IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.:114/1998 Decided on: 18.3.2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Nachku Ram and others …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Vinay Thakur, Advocate. _____________________________________________________ Surjit Singh, J (oral). State is dissatisfied with the judgment dated 19.9.1997 of the learned Sessions Court whereby Nachku Ram, his son Ram Chhering (now dead), another son Ashok Kumar, wife Sempati, daughter Ram Devi and one Rupi Chand, all respondents herein, who were charged with and tried for offence under section 302 read with sections 34, 120-B and 201 of the Indian Penal Code, have been acquitted. Case of the prosecution may be stated thus. Deceased Prem Lal aged about 22 years was resident of village Telangi, Tehsil Kalpa, District Kinnaur. On 13.1.1994, he left his house 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 saying that he was going to the house of respondent Ram Chhering (now dead) as the latter had invited him for celebrating Lohari at his place. He did not return home that evening or even on the next following day. On 15.1.1994, Ram Lal (PW-16), a younger brother of Prem Lal, inquired from Sempati respondent, mother of Ram Cherring, about the deceased. She admitted that he had visited their house, but told that after consuming liquor at their place he had left for Nirmand in Kullu District, a girl from which place he wanted to marry. Family members of Prem Lal deceased believed what was disclosed by Sempati to PW-16 Ram Lal and made no further inquiries. On 16.3.1994, Gopal Bansal (PW-20), the brother of the girl whom the deceased wanted to marry, went to the house of deceased Prem Lal. PW-16 Ram Lal and his mother PW-1 Lajo inquired from Gopal Bansal about Prem Lal. He told that he had not visited their place. On 7.3.1994, respondent Rupi Chand was contacted by Ram Lal. He denied that he had any altercations with the deceased on Lohari day, as was earlier disclosed to Ram Lal by Sempati respondent. On 9.3.1994, a dead body was found lying near a temple in the village Kashmir. The dead body was identified to be of Prem Lal by Bhagmani, the sister of the deceased. It was taken to the hospital for postmortem. It was completely decomposed and mutilated. It could not be ascertained as to what would have been the cause of death. Dead body was sent to Forensic Expert, namely, Sh. P.K. Ghosh (PW-17), a Professor of I.G.M.C. The expert also could not give any definite opinion as to the cause of 3 death. On 11.3.1994, Ram Lal (PW-16) lodged FIR with the police. He narrated the aforesaid facts about the deceased having gone to the house of respondents on Lohari day and then his having inquired from respondent Sempati about his brother and the latter telling that the deceased and Rupi Chand happened to quarrel while drinking and thereafter the deceased leaving for Nirmand and Gopal Bansal (PW-20) coming to the area on 7.3.1994 and informing that Prem Lal had not visited them. He also narrated that on 7.3.1994, he questioned Rupi Chand, but he denied having quarrelled with the deceased on the relevant day. Police investigated the case. It recovered a Pattu (hand made blanket) Ex.P-6 allegedly at the instance of Nachku. The Pattu had allegedly been used for carrying the dead body to the place where it was spotted on 9.3.1994. Police also recovered one Kulhari (axe) Ex.P-1 and Karchhi (ladle) Ex.P-2 at the instance of respondent Nachku and Ram Chhering. These were allegedly used by respondent Nachku and Ram Chherring to hit the deceased on his nose and other parts of the body. Police also spotted stains of blood on the plaster of the walls of the kitchen, which was scrapped. Blood was also found on wooden planks at an open place below the window of the kitchen. Blood stained portions of those planks were cut and separated. Scrapping and wooden chips were sent to Chemical Examiner, who vide report Ext. PW-14/A opined that the scrapping and chips had traces of human blood. On 10.3.1994, respondent Nachku allegedly went to PW-18 Parkash Chand and made a confessional statement that he 4 happened to kill the deceased on Lohri night. Statement of PW-18 Parkash Chand was recorded by Chief Judicial Magistrate, Kinnaur during the course of the investigation. Trial court charged the accused, as aforesaid. They pleaded not guilty. They were, therefore, put on trial. Respondents denied that they were responsible for the death of Prem Lal. We have heard the learned Assistant Advocate General and also counsel for the respondents and gone through the evidence. Case of the prosecution rests upon circumstantial evidence. The first circumstance is that the deceased went to the house of respondents No. 1 to 5 telling that he had been invited by respondent Ram Cherring (now dead) for celebrating Lohri. There is testimony of PW-16 Ram Lal, brother of the deceased and PW1 Lajo, mother of the deceased to this effect. However, it does not inspire confidence. Reasons are many. The deceased allegedly went to the house of respondent on 13.1.1994 and was never seen alive thereafter but the family members of the deceased, namely PW-16 Ram Lal and PW-1 Lajo made inquiries about the deceased only on 16.1.1994, per their own testimony. Even this part of the statement that they made inquires from the respondent on 16.1.1994 does not seem to be believable. The family members of the deceased made no further inquires about the deceased for about more than 1½ months after his disappearance. It was only after 7.3.1994 when PW-20 Gopal Bansal from Nirman came to the area and on being asked by Ram Lal PW-16 and Lajo PW-1 about Prem Lal informed that Prem Lal 5 had not visited their place. FIR was lodged only after the dead body had been spotted on 9.3.1994 and even carried to the hospital for post mortem. Had the deceased, in fact, gone to the place of respondents, as testified by PW-1 Lajo and PW16 Ram Lal, these witnesses would have atleast lodged the report with the police on 7.3.1994 itself on coming to know from PW-20 Gopal Bansal that the deceased had not visited Nirmand which meant that the explanation earlier given by Sempati was false. Next circumstance is recovery of Pattu. According to the prosecution, PW-5 Jasbir and PW-6 Bhardwaj had seen the dead body wrapped in Pattu Ex.P-6. Both the witnesses turned hostile. They did not support prosecution story that the dead body was seen by them wrapped in Pattu. Pattu was recovered from the house of respondent Nachku allegedly at his instance. It was sent to the Chemical Examiner, who did not find any blood on it. Kulhari Ex.P-1 and Karchhi Ex.P-2 were found to bear stains of blood, but the Chemical Examiner could not ascertain what was the origin of the blood. Also the two articles had been recovered much before the arrest of Nachku and Ram Chhering from their house. PW-18 Prakash Chand to whom Nachku respondent allegedly made a confessional statement on 10.3.1994 denied that Nachku made any confession to him. Scrappings from the plaster of the walls of the kitchen of respondents No.1 to 5 and chips of wood were, no doubt, opined to have traces of human blood but it has not been shown that these traces were of the blood of the 6 deceased because there is nothing on record indicating as to what was the blood group of the deceased and that of the traces found on scrappings and chips. In view of above stated position, we see no merit in the appeal. Therefore, the same is dismissed. (Surjit Singh), J [ (Rajiv Sharma), J 18.3.2010 *awasthi*