IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.427 of 2002. Date of Decision: 23.09.2011 State of H.P. …Appellant. Versus. Balbir Singh @ Bheera & others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the Respondents: Mr. Dhruv Shaunak, Advocate. Deepak Gupta, J. (Oral) 1. This appeal by the State is directed against the judgement dated 14.3.2002 delivered by the learned Sessions Judge, Kangra at Dharamshala in Sessions trial No. 12 of 2001 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 read with Section 34 IPC. 2. The prosecution story in brief is that Kewal Krishan (deceased) was working at Ashirwad Stone Crusher. The complainant Uttam Chand PW-1 is his nephew. He filed a complaint with the police on 26.9.1998 that his uncle Kewal Krishan had gone to work at Ashirwad Stone Crusher, Damtal on a scooter. He did not return for 4-5 2 days. Earlier also he used to stay at the crusher for 2-3 days in connection with his work. However, when he did not return, he alongwith Jamuna Devi (mother of Kewal Krishan) made a search for the deceased and went to the crusher. Two persons Subodh and Mithu met them there and informed them that on 20.9.1998 Kewal Krishan had gone to attend a marriage in the house of Bheera accused. Thereafter, these persons went to the house of Bheera accused and according to the complainant Bheera informed that Kewal Krishan had misbehaved with his wife after which all the three accused gave beatings to Kewal Krishan who thereafter left the house of Bheera. The deceased, however, left behind the scooter in the house of accused and according to the complainant on 25.9.1998 he saw the scooter in the house of Bheera. Thereafter, they searched for Kewal Krishan but he could not be found out and at about 7.00 p.m they came to know that one dead body was lying in village Mohtali. When they went to the well they saw a dead body which was of deceased Kewal Krishan. Report was lodged with the police and the dead body was taken out next day and sent for post mortem, which was conducted by PW-13. On the basis of this evidence and the investigation done later on, the accused were charged for having committed the offences aforesaid. They have been acquitted and hence the present appeal. 3 3. Admittedly, there is no eye witness to the murder and the case is based totally on the circumstantial evidence. The law with regard to the circumstantial evidence is well settled that it is the duty of the prosecution to link all the circumstances in such a fashion that they form one continuous chain which leads only to one irresistible conclusion i.e. guilt of the accused. If there is any possibility of any other person having committed the offence then the accused have to be given the benefit of doubt. 4. The main circumstance relied upon by the prosecution in the present case is that in the evening of 20th September, 1998 certain persons had seen the deceased quarrelling with Bheera in his house. To this effect is the statement of PW-3 Ramesh Kumar who states that the accused were drunk and were fighting with Kewal Krishan. This witness also states that on 23rd or 24th September, the mother of Kewal Krishan inquired from him about the whereabouts of Kewal Krishan and according to him he had told the mother that the accused was seen fighting with Kewal Krishan on the evening of 20.09.1998. If that had been true then why would the mother of Kewal Krishan wait for two more days to visit the house of the accused. 4 5. PW-4 Jagdev is the other person who is a witness to the quarrel between Kewal Krishan and Bheera. According to this witness Kewal Krishan first came to the house of the accused Bheera and parked his scooter in the courtyard of the accused. Thereafter, he went to the house of Jagdev and took his meals there. Then he again returned to the house of the accused after 5-10 minutes. PW-4 heard some noise coming from the house of the accused. He then went there. He found that the accused and Kewal Krishan were fighting with each other. He clearly states that there was no physical fight and only a verbal altercation was going on between the accused and the deceased. 6. PW-6 Jitender Sharma states that he is also a Munishi in another unit of Ashirwad Crusher. According to him on 22nd September, 1998 Bheera accused came to him and told him that the scooter of Kewal Krishan was lying in his house since 20th September, 1998. Thereafter, Jitender PW-6 went to get the scooter but the ladies of house refused to give him the scooter. Thereafter, Bheera accompanied Jitender Sharma went there and the scooter was handed over to him and he brought back the scooter to the Crusher. His version is that the scooter was not actually owned by Kewal Krishan but was owned by the owner of the Crusher who had given it to Kewal Krishan for 5 use. The statement of this witness totally demolishes the case of the prosecution. According to the complainant when he went to the house of accused on 25.09.1998 he saw the scooter in the courtyard of the house of the accused. On the other hand PW-6 Jitender Sharma has stated in no uncertain terms that he had brought back the scooter from the house of Bheera 22nd September, 2011. Furthermore, if Bheera was involved in killing the deceased why would he had gone to the house of Jitender Sharma and told him that the scooter was lying in the courtyard of the accused. 7. At best the only circumstance which is proved is that at about 9.00 p.m on 20th September, 2011 there was verbal altercation between accused and the deceased. The body of the deceased was discovered on 25th September, 1998 and subjected to post mortem on 26th September, 1998. Though in the examination in chief in Court the doctor has not stated this but even if we read the post mortem report the time which elapsed between death and post mortem was estimated between 3 days to 7 days. Therefore, deceased Kewal Krishan could have been killed in between 20th September to 27th September, 1998. There is no evidence as to when he left the house of the accused. There is also no evidence whether he left the house of the accused alone. Suspicion can never take 6 place of proof. In a criminal case, the prosecution is bound to prove its case beyond reasonable doubt and no person can be convicted only on the basis of suspicion. 8. Therefore, we are of the considered view that the learned trial Court was fully justified in acquitting the accused. We find no reason to interfere with the judgement of the learned trial Court. The appeal is, therefore, dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 23rd September, 2011. ( Sanjay Karol ) ™ Judge.