1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 363 of 1993. Date of decision: 7.3.2008. ____________________________________________________________ State of Himachal Pradesh. Appellant. Versus Raghubir Chand and others. Respondents. ___________________________________________________________________ Coram Hon’ble Mr. Justice V.K. Ahuja, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J.S. Guleria, Law Officer. For the respondent: : Mr. K.D. Sood & Mr. Sanjeev Sood, Advocates for respondents No.1 to 3. For respondent No.4 : Mr. Ramakant Sharma, Advocate. _________________________________________________________ Per Surinder Singh, J. The respondents have been tried and acquitted for the offences charged under Section 302 read with Section 109 of the Indian Penal Code and also under Section 120-B of the Indian Penal Code for allegedly committing the murder of Raghubir alias Bhutto after hatching the conspiracy. The State felt aggrieved and dis-satisfied by the impugned judgment and has assailed in appeal on law and facts. We have heard the learned counsel for the parties and have reappraised the evidence on record. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 In brief, the prosecution case has been that Budh Ram was married to the sister of Raghunbir alias Bhutto (deceased) for whose murder, the accused respondents were charge sheeted. It is alleged that on 1.6.1991, Budh Ram aforesaid accompanied by the respondents Prem Chand, Inder Ram and Raghubir Chand went to village Lodhi Majra where Raghubir Singh alias Bhutto and his brother Kishan Chand used to live. They had gone there in truck No. HR 03- 0237. Raghubir alias Bhutto hereinafter to be referred as “deceased” and his brother Kishan Chand had a widowed sister named Satya. The above named four persons had gone to the house of the deceased to village Lodhi Majra with a proposal for the marriage of accused respondent Raghubir Chand. Kishan Chand and the deceased were the real brothers residing together in village Lodhi Majra. It is alleged that when the proposal was made to Kishan Chand and his wife Ram Piari respondent, they readily accepted it., but the deceased was opposed to it. Thereafter, deceased - accused Budh Ram, Prem Chand, Inder Ram and Raghubir Chand and Ram Piari wife of Kishan Chand, the brother of the deceased, respondents alleged to have hatched the conspiracy and liquidate Raghubir Singh alias Bhutto (deceased) so that there was no opposition to the marriage of Raghubir Chand accused with Satyal widowed sister of the deceased. Lachhmi (PW4) sister of the deceased who was the wife of Budh Ram deceased-accused, heard the respondents while hatching the conspiracy of murder of the deceased. Thereafter, deceased-accused Budh Ram and the respondents Raghubir Chand, Prem Chand, Inder Ram and Kishan Chand husband of respondent Ram Piari took liquor together in the 3 house. Kishan Chand was the elder brother of Satya. Deceased- accused Budh Ram and the respondents Raghubir Chand, Inder Ram and Prem Chand thereafter left for the house of one Shiv Ram to spend the night there while deceased-accused Budh Ram stayed in the house of Kishan Chand. It was further alleged that Kishan Chand, Ram Piari, Budh Ram, Lachhmi (PW4) and Satya went to their bed on the roof top while deceased slept in the verandah of the house down stairs. During the night, Lachhmi, aforesaid, noticed the deceased-accused Budh Ram waking up respondent Piari and then both of them went down stairs. She noticed that respondent Raghubir Chand was already waiting for them in their court yard armed with two axes. She had also seen Budh Ram deceased accused and Raghubir Chand respondent hacking deceased to death by giving the blows of the axes. Next morning respondent Piari and Satya were weeping and wailing near the dead body which was lying on the cot. By their cries, Prem Chand (PW1) who was near his cattle shed got attracted. He visited the spot and asked them as to what had happened. It was then respondent Piari disclosed him that respondent Raghubir Chand and deceased accused Budh Ram had hacked the deceased to death by giving the axe blows as the deceased was opposed to the proposal regarding the marriage of Satya with respondent Raghubir Chand. Thereafter, Prem Chand (PW1) went to Pradhan Gram Panchayat Khushi Ram, (PW2) and informed him what- ever he had heard from respondent Piari. Thereafter said Khushi Ram informed the Police telephonically and accompanied PW Prem Chand to the house of the deceased. PW2 also enquired from respondent Piari as to how 4 the deceased met his end. Then she informed that she had caught the deceased red handed while stealing her ornaments, therefore, she had hacked him to death by means of an axe. The Pradhan aforesaid, had noticed that the dead body of the deceased was already removed from the cot and was placed on the floor of the verandah and the blood was splattered on the floor washed with water. Little later, the Police arrived there and PW1 Prem Chand lodged the report by making his statement under Section 154 of the Code of Criminal Procedure on the basis of which the FIR was lodged in Police Station, Barotiwala against the respondents and also Budh Ram. The police prepared the inquest report Exhibit-PF and got the autopsy of the dead body done on 2.6.1991 in Rural Hospital Nalagarh. The report is Exhibit PW12/A. In the opinion of the Doctor, the death had occurred due to the cardio respiratory failure on account of massive hemorrhage from large vessel of neck The Police took into possession the blood stained “darri’ and ‘cot’ into possession vide memo Exhibit-PG. The controlled sample of earth was taken into possession vide memo Exhibit PJ and vide memo Exhibit-PH the blood stained earth was also taken into possession on the same day. The site plan Exhibit-PM and the photographs of the dead body were also taken on 2.6.1991. The respondents and Budh Ram were arrested on 2-6-1991. Budh Ram expired during the police custody. The respondents and the relations of Budh Ram alleged the death of Budh Ram on account of police excesses. However, on 4-6-1991, Raghubir Chand and Piari respondents are alleged to have made their disclosure statements regarding the axes vide Exhibit-PB and PC respectively, pursuant to which the recovery 5 of the axes was made vide memo Exhibit PD & -PE respectively. The sketch map of the axes Ext. P5 and P6 were also prepared. Both the axes, ‘dari’ and blood stained earth were sent for the Chemical analysis and these were alleged to have contained the human blood vide the report of the Forensic Science Laboratory Exhibit-PU. Budh Ram aforesaid was also arrested by the Police. The police recorded the statements of the witnesses under Section 161 of the Cr.P.C and after completing the investigation presented the challan against the respondents in the Court. Finding a prima facie case against the respondents, they were charge-sheeted. The respondents pleaded not guilty and claimed trial. To prove their case, the prosecution examined its witnesses. The respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances put to each of them and alleged their false implication. Further according to them, Pradhan Khushi Ram nourished the enmity on account of the Panchayat elections and he was the kingpin in implicating them for the charge of murder. The respondents were called upon to enter upon their defense but they did not lead any evidence. After appreciating the evidence on record and upon hearing the learned counsel for the parties, the learned trial Court, at the end of trial, acquitted the respondents for the charges framed against them on the grounds that the motive which was alleged against the respondents was very weak and not even proved. The statements of the prosecution witnesses were full of contradictions. The circumstantial evidence led by the prosecution to connect the 6 respondents with the commission of crime was proved to be false and cooked up. At the very outset, it is pertinent to note that there is no direct evidence involving the respondents with the alleged offence. The prosecution seeks to prove the case by leading the circumstantial evidence i.e. the alleged oral statement made by respondent Piari to Prem Chamd (PW1), Lachhmi Devi (PW4) involving Budh Ram deceased –accused, respondent Raghuvir Chand followed by the alleged recoveries of weapons of offence by Raghuvir Singh and Piari respondents. It is alleged that Kishan Chand and his wife Piari respondent agreed for the said proposal but the deceased was opposed to it and this was the motive to hatch the conspiracy to kill him. To prove conspiracy the prosecution has only examined Lachhmi Devi (PW4). She is the brother of the deceased and wife of Budh Ram deceased-accused , who was arrested in this case and died in the police custody. According to her after taking the meals in their house by the aforesaid persons they went to sleep but during the night, she is alleged to have heard them talking that if deceased did not agree for the marriage of Satya with Raghuvir Chand respondent, they would kill him. Further, according to her, in the morning the respondent Piari is alleged to have stated to her that deceased-accused Budh Ram and Raghubir Chand had killed the deceased and the dead body was removed by them with the help of Piari respondent from the cot and was placed on the ground and they did not do anything else. She was declared hostile and cross- examined by the learned Prosecutor as she was alleged to have 7 resiled from her earlier statement recorded under Section 161 Cr. P. C. wherein she is alleged to have stated that the respondent had washed the blood stained from the floor. It is pertinent to note that in her cross-examination by the accused, she had stated that her statement was not recorded by the Police nor she had made the statement that Piari respondent had told her that deceased was killed by her brother. Further she has admitted that she was told by the Head constable as to what statement she was to make by reading out some paper. She further admitted that her husband Budh Ram was taken away by the Police and he was killed in custody and she was afraid of the Police that they may not meet out the same treatment to her. Except PW Lachhmi Devi, there is no other witness of the alleged conspiracy. The deceased was admittedly her brother and her husband Budh Ram was also an accused for the alleged offence. As already stated above, he had died during his custody in the police and further she had made the statement read out to her by the police head constable. She was also afraid of that she may not be treated like her husband by the Police. This all goes to show that some fear was lurking in her mind and she did not come out with a true story. There is no other evidence to corroborate her, thus her statement cannot be taken to be a gospel truth. Further, PW5 Kishan Chand, the brother of the deceased. According to him, Inder, Prem Chand and Raghubir respondents had gone to the house of Shiv Ram to sleep there and in the morning when he woke up, he saw the deceased dead with a cut injury on his neck. Except this, he did not knew anything. Then he was 8 declared hostile and stated that Lachhmi Devi (PW) and Piari respondent had told that the deceased was hacked to death by Raghubir and Budh Ram. On this statement or allegation, it is not understood as to how Piari was made an accused for the murder of the deceased. At the best she could have been the prosecution witness. In the cross-examination, he has stated that there is a custom in their village that when a person dies, his dead body was removed from the cot and placed on the ground after washing the place with water. He further admitted that Budh Ram had died while in police custody and he was afraid of the Police that he may not be given the same treatment. Thus the statement of PW Kishan Chand and Lachhmi Devi, the sister of the deceased, only proves a fact that the respondents Raghubir, Prem Chand, Inder Ram and deceased Budh Ram had visited them with a proposal to marry Satya with Raghubir Chand and next morning, he was found murdered. The removal of the dead body from the cot to the ground by washing the floor with water is no circumstance which can be weighed against the respondents. Further the statement of PW1 Prem Chand and Pw2 Khushi Ram Pradhan about making the statement by Piary about the murder of the deceased is sharply contradicting each other. Even Khushi Ram Pradhan (PW2) was declared hostile by the prosecution. The alleged statement Piari is not proved nor is admissible in evidence. The circumstance which has also been put forth by the prosecution is the recovery of the axes on 4-6-1991 pursuant to the disclosure statement made by Raghubir Chand and Piari respondent. 9 It is pertinent to note that the respondents were arrested on 2- 6-1991 and both of them were alleged to have made the disclosure statements Exhibits PB and PC on 4-6-1991 in the presence of Prem Chand (PW1) and Nasib Chand (PW3). Further according to the case of the prosecution, Raghubir Chand got recovered the axe from the room of his house which was alleged to have been kept under “Bhussa” (wheat-husk) and Piari got recovered the axe from the room of her house. But according to PW2 Khushi Ram Pradhan, Police had arrived in his presence in the house of the deceased within twenty minutes of his arrival and then the police made enquiry from Piari respondent and asked her to produce the axe. She had gone inside and brought an axe and it was thereafter the Police entered the house and searched it and recovered another axe from inside. Whereas, PW1 Prem Chand has stated that on the same day after his statement Exhibit PA, Raghubir, Budh Ram and Piari respondents were arrested by the Police and nothing else was taken into possession from the spot. Whereas PW3 Nasib Chand, the another witness to the recovery has stated when the police reached the spot, Raghubir Chand had produced the axe from underneath the wheat chaff which was lying inside that house and nothing else was stated by the said accused before its production and the axe was put into the parcel and sealed and the police had prepared the Memo Exhibit PD which was attested by him and Prem Chand. He gave the contradictory statements about the date of recovery thus he was required to explain by the Court these contradictions. He had stated that the statements and the recovery both were recorded and effected on 2-6-1991 then again gave dilatory statement. In the 10 cross-examination by the accused, he again admitted that the recovery of the alleged weapons of offence was affected by the Police on 2-6-1991 while making the search of the house of the deceased. Thus these statements with respect to the recovery are absolutely contradictory, self destroying and also against the statement of the Investigating Officer (PW11) Basher Singh who has stated that respondent Raghubir Chand made the disclosure statement of police station Barotiwala and respondent Piari in the Hospital. Whereas Nasib Chand has also stated that the disclosure statements were made in Police Station and on the top of it is stated by him that the axe P1 and P2 were recovered on the search of the house of the deceased on 2-6-1991. Further, on the examination of the site plan Ext. PM prepared on 2-6-1991 and the site plan of the alleged recovery Exhibit PN prepared on 4-6-1991 we have found that the place of the alleged recovery shown in Exhibit PN at point ‘B’ is a room under the occupation of Kishan Chand (PW)husband of respondent Piari from where one axe was recovered, it was having wheat- chaff (Bhusa) on 4-6-1991 whereas, on 2-6-1991 i.e. two days prior to the alleged recovery, it has been shown to be vacant at point ‘E’ in the site plan Exhibit PM. In other words, it was not having the wheat-chaff in that room. Further, in Exhibit PN, the axe is alleged to have been recovered at the instance of Piari respondent from beneath a trunk which was also shown vacant in the site plan Exhibit PM prepared on 2.6.1991. The investigating Officer(PW11) had arrested five accused persons on 2-6-1991 including Budh Ram. Budh Ram had died during the intervening night of 2/3-6-1991 in police custody. During his 11 cremation, the respondents remained in police custody. He also admitted that inquiry is pending against him about the death of Budh Ram in custody. All these facts mentioned above raises a doubt on the complicity of the respondents with the alleged offence. The alleged recovery of weapons gives an impression of its padding. On the critical examination of the aforesaid evidence, we find that the prosecution case lacks probity. The circumstances mentioned above do not implicate any of the respondents with the offences charged. The learned trial Court has rightly appreciated the evidence on record and the findings arrived at are based on the evidence on record. Therefore, it calls for no interference. Accordingly, the appeal is dismissed. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. The matter is accordingly disposed of. Send down the records of the trial Court. (V.K. Ahuja), Judge. (Surinder Singh). Judge. March 7, 2008. (bm)