IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.137 of 2000 Decided on: 19.11.2010 State of H.P …..Appellant. VERSUS Subhash Chand …..Respondent. 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, Deputy Advocate General. For the Respondent: Shri Bheem Raj, Advocate vice Mr.Y.P.S.Dhaulta, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 22.12.1999 delivered by the Learned Sessions Judge, Una in Sessions Trial No.17 of 1999 whereby he acquitted the accused of having committed 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… offences punishable under Sections 302, 376 read with Section 34 of the Indian Penal Code. 2. The undisputed facts of the case are that the deceased Satya Devi was married to Onkar Singh, brother of the accused. Onkar Singh had died about six years prior to the occurrence. Thereafter, his widow, Satya Devi (deceased) who had six daughters was working as a helper in the Balwari. She also used to work as a domestic help in the houses of the villagers to earn her livelihood and to maintain her children. On 6.12.1998, Satya Devi went to the house of one Raghubir Singh to work in the marriage ceremony being conducted in his house. Unfortunately, she never returned home thereafter. 3. On 7.12.1998, PW/16, Poonam, daughter of the deceased found one container (Dolu) containing some vegetables and ‘Bhatooras’ in an envelope and one pair of ‘Chappal’ at some distance from her house. She immediately informed her uncle, Kartar Singh (PW/1) that her mother had not come back at night and thereafter, Kartar Singh searched for Satya Devi. He went to the houses of the Pradhan and other villagers. He also went to the house of Raghubir Singh who informed him …3… that Satya Devi had left his house at about 6.00 p.m. on 6.12.1998. Thereafter, they continued searching for Satya Devi and on 12.12.1998 when Kartar Singh alongwith other villagers was searching for her, they found the dead body of the deceased in the bushes near ‘Domuhi di Khuhi’. When the body of the deceased was found, it was naked below the waist and it was apparent that the deceased had been strangulated to death. Therefore, the police was informed and an FIR No.149/98, Ext.PQ was registered. 4. During the course of the investigation, the police found evidence to the effect that the accused who was the brother-in-law of Satya Devi, being the younger brother of Onkar Singh, deceased, suspected the deceased of being a lady of loose character and, therefore, raped and murdered her and thereafter, threw her dead body in the jungle. The police completed the investigation. On the basis of the evidence, challan was filed and the accused was charged with having committed the offences detailed here-in-above. The accused pleaded not guilty to the charges levelled against him and claimed trial. After trial, the accused was acquitted. Hence the present appeal by the State. …4… 5. Admittedly, this is a case of circumstantial evidence and nobody witnessed the incident. It is well 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. 6. To prove its case, the prosecution relied upon the following circumstances:- (a) Extra judicial confession of the accused; (b) Statement of the accused Ext.PD and demarcation of places of alleged commission of offences; (c) Last seen theory; and …5… (d) Enmity between the accused Subhash and the deceased Satya Devi. 7. To prove the first circumstance, the prosecution examined Kishan Rana, Pradhan of the Panchayat, PW/2 and Jagdish Ram, Up-Pradhan, PW/3 before whom, it was alleged that the accused made an extra judicial confession on the night of 12.12.1998. The prosecution also alleged that the accused made an extra judicial confession before another Jagdish Ram, son of Babu Ram, PW/4 on 13.12.1998. The case set up by the prosecution is that the accused on these occasions went to the houses of these persons. He was frightened and scared and told them that since his sister-in-law, Satya Devi was a woman of loose character, he had murdered her. These three witnesses have not supported the prosecution at all. They have been examined as PW/2, PW/3 and PW/4 respectively. In Court, these witnesses denied that the accused ever came to their house(s). They also denied that the accused ever made any extra judicial confession before them. As mentioned above, PW/2 is the Pradhan and PW/3 is the Up-Pradhan of the area. PW/4 is an ex-Lambardar of the village. These …6… witnesses were declared hostile at the request of learned Public Prosecutor. They were cross-examined by him but in cross-examination, they continued to assert that no extra judicial confession was made by the accused in their presence. There is no material to show that these witnesses had made a false statement in Court. Therefore, this circumstance does not stand proved. 8. The second circumstance relied upon by the prosecution is that the accused vide his statement, Ext.PD identified the place of the alleged commission of offence. To say the least, this evidence is no evidence in the eyes of law. Admittedly, the body of the deceased had already been recovered before the statement was made by the accused. A disclosure statement is admissible in evidence only when it leads to the disclosure of some fact which was not known to the police. When the fact was known to the police, the statement cannot be used against the accused. 9. As far as the third and the fourth circumstances are concerned, at the outset, it may be stated that Raghubir Singh, in whose house the deceased, Satya Devi was last seen working, was never examined in Court. The only person who has supported …7… the prosecution in this regard is Prem Singh, PW/5. According to him, Satya Devi, deceased was his God Sister and he used to help her financially. He further stated that on 6.12.1998 at about 4/5 p.m., Satya Devi, deceased left the house of Raghubir Singh alongwith some meals which were provided to her by Raghubir Singh. He also identified the container (Dolu), Ext.P/3 in which the deceased had taken the vegetables. According to this witness, Subhash, accused was also present near the house of Raghubir Singh and when Satya Devi left the house of Raghubir Singh, the accused also disappeared and he did not saw him thereafter. 10. This witness is also a witness to the fourth circumstance, since according to PW/5, the accused Subhash suspected that he (PW/5) had illicit relations with Satya Devi. The statement of this witness does not inspire confidence at all. If he had known that the accused was suspecting Satya Devi of having illicit relations with him and Satya Devi was missing after 6.12.1998, he would have informed the villagers or the police that he had last seen Satya Devi with the accused. In fact, his statement is not very clear and he only said that when Satya Devi, deceased left the house of Raghubir Singh, the accused …8… also disappeared and the accused was not seen thereafter. He does not say that he saw the accused following the deceased. In cross-examination, this witness stated that he had told the police that on 11.12.1998 Kartar Singh came to his house and told him that Satya Devi is missing from 6.12.1998. He was confronted with his statement recorded under Section 161, Cr.PC where this fact was not recorded. Therefore, both the circumstances, i.e., circumstance No.3 and 4 have not been proved. 11. In fact, Poonam, daughter of Satya Devi has not stated a word in this regard. It is her mother who was murdered and if she had suspected the accused of being behind the murder of her mother, she would not have hesitated to say this fact in Court or to the police. In fact, according to her, relations between her mother and the accused were very cordial and she had in fact, informed the accused and his wife, Meena Devi about the fact that her mother was missing on 7.12.1998. This shows that there was no enmity between the accused and the deceased. …9… 12. In view of the above discussion, the learned Trial Court was fully 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. November 19, 2010 (Sanjay Karol) (m) Judge