HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 104 of 2005 Reserved on: 10.3.2009. Decided on: 20.3.2007. Sone Lal ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Virender Thakur, Advocate. For the respondent: Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J.: This is an appeal filed by the appellant through jail against the judgment, dated 18.9.2004, of the court of ld. Sessions Judge, Hamirpur, vide which the appellant was held guilty under Section 302 IPC and was sentenced to imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, he was to undergo further imprisonment for six months. Briefly stated the facts of the case are that on 7.2.2004 at 10.30 a.m., a statement under Section 154 of the Cr.P.C. was made by Shashi Mohan to the SHO, Police Station, Bhoranj in which he alleged that he is a resident of village Doh and is the Up Pradhan of the Gram Panchayat. He further alleged that, as usual, today when he went for morning walk, at about 8.00 a.m. when he ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. reached near Dalan-da-Gahra Chowk, he saw a person lying on the road and an axe was embedded in his neck and the person appeared to have sustained injuries and blood was scattered all around. A drat was also lying nearby. His statement was recorded by the police in which he alleged that the said person appeared to have been killed and he could not identify the said person. On this rapat, a case was registered by the police. The police party consisting of the SHO and other police officials went to the spot and recorded the statement of the complainant. On enquiry, it was found that the dead body was that of Bansu Lal, a migrant labourer from Madhya Pradesh, who was identified by PW-9 Hira Lal. An inquest report was prepared. The body was sent for post mortem examination and after investigation, the challan was filed in the court. According to the prosecution story, PW-6 Piar Chand, a Contractor, had undertaken work of a cow shed in village Doh of PW-5 Joginder Singh and his wife PW-4 Kesri Devi. The said Piar Chand had engaged migrant labourers including the appellant Sone Lal and the deceased Bansu Lal. The deceased had been engaged by Piar Chand to cut and collect bamboos and the appellant had also been engaged for the construction work by PW-6 Piar Chand. The prosecution collected some evidence in regard to last seen, recorded the statement of one of the migrant labourer’s wife, namely, PW-8 Nita Bai before whom the appellant is alleged to have made a confession regarding killing of the deceased. During investigation, recovery of blood stained clothes and money was also effected at the instance of the appellant. The prosecution case rested solely upon circumstantial evidence since there was no direct evidence. The learned trial Court had held, after appraisal of the evidence, that the chain of circumstances was complete and it pointed out only to the guilt of the appellant, who was held guilty and convicted and sentenced accordingly, as detailed above. We have heard the learned counsel for the parties and have gone through the evidence on record. The submissions made by the learned counsel for the appellant were that the circumstantial evidence relied upon by the learned trial Court is not sufficient to complete the chain of circumstances pointing out to the guilt of the appellant. It was submitted that the circumstantial evidence is not such upon which implicit reliance can be placed. It was also submitted that no disclosure statement was made by the appellant and no recoveries were effected and the evidence in regard to the last seen or confessional statement is not reliable and the link is not established form the circumstances to hold that the guilt of the appellant has been proved beyond any reasonable doubt. During the course of arguments, we have been taken through the evidence produced by the prosecution and on appraisal of the evidence led by the prosecution, we are of the view, for the reasons given below, that all the circumstances relied upon by the learned trial Court, numbering four, suffer from one infirmity or the other leading to the conclusion that these circumstances cannot be said to be sufficient to prove the guilt of the appellant beyond any reasonable doubt. We will refer below to the circumstances relied upon by the learned trial court. The first circumstance relied upon by the learned trial Court was the evidence in regard to motive. PW-6 Piar Chand, who had deployed the deceased and the appellant for the construction work, has stated that on 6.2.2004 i.e. one day prior to the date when the dead body was recovered, the appellant had come to him and had taken expenses of Rs.200/- and demanded more money that he was to go to his native place. However, he showed his inability to pay more and requested him to go after putting on the lintel. He stated that the appellant did not work with him on that day on the plea that he was suffering from stomach ache. He also stated that the appellant had come to him at 10.00 a.m. on that day and was drunk. The other witness relied upon was PW-8 Nita Bai, who has stated that the appellant had come to her quarter in the evening of 6.2.2004. Prior to that, she had been apprised by the deceased Bansu Lal that his sum of Rs.1500/- was missing which was taken by the accused and they had a quarrel and he apprehended for his life from the accused. Her statement shall be discussed below, in detail, which will show that her statement cannot be relied upon implicitly since she had changed her stand several times. In her statement, PW- 8 Nita Bai has not stated about the time when the deceased came to her and told her that his sum of Rs.1500/- was missing or that he had quarreled with the appellant. In case both had quarreled during day time, when was the opportunity for the deceased to come and inform PW-8 about this theft, though it has come up on record that Nita Bai’s husband Sham Lal and the deceased were sharing same quarter in which Nita Bai was also living. However, the statement of PW-4 kesri Devi shows that she had seen Bansu Lal (deceased) and the accused alongwith axe and drat leaving the place at about 12.30 noon. In case both had quarreled on the same day in regard to theft allegedly committed by the appellant, where was the occasion for both of them to go together in the day time and there is nothing to establish at what time the deceased came back and informed PW-8 Nita Bai about the theft. This is in all the evidence led in regard to the motive. The learned trial Court had right relied upon the decision of the Apex Court in Ravinder Kumar versus State of Punjab, 2001, 7 SCC 690 that the prosecution need not establish motive precisely. In our view, the motive has not been established that the appellant was in dire need of money and he could go to this extent that he would murder one of his colleagues from the same village just for a sum of Rs.1500/- since he needed some money. The evidence led can be said to be shaky and not reliable. The second circumstance relied upon by the learned trial Court was in regard to the last seen. The first witness in this regard is PW-3 Bhagwan Dass who has stated that one day prior to seeing the dead body, he was working near his house for raising retaining wall. One Pawan Kumar was also with him. The accused present in court and the deceased whose dead body was seen by him demanded drinking water from him. He told them to take water from the water tank. The time has been stated as 2.00 p.m. He stated that he had seen the deceased earlier also while working as labourer. He clearly stated that he was deposing for the first time in the court and his statement was not recorded anywhere in this regard. No specific questions were put up to him in case his statement was recorded by the police or not, but he clearly stated, in general, that he had not made any statement in this regard. The said Pawan Kumar, who had also seen both the accused and the deceased during afternoon, was given up by the prosecution as unnecessary, though his statement was relevant. Coming to the other evidence in this regard, PW-4 Kesri Devi has stated that she had seen the deceased and the accused going together alongwith axe and drat, who had left the place around 12.30 p.m. She stated that she had seen the accused and Bansu Ram going from bamboos cluster, but she could not say which one of them was holding axe or drat. The bamboo cluster was visible form her house as stated by her. She admitted that Bansu Ram was not known to her earlier and she had seen him for the first time on that very day. It is difficult to believe that though she had seen Bansu Ram for the first time on that day, she could state that he was the person who was going with the accused on the day of occurrence. The learned counsel for the appellant had relied upon the decision in Lakhanpal vs. The State of Madhya Pradesh, AIR 1979 Supreme Court 1620, in which it was held that the mere fact that the accused and the deceased, the real brother of the accused, were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased. The evidence in regard to the last seen has to be in close proximity as compared to the time of death of the deceased. According to these witnesses, they had seen the deceased and the accused together at 12.30/2.00 p.m. According to the opinion of the Medical Officer PW-16 Dr. H.K. Attri, who conducted the post mortem examination on 8.2.2004 at 11.15 a.m. and submitted his report Ext.PW-16/A, he gave the time in between death and post mortem as approximately 24-48 hours, meaning thereby that the death had taken place either on 7.2.2004 at 11.15 a.m. or on 6.2.2004 at 11.15 a.m. This time does not tally with the probable time of death of the deceased, which may have taken place in the evening of 6.2.2004 since the dead body was recovered on 7.2.2004 at about 8.00 a.m. and according to PW-8 Nita Bai, the appellant had already come to her house late in the evening and had told her about the murder having been committed by him. This clearly shows that the murder, according to this witness, was committed after about 7.00 p.m. and it shows that the deceased and the appellant had been seen together around 12.30 p.m. or 2.30 p.m. and murder had been committed after 7.00 p.m. i.e. after 5.30 hours or so. There is nothing as to where the appellant and the deceased went thereafter and they had not been seen together immediately prior to the time of death of the deceased, which may be in between 7.00 p.m. to 12.00 night. Therefore, this evidence cannot be said to be such which could be said to be sufficient to use it as a positive circumstance as against the appellant. We may also point out one other infirmity which would suggest that PW- 8 Nita Bai cannot be said to be fully truthful witness. In her statement, she is specific in cross examination that Bansu never took liquor, though the accused used to take liquor. It may be that Bansu never took liquor in her presence but since he was living in their quarter, she could be said to have specific knowledge if the deceased used to take liquor or not and she was emphatic to say that he never took liquor. However, she had volunteered to add that the accused used to take liquor who was not living in their quarter. But her statement stands contradicted by the report of the Forensic Science Laboratory Ext.PW-16/C and the post mortem report Ext.PW-16/B, which shows that the contents of alcohol were 383.3 mg of the blood, which clearly shows that at the time of death, the deceased had taken alcohol which is contrary to the deposition of PW-8 Nita Bai for which reason we are not inclined to hold her as a truthful witness. Coming to the third circumstance relied upon by the learned trial Court, the learned trial Court had relied upon the evidence in regard to the disclosure statement made by the appellant and recovery of currency notes and blood stained pants. PW-20 Gian Chand, SHO, has stated that he apprehended the accused on 7.2.2004 at about 7.00 p.m. and interrogated him on the next morning in presence of PW-7 Veena Devi and PW-15 Parma Nand. He stated that during interrogation, the accused told him that he had taken currency notes worth Rs.8,000/- from the back pocket of the pants of Bansu Lal and had concealed them under the heap of concrete kept in under construction house of Rakesh Kumar and the clothes were worn by him have been kept by him in the residential room of Sham Lal, who is the husband of PW-8 Nita Bai. This disclosure statement has been proved as Ext.PW-7/A and he also associated one Subhash Chand at the time of recovery and recovered a sum of Rs.8,000/- from the heap of concrete and the memo was attested by Parma Nand and Subhash Chand. Then the accused took them to the house of Sham Lal and got recovered his pants having stains of blood which was taken in possession vide recovery memo Ext.PW-15/B. The two witnesses to the disclosure statement Ext.PW-7/A were PW-7 Veena Devi and PW-15 Parma Nand. PW-7 Veena Devi has materially corroborated the statement of the investigating officer and has also stated about the contents of the disclosure statement Ext.PW-7/A. She is running a tea stall at a distance of 40 metres from the Police Station and has stated that she had gone to Police Station to deliver tea. She was not associated at the time of recovery in pursuance to this disclosure statement. However, efforts should have been made to associate any member of the Panchayat during interrogation of the accused, but a woman who was running a tea shop near the Police Station has been associated in the disclosure statement. The other witness, namely, Parma Nand has been examined as PW-15, who has materially corroborated the statement of the Investigating Officer and PW-7 Veena Devi. In pursuance to the above disclosure statement, the recoveries were effected vide recovery memos Ext.PW-15/A and Ext.PW-15/B. PW-15 Parma Nand is a witness to the disclosure statement and he has been associated at the time of preparation of both the recovery memos Ext.PW-15/A and Ext.PW-15/B. The other witness was Subhash Chand who was given up by the prosecution as unnecessary. A perusal of the disclosure statement Ext.PW-7/A shows that the accused had made a disclosure statement that he had kept the clothes in his quarter, but as per Ext.PW-15/B, the recovery of the pants was made from the house of one Karam Singh i.e. from the residential house of PW-8 Nita Bai. Thus, this infirmity cannot be ignored since the disclosure statement was made about the pants having been kept by the appellant in his own quarter, though it was recovered from the room of another person and there is nothing as to when the accused made a statement that the pants was lying in the house of Sham Lal or his wife. Apart from the above, it is also on record, as per the report of Forensic Science Laboratory, Ext.PW-17/A that the blood of Group AB was found on the axe and on the clothes of the deceased, but the blood found on the pants of the appellant, which was human blood, was found insufficient for further analysis. Once a report had come up about the fact that the blood of Group AB was found on the clothes of the deceased and the weapon, the sample of blood of the appellant should have been taken and grouping should have been got done which could have determined if the appellant was having blood of Group AB or not. The learned counsel for the appellant had relied upon the decision in Kansa Behera vs. State of Orissa, AIR 1987 Supreme Court 1507, wherein, in a murder case, the recovery of blood stained clothes was made from the accused. The report of the Serologist was that clothes were stained with human blood but blood group was not indicated. It was held that evidence of blood group is only conclusive to connect blood stains with the deceased. Therefore, no reliance could be placed on this circumstance. From the above discussion, it follows that the evidence had come up in regard to theft of Rs.1500/-, allegedly committed by the appellant belonging to the deceased for which a quarrel took place in between them and still the deceased went with the appellant which does not appeal. Moreover, the disclosure statement was made in regard to the pants lying at one place but the recovery of the same was effected from some other place. The next infirmity is that there is nothing on record to establish as to the blood group of the blood found on the pants of the appellant and no blood sample was taken of the appellant for grouping and the mere presence of some blood on the pants of the appellant is not sufficient to hold that it was a strong circumstance which could be taken against the appellant. The last circumstance relied upon by the learned trial Court was in regard to the alleged extra judicial confession made by the appellant before PW- 8 Nita Bai. The first question arises for consideration is as to whether PW-8 Nita Bai could be said to be such a person in whom the appellant will repose confidence and will make an extra judicial confession to her about the fact that he had murdered the deceased and that a quarrel had taken place in between him and the deceased earlier. The learned trial Court had observed that probably the appellant filled with remorse and feeling unsecured after committing murder, he had no courage to go to his room nearby and probably wanted the company of others to have confidence in his mind, body and soul. The learned trial Court also observed that the extra judicial confession was made by the accused to a person who was from his native place and well known to him. There is no dispute in this regard that both the deceased and the husband of Nita Bai, namely, Sham Lal were from the same village. However, no specific circumstances are coming on record to show as to why the deceased will not go to his quarter and make the extra judicial confession to the wife of his co-villager, who was aged about 15 years only at the time of her examination in court and little less at the time of occurrence. There is nothing in the statement of PW-8 Nita Bai that there relations with the appellant were very close and he used to visit them frequently, though she had admitted that the appellant used to visit their quarter. She stated that the deceased used to live in their quarter and when night fell and the deceased did not come back, the accused came to their quarter and told them that he will sleep in their quarter. She told him not to sleep as that was the place where Bansu sleeps. He then told her that Bansu would not come and that he would sleep there. She further stated that the reason for Bansu not coming given was that the accused told that he murdered him for money. She stated that after telling, he went to his room, again stated that he slept in their room and left at 12.00 in the night and went away. She stated about the quarrel having taken place in between Bansu and the accused and Bansu had told her that Rs.1500/- were missing and that amount was taken away by the appellant. In regard to her relationship with both the persons, she stated that in village relation, accused is brother of her husband and the deceased was her Jeth by village relation. This clearly shows that both the accused and the deceased were on equal footing to her and she had no special affinity or relationship with either of them, except that Bansu Lal had been sharing the same quarter. It is clear from a perusal of her statement that she stated that the accused told her that Bansu would not come because he had murdered him for money. She firstly stated that her husband was not in the room but in her cross examination, she had stated that prior to the coming of the accused, her husband had gone in the search of Bansu upto STD, but came back within 5 minutes. She further stated that during that period of 5 minutes, the accused had not come to her quarter and there is nothing to show that her husband again left in search of Bansu or for any other reason. This clearly suggests, though not conclusively, that her husband may be present at the time when the accused came and insisted upon staying in their quarter. It is difficult to hold that he would repose confidence in a young woman who was the wife of his co- villager with whom there was no specific affinity or relationship. Moreover, the statement of PW-8 Nita Bai further shows that she came up with the plea in cross examination that the accused had given statement to her about the quarrel with Bansu Lal, which was not stated by her in her examination-in-chief, though she stated that she learnt from Bansu about the quarrel. She firstly admitted in cross examination that the accused never disclosed anything to her, self stated that the police threatened her and got such statement recorded at her instance. She further stated that police had also threatened her to be beaten if she refused to append signatures but no quarrel took place in her presence in between the accused and Bansu Lal deceased. She stated that her statement was not earlier recorded anywhere which suggests that her police statement was not recorded. She further admitted the suggestion as correct that the accused never told her about the killing of Bansu Lal. Apart from the above, it is surprising that there is nothing in her statement in regard to the presence of her husband at the time the said confession was made by the accused and as to when her husband came and as to whether she told her husband also about the confession made by the accused or whether her husband was present at the relevant time or not. Therefore, the statement of her husband was very material which could have thrown light and could have supported the statement made by his wife if it was correct or not. But the prosecution did not examine her husband Sham Lal and gave him up as having been won over by the accused. It cannot be said that this statement made by the learned Prosecutor should be accepted as correct and the best course would have been to examine the witness