IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 270 of 2002 Date of Decision 16th September, 2011 ________________________________________________________ State of Himachal Pradesh. ….Appellant Versus 1. Shiv Kumar, son of Sh. Baldhar Singh, Caste Balmiki. 2. Varinder Singh, alias Pappu son of Baldhar Singh, Caste Balmiki. Both resident of House No. 43, Railway Station Nagrota Bagwan, Tehsil and District Kangra (HP) …..Respondents Criminal Appeal under Section 378(3) of the Code of Criminal Procedure. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General For the Respondents: Mr. V.S. Rathore, Advocate. __________________________________________________________________ Dev Darshan Sud, J.(oral) This appeal has been preferred by the State against the judgment of the learned Additional Sessions Judge (1), 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 Kangra at Dharamshala acquitting the respondents of offences under Section 302 read with Section 34 IPC. They had been charged for committing the murder of Mahinder Kaur and her son Harjinder Singh between 9th and 10th August, 2000. The deceased were managing/running a tea stall at Nagrota Bagwan Railway Station. 2. The prosecution case, in brief, is that the deceased mother and son were carrying on business of running a tea stall in Nagrota Bagwan Railway Station. Shri K.R. Arya was the Station Master. On 11.8.200 he informed the police that both the deceased had not been seen at the Railway Station for the last two days. Their residential quarter was found locked and foul smell was emanating therefrom. This information was recorded in the daily dairy by the police. His statement has been reproduced verbatim in the judgment. We note the other facts which have been stated before the police and they were that the daughter-in-law of the deceased Mahinder Kaur had gone to visit her parents in Amritsar. On 10.8.2000 at around 8 AM Ajay Kumar, who was working as a Salesman in the tea stall, informed the complainant that Mahinder Kaur and her son were not in their residential quarter since 9.8.2000 and it was locked. Ajay Kumar was asked to work in the tea stall, but he told the complainant K.R. Arya that he had not been instructed to perform any job/duty. On 11.8.2000 he was informed by Kuldeep Kumar, Station Master, that some foul smell was emanating from the residential quarter of the deceased, whereupon he informed the police. 3 3. Case under Sections 302, 452 and 34 IPC was registered against some unknown persons and investigation commenced by the police. The cause of death of both Mahinder Kaur and her son Hajinder was stated to be neurogenic shock caused by ante-mortem injury by a sharp edged weapon. 4. On 28.8.2000 house of Varinder Singh was searched and he was arrested on suspicion. One white shirt with blood stains was recovered and taken into possession. Shiv Kumar accused was also arrested on 3.9.2000 and while he was in police custody he is alleged to have made a disclosure statement that he had hidden a plastic bag in the bushes near the railway station. He led the police to the spot, the bag was recovered which contained a Toka (sharp edged instrument used for cutting) and Khukhari. He also disclosed that a key has been hidden by him in the children park, which was also recovered. The report of the Chemical Examiner is Ext.PW18/H, in which it was stated that human blood of ‘O’ group was found on the salwar, brazier of deceased Mahinder Kaur; human blood of Group ‘B’ on the underwear of Harjinder Singh and on the Khukhari. On the pajama and shirt of Harjinder Singh human blood was found but the group was unknown. There were blood stains on the gunny bag but no blood stains were found on the Toka, shirt and pant of Shiv Kumar. 5. This is a case of circumstantial evidence. The law on the point is well settled. The fundamental law on the point has been enunciated by the Supreme Court in Sharad Birdhichand Sharda vs. State of Maharashtra, AIR 1984 1622 holding: “152. ……………………………………….. 4 (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: “certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” 2. The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3. The circumstances should be of a conclusive nature and tendency. 4. They should exclude every possible hypothesis except the one to be proved and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (at p. 1656) 6. The Supreme Court reiterates that in order to sustain conviction the chain of incriminating circumstances must be so complete as to point to unerringly the guilt of the accused. The evidence should not only be consistent with the guilt of the accused but also should be inconsistent with his innocence. (See: 5 K.V. Chacko vs. State of Kerala, (2001)9 SCC 277, Nisar Ahmed vs. State of Bihar, (2001)9 SCC 736, Reddy Sampat Kumar vs. State of Andhra Pradesh, AIR 2005 SC 3478). Circumstances though creating a suspicion, without conclusive evidence, would be insufficient for basing conviction of the accused or anyone of them. (See: Pawan Kumar vs. State of Haryana, (2001)3 SCC 628). 7. We only need to reiterate that in order to base conviction on circumstantial evidence each and every piece of incriminating circumstance must be clearly proved and established by reliable and cogent evidence to form a chain, so complete which leaves no other conclusion except that pointing to the guilt of the accused. (See: Anil Kumar Singh vs. State of Bihar (2003)9 SCC 67, State of Rajasthan vs. Raja Ram (2003)8 SCC 180, State of Haryana vs. Jagbir Singh, (2003)11 SCC 261, Usman Mian vs. State of Bihar (2004)10 SCC 786). We need not multiply precedent any further. 8. What is to be established by the prosecution is the unerring finger of guilt pointing to the accused and admitting of no other explanation save and except that they are the participants in the crime and have committed the murder. In the light of these principles we now advert to the evidence on record. 9. The evidence against Varinder Singh is the recovery of shirt having blood stains. This shirt was recovered in the presence of witnesses namely PW3 Chunni Lal and PW4 Hari Krishan. PW3 Chunni Lal states that shirt Ext.P4 was recovered on 28.8.2000 when SHO, P.S. Kangra called him to the house of 6 accused Pappu. At that time, the accused was in police custody. During the search, he remained outside and one shirt was taken out of the house of accused which was having some spots and was washed. He says that his house is at a distance of ½ K.m. from the house of the accused. He was called by the police constable and when he reached the spot, he saw the shirt in the hands of the SHO. Then SI Gian Chand brought the shirt back to his shop on the third day after 28th August, 2000 and his signatures were obtained on the seizure memo in his shop. He says that when the shirt was seized, he was not present and he signed the parcel on the third day after 28th August, 2000. He says that on 28.8.2000 the accused was in the custody of police and they visited his house. Seizure memo Ext.PW3/A was prepared and signed by PW3 Chunni Lal. Shirt Ext.P-4 was the same which was recovered by the police. He admits that the shirt was in the hands of SHO when he reached there and denies the other suggestions. He also admits that there was no burglary in the house of the deceased as the rupees in lakhs and jewellery was recovered from there and that there has been some dispute between Mahinder Kaur and Makhan Singh and Sindhi about the tea stall. The report of the Chemical Examiner Ext.PW18/H says that there were blood stains on the shirt of the deceased, but they could not be analysed. 10. On the question of recovery, we note that Ext.PW3/A states that the search of the house of accused Varinder Singh was carried out in the presence of PW3 Chunni Lal and PW4 Hari Krishan and that one shirt was recovered from there. The shirt had blood stains which had been washed. It does not say that the 7 shirt was produced by the accused. We find that the evidence of these recovery witnesses is contradictory and cannot be reconciled as PW3 Chunni Lal says that sealing etc. was not done in his presence and was conducted in his shop after a period of three days of the recovery and in this totality of the circumstance, what we find is that this circumstance urged against accused Varinder Singh cannot be used against him. 11. We now advert to the second evidence that is of Shiv Kumar. He is sought to be linked on the basis of the statement made by which a key and two weapons namely toka and khukhari were recovered. There were blood stains on the shirt and pant. The disclosure statement Ext.PW18/A has been recorded in the presence of Mahinder Raj and PW17 Abdul Bashir. Mahinder Raj was not produced in evidence on the ground that he had been won over by the accused. This witness (PW17) states that he was posted as a Station Master in Nagrota Bagwan and he was joined by the police in the investigation and that nobody was present when his statement was recorded and read over to him in the police station. He was declared hostile. In his extensive cross examination, he only admitted his signatures on his statement Mark X-17, but remained firm on the point that there was nobody else present when proceedings were conducted in his presence. He denied the suggestion that the accused had locked the room after commission of offence and thrown the key away, rather he replied in affirmative that Shiv Kumar was not present at the time when such recovery statement was recorded. He also denied the suggestion that the accused has stated that he had hidden the Khukhari and toka in 8 the bushes behind the godown but he can get them recovered. Shiv Kumar, accused was railway employee. The two memos of recovery Ext.PW4/A and Ext.PW5/A have been witnessed by Harish Kumar and Mahinder Raj, out of whom Harish Kumar was produced and examined as PW11. Ext.PW4/A details the recovery of toka and Khukhari, but the learned Court notices that though this witness supports such recovery, but he is a stock police witness. In State of Punjab vs. Harbans Singh and another, (2003)11 SCC 203 the Supreme Court holds: “8……….Though the High Court has found the fact that PWs 4 and 11 having been prosecution witnesses in many cases is a ground to reject their evidence, we do not think merely because some of the prosecution witnesses have appeared in a large number of cases earlier for the prosecution, ipso facto their evidence becomes liable to be rejected, but we think certainly such evidence will have to be considered with great caution……….” (at p.206) In Hira Lal vs. State of Haryana, AIR 1971 SC 356 the Supreme Court holds: “4……….The other two witnesses examined are Amir Singh and Ram Rang Amir Singh, on his own admission, has appeared as a prosecution witness four or five times in police cases pertaining to this police station. The evidence of such witness can hardly carry any value in Court……..” (at p.357) Be that as it may, the evidence of the stock police witness cannot be rejected outright, but we find that the appreciation of his evidence by the learned trial Court has not been merely on the basis of applying the principles of rejection outright. We find that the learned trial Court has subjected his evidence to the principle of careful scrutiny and this finds support/corroboration 9 from the other evidence on record as to why the evidence of this witness cannot be accepted. 12 Adverting to the recovery memo Ext.PW5/A pursuant to statement Ext.PW8/A, the Court notices that it related only to the fact that the key could be recovered but nothing was stated about the lock. Adverting to the three weapons of offence, the learned Court notices that three weapons have not been linked with the offence. The darat (sickle) Ext.P-3 which was recovered from the Chhajja (edge) of the room of the deceased, toka Ext.P- 6 and Khukhari Ext.P-5. The report of the Chemical Examiner says that darat Ext.P-3 and Khukhari Ext.P-5 contained the blood group ‘B’, but no blood was found on the toka Ext.P-6. Accused Shiv Kumar or Varinder Singh does not say anything about the recovery of the darat. The deceased are of two blood groups namely ‘B’ and ‘O’. ‘O’ blood group was not found on any of the weapons purportedly used in the offence. 13. We now advert to the motive. The deceased is stated to have been a witness in a theft case in 1999 in which accused Shiv Kumar was involved. The complainant in that case was PW17 Abdul Bashir. The motive urged was that the victim was sought to be eliminated because he had been cited as a witness in that case. We are bound by the principles for assessing the circumstantial evidence as laid down by the Supreme Court and as considered by us above. The chain is not complete but is incomplete. We find that there is no evidence that both the accused met to hatch any conspiracy to murder the deceased. There has been no theft rather the admitted case was that the cash and jewellery in lakhs was lying in the house and it is 10 nobody’s case that any article, cash or jewellery was stolen. In these circumstances, we find no evidence in the case. We are aware of the fact that even one circumstance can unerringly point to the guilt of the accused but we are unable to find anything in the evidence on record. We concur with the judgment of the learned Additional Sessions Judge. There is thus no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra), Judge (Dev Darshan Sud) September 16,2011 Judge (ms)