IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 741 of 2002 Date of Decision: 14.11.2011 State of H.P. …Appellant. Versus. Yashpal Singh …Respondent. 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. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr. J.L. Bhardwaj and Mr. R.K. Negi, Advocates. Deepak Gupta, J (oral) 1. This appeal by the State is directed against the judgment dated 31.7.2002 passed by the learned Additional Sessions Judge, Una whereby he acquitted the accused Yashpal Singh @ Jaspal Singh of having committed the murder of one Subhash Chand. 2. The prosecution story, in brief, is that on 3rd August, 1998 PW-2 Nanak Chand, brother of deceased Subhash Chand, lodged a complaint with the police. According to this complaint, on the previous evening i.e. 2.8.1998 his brother Subhash Chand had come to the house alongwith one boy and 2 stated that he was going to attend a marriage party. On the next morning at about 5.30 a.m. one Babli (not examined), an employee of the Electricity Department, informed the complainant Nanak Chand that the body of his brother Subhash Chand was lying on the road near Balkholi. On getting this information, Nanak Chand alongwith Babli reached the spot where one Smt. Kamla Devi had also reached. They came to know that Subhash Chand had accompanied the Barat of Sukh Dev to village Malangar. Since the body of the deceased had injuries on it, the complainant Nanak Chand suspected that his brother had been murdered by some persons and lodged the F.I.R. Ext.PE under Section 302 of IPC. 3. During the course of the investigation, the police found that the deceased had accompanied the Barat of Sukh Dev and reached village Malangar on the night intervening 2.8.1998 and 3.8.1998. Thereafter he alongwith several other persons, including Suresh Kumar, Munish Kumar and Jeewan, boarded a truck and went to a place called Thandi Koohi near Bangana. There he consumed liquor. Suresh Kumar and the others went to the house of the in-laws of Suresh Kumar at village Dharoh and Subhash Chand alone was left at Thandi Koohi at the Dhaba of PW-4 Baldev Singh. 3 4. The prosecution version is that at Thandi Koohi, the deceased Subhash Chand boarded Tempo No. HP-20-1430 being driven by accused Gurmeet Singh and they went towards Thana Kalan. Accused Yashpal who was driving the other Tempo No. HP.20- 5610 also went towards Thana Kalan. It is alleged that the deceased told the two persons i.e. Yashpal and Gurmeet Singh that he had some intimacy with some woman and agreed to procure that woman for them for immoral purposes. He, therefore, went to bring this woman from village Teehra. Both the tempo drivers also took their tempos and parked the same at a distance of about 1 Km from Teehra. Accused Yashpal allegedly gave Rs.100/- to the deceased for the purpose of getting the woman. After 10 minutes, deceased Subhash Chand came back and told the two persons that some more money was required but they refused. He again went back to procure the woman but came back empty handed and demanded more money. 5. On this account, some fight took place between Gurmeet Singh and Yashpal on one side and the deceased on the other. These two persons beat the deceased. Gurmeet Singh allegedly caught hold of the deceased whereas accused Yashpal inflicted blow with iron rod on his head due to which he suffered serious injuries. When Subhash Chand fell on the 4 road they spread a towel on the road and placed his dead body thereupon. On this basis, they were arrested and thereafter charged with having committed the offence aforesaid. 6. Accused Gurmeet Singh died during the trial and accused Yashpal was acquitted after trial. Hence, this appeal by the State. 7. Though the prosecution has made a number of allegations, but none of the allegations or circumstances relied upon by the prosecution has been proved on record. PW-3 Suresh Kumar was also one of the Baratis and according to him he left Subhash Chand at Thandi Khoohi at the Dhaba of Balbir Singh. This is the entire evidence of the prosecution in this regard. There is no evidence at all as to what happened thereafter. Even if this evidence is taken as the gospel truth, all that can be inferred is that the deceased Subhash Chand was left behind by PW-3 Suresh Kumar in the Dhaba of PW-4 Baldev Singh and thereafter he boarded one of the tempos. Whose tempo he boarded is not clear from the evidence of PW-4. PW-4 Baldev Singh is the owner of the Dhaba. As per him, the deceased Subhash Chand took a lift in one of the tempos and went towards Thana Kalan. He does not know anything about what happened thereafter. 5 8. The other circumstance relied upon by the prosecution is the recovery of the iron rod which was allegedly used to kill the deceased. The disclosure statement in respect of the rod is Ext.P-1 and as per this statement, the accused allegedly informed the police that he had hidden the iron rod behind the seat of tempo No.HP-20-5610. This disclosure statement Ext.P-1 was recorded by PW-13 Harnam Singh in the presence of PW-5 Tarsem Lal and Smt. Darshana Devi (not examined). The recovery memo of the iron rod is Ext. P-M and has been scribed by PW-13 and according to this recovery memo the iron rod was recovered from the tempo No. HP-20-5610. However, PW-5 Tarsem Lal gives a totally different version. According to him the accused made statement Ext.P-1 and led the police party to the tempo but no rod was found inside the tempo. One Saini, who was the owner of the truck, was asked where the rod was and the same was recovered from the store of said Saini. The rod was taken into possession after sealing the same. This statement was made by Tarsem Lal in examination-in-chief. He was not even declared hostile and cross-examined by the prosecution. 9. PW-8 Sat Pal Saini is the owner of the tempo. In examination-in-chief he has not stated anything about the recovery of the rod in his presence. In his 6 cross-examination he has stated that the tempo was hired by one Jagdish Chand and when the tempo came back some chips and marbles lying in the other truck were loaded in the two tempos. Thereafter, both the tempos went to village Doh and the iron rod which was lying in the tempo was also taken into possession alongwith the tempo and the documents. The recovery of the rod itself is therefore, not proved to have taken place in the manner alleged by the prosecution because none of the witnesses states that the rod was recovered at the instance of accused Yashpal. 10. In view of the above discussion, we are of the considered view that the learned trial court was justified in acquitting the accused. We find no merit in the appeal which is accordingly dismissed. Bail bonds discharged. ( Deepak Gupta ) Judge. November 14, 2011 (V.K. Ahuja) (vt) Judge.