepted at its face value. 16. Sandeep Jethi is also alleged to be connected in the crime on account of the fact that he after the murder and theft handed over silver plate, Ext.P8, silver bowl Ext.P9, sliver spoon Ext.P10, silver bracelet Ext.P11 and gold ring Ext.P12 to his friend and co-accused Veena Chauhan. According to the Investigating Officer, when they interrogated Sandeep Jethi, they came to know about this fact. Thereafter, Veena Chauhan was directed to produce the articles and on 26.1.1997 she produced the articles in the Police Station. The police version cannot be believed. Admittedly, even according to the prosecution, the alleged disclosure statement was made on 23.1.1997. When Sandeep Jethi was being interrogated, his disclosure statement was not recorded. Admittedly, Veena Chauhan was accompanying Sandeep Jethi …16… when he was apprehended by Constable Gurdev Singh (PW/16) on 22.1.1997. Whereas Sandeep Jethi was taken to the Police Station Veena Chauhan was permitted to go home. At that stage, no attempt was made to arrest Veena Chauhan nor she was associated with the investigation. On 23.1.1997, no attempt was made to recover the aforesaid articles from Veena Chauhan even though Sandeep Jethi allegedly made the disclosure statement on 23.1.1997. According to the prosecution, on 26.1.1997 when PW/1 Vijay Puri and one Sita Ram were sitting in the police station, Veena Chauhan came to the Police Station and produced the aforesaid articles. Then Sangeeta Bhalla was called to identify the same. This version of the police is totally false. If Veena Chauhan admittedly knew on 22.1.1997 itself that her friend had been arrested for the murder of Diwan Chand Bhalla, she would have either disposed of the articles or if she was honest, produced the same before the police on the same date itself. There is no explanation as to why out of the blue on 26.1.1997 she herself came to the Police Station to produce the aforesaid stolen items. There is no explanation why the police itself did not take any steps to get the articles …17… recovered from Veena Chauhan from 23.1.1997 when Sandeep Jethi allegedly informed the police about his having given these articles to his co-accused Veena Chauhan till 26.1.1997. Furthermore, the recovery witness PW/1 Vijay Puri stated that on 26.1.1997 he was called to the Police Station but the police did not disclose why he was called there. Sangeeta Bhalla was already present. Veena Chauhan and Sita Ram were also present at that time and then Veena Chauhan produced certain articles before the police and stated that these articles had been given to her by accused Sandeep Jethi. How did the police know that Veena Chauhan was coming to the police station on that day and at that particular time. It is, therefore, obvious that either Veena Chauhan had made a statement prior to 26.1.1997 or the entire disclosure story is false and made up. Therefore, this circumstance has not been proved against the accused. 17. The fourth circumstance relied upon by the prosecution is that the accused Vishal Walia borrowed the weapon of offence, (Khukri) Ext.P13 from PW/3 Tikka Ram for committing offence of murder. According to the Serological report, Khukri Ext.P13 was having same blood of Group-B with which wearing apparels of the deceased …18… were also found stained. According to the prosecution, the accused had washed their clothes which they wore at the time of the occurrence. If they could wash their clothes, what prevented them from washing the Khukri? Furthermore, PW/3 Sh.Tikka Ram has not supported the prosecution case at all. He denied that the Khukri was borrowed from him by Sh.Vishal Walia, accused. Though this witness was declared hostile and was cross examined by the prosecution, nothing material has been extracted which was favourable to the prosecution. Though this witness admitted that he had produced the Khukri (Ext.P13) to the police and the same was seized by the police vide memo Ext.PW3/B, he clarified that police had threatened to arrest him and thereafter, he took a khukri from his brother and handed it over to the police. According to the prosecution, the Khukri was produced by Sh.Tikka Ram in the presence of PW/7 Kamal Vig. However, Sh.Kamal Vig stated that when he arrived at the Police Station, the khukri was already lying on the table. In view of the aforesaid fact, this circumstance has not been proved and established by the prosecution. 18. The fifth circumstance relied upon by the prosecution is that one button Ext.P1 was found near the …19… dead body of Diwan Chand Bhalla which tallied with the other buttons on the jacket of Vishal Walia. This button was taken into possession vide memo Ext.PB. The words “DAVID WINTER” were inscribed on the button. It is the prosecution case that consequent to the disclosure statement Ext.PW4/A made by the accused Vishal Walia, a jacket Ext.P17 was recovered from the house of Vishal Walia, accused. This jacket also had buttons with the words ‘DAVID WINTER” inscribed on them. The Chemical Examiner of the Forensic Science Laboratory, Junga vide his report Ext.PW21/E found that the button in question is similar to the buttons on the jacket Ext.P17. As far as the disclosure statement Ext.PW4/A is concerned, Sohan Singh (PW/4) was produced to prove this disclosure statement as already detailed above. His version is that this disclosure statement had already been reduced in writing when he reached police station. According to him, in his presence Vishal Walia only appended his signature on the said disclosure statement. Therefore, the disclosure statement has not been proved in accordance with law. In fact, the prosecution has also failed to prove that the jacket, in question, belongs to Vishal Walia. …20… 19. Another important aspect is that the opinion of the Chemical Examiner, FSL, Junga is not a final opinion. It only states that the button is similar to the other buttons but it cannot be said with certainty that this button belongs to the jacket of Vishal Walia alone. Another important aspect is that in the photographs Ext.PW9/A1 to PW9/A12, there are some photographs PW9/A1 to PW9/A4 and PW9/A7 which are of the body of the deceased. These photographs were taken when the police reached the spot. Though according to the prosecution, the button was found near the head of the deceased even in the photographs which have close up of the head of the deceased, the button is not visible. This also casts a grave doubt on the persecution story. 20. The other circumstance relied upon by the prosecution is the recovery of jacket Ext.P/16, jean Ext.P/17, shirt Ext.P/15 and pant Ext.P/18 allegedly recovered from the house of Vishal Walia pursuant to his disclosure statement Ext.PW4/A. On serological examination, blood was found on the jacket Ext.P15. As discussed above, the disclosure statement Ext.PW4/A cannot be relied upon since Sh.Sohan Singh, the only witness to the disclosure statement produced by the …21… prosecution did not state that any fact leading to the recovery of these clothes was disclosed by the accused in his presence. More importantly, accordingly to PW/21 Sh.Durga Dass, these clothes could not be sealed and wrapped since they had been washed and were wet. According to him, they were permitted to dry and thereafter were taken into possession. The blood group on the jacket could not be ascertained. Once the clothes were not sealed, the possibility of the same being tampered with at a later stage cannot be ruled out. The prosecution should have led evidence