HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 227 of 1994 Reserved on: 25.9.2008 Decided on: 26.9.2008 State of Himachal Pradesh ………Appellant Versus Brij Lal alias Trihru and another ………Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondents: Mr. Ashwani K. Sharma, Advocate. Per V.K. Ahuja, J: This is an appeal filed by the State of H.P. against the judgment of the court of learned Additional Sessions Judge, Mandi, dated 4.12.1993, vide which the respondents were acquitted of the charge framed against them under Section 302/201 of the Indian Penal Code. Briefly stated the facts of the case are that on 14.3.1992, at 8.30 a.m., a report was lodged with the police by PW-7 Nidhu Ram that his sister Achhri Devi was married to Brij Lal respondent for the last about 26 years. He further informed the police that one Netar Singh had come to his house at about 6.30 a.m. and had informed him that Achhri Devi had been killed by her husband Brij Lal and the body is lying in the nearby field of wheat. The complainant alongwith his mother went to the village and found the dead body of Achhri Devi in the field covered by a quilt. 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. 2 The complainant also alleged that earlier also, respondent Brij Lal had been maltreating his sister. On this report, a case was registered and after investigation, the challan was filed as against the respondent No.1 Brij Lal and respondent No.2 Guria for having committed the murder of Smt. Achhri Devi and had tried to screen the evidence. The case was committed to the court of the learned Sessions Judge and the respondents were tried by the learned trial Court leading to their acquittal, as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. On a perusal of the evidence, it is clear that there is no direct evidence in regard to the occurrence as against the respondents. The prosecution evidence mainly rests upon circumstantial evidence and it has to be considered as to whether the chain of circumstantial evidence led by the prosecution proves the guilt of the respondents beyond any reasonable doubt or not. We will first take up the evidence as against respondent No.2 Guria. According to the prosecution evidence, this Guria had come to the house of PW-8 Gopal Singh to make some purchases. The prosecution version was that the said Gopal Singh gave food to Guria, but did not allow him to sleep in his house since he was from different caste and he sent Guria to the house of respondent Brij Lal, where he slept on that night. To prove the fact that respondent No.2 had come to the house of Gopal Singh and was sent by Gopal Singh to the house of respondent No.1 Brij Lal, the prosecution examined the said Gopal Singh as PW-8. In his statement as PW-8, the said Gopal Singh has, however, 3 stated that on 13.3.1992, a stranger came to his house and asked him if there is a harijan house. He told him that there are many and he served him food, who left towards the house of respondent No.1 Brij Lal. He did not identify if the accused was the same person who had come to his house and had left for the house of respondent Brij Lal after taking meals. He has stated that the meals were served by his daughter-in-law and the stranger was sent away. The said daughter-in-law was not examined to prove the fact that respondent Guria had come on that evening to their house. The prosecution had also examined PW-11 Rattan Chand to prove the fact that respondent Guria visited their Village on that night but he stated that he never saw the accused in their Village. The learned trial Court had concluded, on the basis of the evidence, that the presence of the accused Guria in the house of co-accused Brij Lal was not established by the prosecution. The next circumstance, which was considered as against the prosecution by the learned trial Court, was that according to the prosecution story, respondent Brij Lal had seen the said Guria with his wife in the same bed, which infuriated respondent Brij Lal, who gave a blow on the person of his wife with a Karachhi and thereafter she was assaulted with a wooden stick by respondent Guria. The learned trial Court had rightly concluded that it is not understandable as to why the respondent Guria would assault the deceased since there was no occasion for him to assault her. In the natural course, if he had been apprehended with the wife of Brij Lal, either he would have run away from the place or would have tried to save the deceased from her husband, but there was no occasion for him to also cause injuries on the person of the deceased. 4 The next circumstance which was not proved was in regard to the semen found on the underwear of the accused as per the report of the expert. The learned trial Court had rightly come to the conclusion that the respondent was a grown up person and presence of semen on his underwear is a natural circumstance. It is not the case of the prosecution that he was having intercourse with the deceased when he was seen by the respondent Brij Lal or that he had accomplished the same. In regard to the blood stains on the underwear and shirt, his shirt was taken in possession on 18.3.1992, while the underwear was taken in possession on 16.3.1992. He was not available to the police till 15.3.1992. In case he had committed the murder, he had every opportunity to destroy the clothes if they were having some blood stains. No grouping of the blood could be done by the F.S.L. The learned trial Court had rightly concluded that the presence of the blood on the clothes does not link the accused with the commission of the offence in question. The next circumstance which also goes against the prosecution is that on comparison of the hairs found in the hands of the deceased with those of the accused, it was reported that both these do not tally with one and another and, therefore, this circumstance also goes against the prosecution. The Medical Officer had found number of injuries on the person of the deceased which were sixteen in number and according to the opinion of the Medical Officer who had conducted the post mortem, incised injuries on the person of the deceased were not possible with sharpedged weapon, therefore, no reliance can be placed upon the case of the prosecution that these were caused with the wooden 5 stick recovered at the instance of this accused or Karachhi recovered at the instance of other accused Brij Lal. The learned trial Court had also observed that there are some houses near the place of occurrence but there is nothing to show that any person came there on hearing the cries. The prosecution has proved Ext. PG site plan prepared by the J.E. as well as two site plans prepared by the Investigating Officer, namely Ext. PW12/A and Ext. PW12/C, in which some houses are shown at some distance. But these houses cannot be said to be very near to the place of occurrence. The mere fact that none came from those houses also does not support the prosecution story and is a circumstance in favour of the accused that no person had heard the cries of the deceased at that time. The two other circumstances were also referred to by the learned trial Court that the deceased and accused Brij Lal have four children. There is a mention of only two children who had gone to sleep in their uncle’s house, but there is nothing about the remaining two children or their age or they were present in the house of the deceased or accused Brij Lal at that time and in case, the children were of the age about 12 years or so, their statements could have been relevant to substantiate the prosecution story. The alleged disclosure statement made by accused Guria cannot be relied upon since it had not led to the recovery of any article and was only in regard to the pin pointing of the place of the murder, which evidence cannot be legally looked into under Section 27 of the Evidence Act. There was no other circumstance as against the present respondent Guria. Coming to the prosecution case as against accused Brij Lal and husband of the deceased, the prosecution had proceeded on the 6 assumption that the deceased was a woman of easy virtue. But the brother of the deceased, namely, PW-7 Nidhu Ram and two witnesses, namely, PW-8 Gopal Singh and PW-11 Rattan Chand have not stated anything in this regard. They have stated that the deceased and Brij Lal were having a happy married life and the witnesses have not stated that the deceased was suspected to be a woman of a loose character. The prosecution had tried to build up the case that accused Brij Lal killed his wife since he found her sharing the bed with Guria accused. But there is nothing in this regard nor the prosecution has established that the deceased was a woman of easy virtue. No presumption can be raised in the absence of any evidence. The prosecution case had proceeded on the report made by PW-7 Nidhu Ram that he was informed by one Netar Singh in the morning that his sister had been killed by the accused and her body had been thrown in the field. However, said Netar Singh was not examined by the prosecution, but was examined by the accused in his defence as DW-1 and he stated that he never informed PW-7 Nidhu Ram in this regard. There is also evidence to this effect that PW-11 Rattan Chand had seen Achhri Devi going to the house of her sister in the evening on 13.3.1992, which suggests that the deceased was not present in the house on that night. DW-1 Netar Singh being a nephew of the deceased has also stated similarly. The learned trial Court had rightly observed that in case the deceased had gone to her sister on that occasion and there is no evidence to show that she returned nor her sister was examined to prove that the deceased had visited her or not, it cannot be presumed that the deceased was present in her house on the day of the occurrence. The report of the sample of hairs collected 7 from the head of the accused do not tally with the hairs found in the hands of the deceased. Therefore, this circumstance also goes against the prosecution. We have already held above that there is no explanation in regard to the two children or the deceased or their presence either in the house or at some other place. In regard to the presence of the blood on the clothes of the deceased and his legs, the learned trial Court had rightly referred to the testimony of PW-7 Nidhu Ram himself in his cross-examination that Brij Lal accused when he went to see the dead body of the wife, had lifted the dead body and, therefore, his clothes and legs were stained with blood. Therefore, the mere presence of the blood on the clothes and legs does not prove that he committed murder of Achhri Devi. The opinion of the Medical Officer does not corroborate the prosecution story that some injuries were inflicted by this accused Brij Lal with Karachhi Ext. P-50. According to the brother of the deceased, namely, PW-7 Nidhu Ram, dead body was lying in the open field and the prosecution case is that the murder was committed in the kitchen. But there is nothing on record to show that there was any blood found in the kitchen of the house of the deceased. Thus, there is no circumstance proved as against the accused Brij Lal which could connect him with the commission of the crime of murder. There is no evidence to show that the accused persons tried to remove the evidence to screen themselves from being charged with the offence of murder and, therefore, the guilt of the respondents was also not established under Section 201 I.P.C. In view of the above discussion, we accordingly hold that the findings recorded by the learned trial Court holding that the prosecution has failed to prove the guilt of the respondents cannot be 8 said to be perverse calling for an interference by this Court. The appeal filed by the State of H.P. is dismissed. The bail bonds furnished by the respondents shall stand discharged. ( Deepak Gupta ), Judge ( V.K. Ahuja ), September 26, 2008 Judge (BSS/TRS) 9