IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 359 of 1995 Reserved on : 22.2.2010 Date of Decision: 02.3.2010 State of Himachal Pradesh Appellant Versus Bhagat Ram Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.S.S.Mittal, Sr. Advocate, with Mr. Surinder P.Sharma, Advocate. Sanjay Karol, Judge. Present appeal filed under Section 378 of the Code of Criminal Procedure is directed against the judgment dated 28.6.1994 passed by the Additional Sessions Judge, Kullu, H.P., in Sessions Trial No. 22/93, titled as State vs. Bhagat Ram, whereby accused Bhagat Ram has been acquitted of the charge of having committed an offence under Section 302 of the Indian Penal Code, 1860. It is the case of the prosecution that Smt. Mangti (PW-2) had two sons, namely, Shri Sher Singh Whether the reporters of Local Papers are allowed to see the Judgment? 2 (deceased) and Shri Bhagat Ram (accused). On 31.10.1986 at about 9 p.m. Shri Sher Singh alongwith Shri Ram Kishan, Shri Budh Ram and Shri Bhagwan Singh visited the house of the accused. Smt. Lihtu wife of the accused was also present. In the meanwhile Bhagat Ram in a drunken condition came and objected to the presence of Shri Sher Singh in his house. Shri Bhagat Ram threw away the tape-recorder (Ext.P- 9) belonging to Shri Sher Singh. After taking out his single barrel muzzle loading gun, just when Shri Sher Singh tried to flee, Shri Bhagat Ram fired the gun. The gun shot was heard by Shri Tule Ram, Chowkidar (PW-7), who reached the spot and saw accused Sher Singh lying dead on the lap of Shri Bhagat Ram. At that time S/Shri Ram Kishan, Budh Ram, Bhagwan Singh and Smt. Lihtu were also present at the spot. The matter was reported to the police by Shri Tule Ram (PW-7) and the police machinery was put in motion. The gun (Ext.P-8) was recovered from the fields belonging to the accused in the presence of PW-7 and Shri Ram Kishan (PW-8) vide recovery memo Ext.PW-7/C. The clothes of the deceased (Ext.P-6 and Ext.P-7) were also recovered vide recovery memo Ext.PW-7/D. Blood stained wooden pieces and blood stained grass from the verandah of the house of the accused were recovered vide memo Ext.PW-7/E and after carrying out further search in and around the house 3 of the accused, percussion caps, gun powder and other material (Ext.P-11 to Ext.P-14) in a bag were recovered vide recovery memo Ext.PW-7/F. Tape- recorder (Ext.P-9) was recovered from the Verandah of the house of the accused vide memo Ext.PW-7/G. With the completion of the investigation, on 15.10.1992 the prosecution filed cancellation report before the concerned Court. The same was, however, not accepted by the Court and the challan was registered and the accused was put to trial. The accused was charged for an offence punishable under Section 302, IPC to which he did not plead guilty. In all the prosecution examined 12 witnesses. The statement of accused under Section 313, Cr.P.C. was also recorded in which the accused took a defence that Shri Tule Ram (PW-7) had lodged a false complaint against the accused due to animosity as there was a landed dispute with respect to the estate of his bua Smt. Shawni. The Court below found the prosecution not to have proven the case beyond reasonable shadow of doubt, as the circumstantial evidence could not conclusively lead to the only possible hypothesis of the guilt of the accused. There is no doubt that the deceased died as a result of the gun shot. The same stands proved by 4 Dr. Shri R.D.Chandel (PW-1). He has proved the relevant documentary evidence to the said effect. It is not the case of the prosecution that accused Bhagat Ram was the licence holder of the alleged weapon of offence i.e. gun (Ext.P-8). It is also not in dispute that Shri Sher Singh and Shri Bhagat Ram were living separately and as per the version of their mother Smt. Mangti (PW-2) they had distributed and partitioned the landed property about one year prior to the date of the alleged incident. It is also not the case of the prosecution that the two brothers were harbouring animosity against each other. It is also not the case of the prosecution that after the incident the accused had fled away from the spot. The presence of the accused, after the incident and till the time of the cremation of the deceased is not in dispute. Shri Ram Kishan (PW-8) and Shri Budh Ram (PW-9), who are alleged to have witnessed the occurrence of the alleged incident have not supported the case of the prosecution. According to the unrefuted version of Smt. Mangti (PW-2), Shri Sher Singh, who used to live with her was in the house and was found dead in his room. She has further deposed that the weapon of offence i.e. Gun (Ext.P-8) was owned by her husband, who is dead and in fact was possessed by deceased Shri Sher 5 Singh, whereas accused Bhagat Ram did not possess any gun. She could not state as to who had killed her son and clarified that there was no ill-will between the two brothers. This witness was, however, declared hostile. The material witnesses of the prosecution Smt. Mangti (PW-2), Shri Partap Singh (PW-3), Shri Rasham Ram (PW-4), Shri Ram Kishan (PW- 8) and Shri Budh Ram (PW-9) have not supported the case of the prosecution and having been declared hostile were cross-examined by the Public Prosecutor. There is nothing in their statement, which would render their version to be unreliable and unbelievable. Shri Tule Ram (PW-7) has partly resiled from his statement. There is nothing in the statement of Shri Partap Singh (PW-3) and Shri Rasham Ram (PW-4), which would in any manner support the prosecution case. Shri Ram Kishan (Pw-8), who is alleged to have witnessed the recovery of the articles and signed the recovery memos Ext.PW-7/C, Ext.PW-7/D, Ext. PW-7/F and Ext.PW-7/G has denied having witnessed the recovery of the articles. It is also the specific case of the prosecution, as put to the accused in the statement recorded under Section 313, Cr.P.C., that accused alongwith Shri Hari Singh and Shri Bhagwan Singh 6 removed the dead body of Shri Sher Singh from the house of the accused to the house of the deceased. Noticeably there is nothing on record to show that the matter was ever investigated against the said persons in connection with alleged offence committed by them. It is a serious reflection of the manner in which prosecution has carried out the investigation, further rendering the version of the prosecution to be doubtful. The prosecution has not led any evidence to prove that there was any dispute inter se between the two brothers which is alleged to have been motive behind the murder. Importantly there is no direct evidence to prove the fact that it was the accused who had fired the gun shot at his brother, which was the cause of his death. Even PW-7 does not state so. The prosecution case, therefore, primarily rests on circumstantial evidence. The law as to probative value of circumstantial evidence is well established and before a person can be held guilty on the basis of circumstantial evidence, it is required, 1) that the circumstantial evidence must be clearly established; 2) the circumstantial evidence must lead to only one and one hypothesis alone, pointing towards the guilt of the accused. 7 No doubt, Shri Tule Ram (PW-7) has deposed that gun (Ext.P-8) was recovered by the police from the fields of Bhagat Ram, which was at the back of his house and also other articles, namely, blood stained sample from the Veranda of the accused, clothes of the deceased, a container having 16 percussion caps, one small can of the gun powder, which was of red colour and another small bottle of plastic containing gun powder. The small bag having the pellets alongwith a small bottle containing powder were recovered by the police, but however, in cross-examination he has categorically deposed that all the documents of recovery/seizure memos were signed by him at the Police Station. In fact he has gone to the extent of deposing that even the articles were sealed in the Police Station. This renders the prosecution story to be further doubtful. Further, he has admitted that he and the accused are not on speaking terms. Importantly, in his cross- examination he has categorically admitted that he was not present at the site when the dead body of deceased Shri Sher Singh was removed from the house of Shri Bhagat Ram. His earlier version that he had seen the deceased in the lap of the accused with gun shot injuries does not appear to be true. According to him, there were other persons also present on the spot. He does not appear to be a truthful witness and 8 his testimony does not inspire confidence rendering the prosecution story to be doubtful. According to PW-2 the deceased was found dead in his room. It is the specific case of the prosecution that at the time of occurrence of the incident, Shri Budh Ram, Shri Bhagwan Singh, Shri Ram Kishan and Smt. Lihtu were present. Undisputedly except for Shri Budh Ram (PW- 9) and Shri Ram Kishan (PW-8), the other persons were not associated by the police during investigation nor examined in the Court. For all the aforesaid reasons, it cannot be said that the prosecution has been able to prove that the dead body of the deceased was lying in the lap of the accused or that the dead body was removed from the house of the accused at the instance of Smt. Mangti Devi to the house of deceased Shri Sher Singh. Even with regard to the recovery of the articles Ext.P-11 to Ext.P-14 the witnesses have contradicted themselves. According to PW-7 the same were taken into possession from the Veranda of the house of the accused whereas as per the version of Shri Amar Singh, Investigating Officer (PW-11), the same was taken into possession from the house of the accused, which was hidden in the corner of the wall. There is no cogent or credible evidence on record from which it could be conclusively held that it was only the accused and none else, who had fired 9 a gun shot at his brother Shri Sher Singh leaving him dead. A person cannot be held guilty on the basis of mere suspicion as the circumstances in totality are not of conclusive nature leading to the guilt of the accused alone. As has been noticed hereinabove, the weapon of offence i.e. gun did not belong to the accused. The mother of the deceased has categorically deposed that the said gun was actually in possession of deceased Shri Sher Singh. Her testimony, to this extent, goes unrefuted. There is no proven motive for the accused to have fired the gun shot at the deceased. Shri Tule Ram (PW-7) was not on speaking terms with the accused. Hence the defence taken by the accused that he has been falsely implicated by Shri Tule Ram appears to be plausible. Most importantly Smt. Mangati (PW-2) has categorically deposed that Bhagat Ram was in the house of Dine Ram and was doing some khana-pina, from where she had called him when Sher Singh had died. Hence presence of accused at the spot at the time of occurrence of the incident, cannot be presumed on the doubtful deposition of Shri Tule Ram (PW-7). The circumstances prove more towards the innocence of the accused rather that his guilt. It cannot be said that chain of evidence does not leave any reasonable ground for conclusion 10 consistent with the innocence of the accused or that in all human probability the act has been committed by the accused. The findings returned by the trial Court are borne out from the record after having correctly appreciated the entire material. The prosecution has failed to prove the case against the accused. There is no merit in the appeal. The appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. 2nd March, 2010 (Sanjay Karol) (C) Judge.