IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.92 of 1994 Date of decision: 26.2.2008 State of H.P. …Appellant. Versus Mohinder Singh alias Minder & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. P.M. Negi, Dy. Advocate General. For the Respondents : Mr. Anup Chitkara, Advocate. Surjit Singh, Judge( Oral ) State has appealed against the judgment of the trial Court, whereby the respondents, who were tried for an offence punishable, under Section 302 read with Section 34 of the Indian Penal Code, have been acquitted. 2. Respondents were sent up for trial by the police on the following allegations. Deceased Des Raj went to a village fair on 4.4.1992. The same day his younger brother PW-2 Nand Lal also went to the fair around 2 PM. He saw deceased Des Raj drinking liquor in the company of PW-7 Moti Ram and PW-8 Zaildar and the four respondents. After having a round of the fair, PW-2 Nand Lal asked his brother Des Raj (deceased) to return to the village in his company. Deceased told PW-2 Nand Lal that he could go and that he (the deceased) would be returning late in the evening/night. However, Des Raj did not return that night. Next morning search started for him. PW- Whether reporters of the local papers may be allowed to see the judgment? …2… 2 Nand Lal, his mother Tulsi Devi (PW3) and other residents of the village went in search for the deceased. They could not get any clue. On 7.4.1992, a child named Ramesh son of Jehri Ram, aged about six years, saw someone lying in a nullah and informed the mother of the deceased. Upon getting that information, mother of the deceased accompanied by the other residents of the village went to the nullah. It was found that the man was dead and the dead body was of deceased Des Raj. PW-2 Nand Lal then made inquiries with PW-7 Moti Ram and PW-8 Zaildar because the deceased had been last seen in the company of these two witnesses and the respondents on 4.4.1992 and ever since he had not returned home nor was he seen alive by anybody. These two witnesses told PW-2 Nand Lal that after having three bouts of liquor at the site of the fair, they, the respondents and the deceased, left in two different directions and that while they (the two witnesses) stayed at a place called Samleta, the deceased and the four respondents proceeded together towards their village. 3. Case was registered against the four respondents upon the aforesaid facts disclosed by PW-2 Nand Lal to the police vide statement Ext.P-6. Police visited the spot, inspected the dead body and prepared inquest report Ext.P-2. Dead body was then sent for the postmortem examination. The doctor found number of injuries on the dead body, including certain injuries on the neck and fracture of hyoid bone. Postmortem was conducted on 8.4.1992 at 11.15 AM. The doctor gave the opinion that the death could have occurred between 36 and 96 hours prior to the conduct of postmortem. 4. During the course of interrogation, respondent Mohinder Singh made a disclosure statement leading to the discovery of a bottle. Respondent Zehri Ram also made a disclosure statement leading to …3… the discovery of a “Chappar” (a piece of chopped wood) and a danda (stick), which were allegedly used as weapons of offence to kill the deceased. Clothes of the respondents were also taken into possession and sent to the Chemical Examiner. Stains of human blood were found on the trousers of respondent Zehri. 5. Investigation revealed that about 3 years prior to the occurrence, a dog of Mohinder Singh had bitten a sister of the deceased and because of that relations between Mohinder Singh and the deceased were acrimonious. 6. Trial Court has acquitted all the four respondents holding that the circumstances on which the conviction of the respondents was sought were neither proved nor were they sufficient to come to a definite conclusion that it were the respondents who had done the deceased to death. 7. We have heard the learned Deputy Advocate General as also the learned counsel representing the respondent and also gone through the record of the case. 8. Prosecution has mainly relied upon the testimony of PW-2 Nand Lal, a brother of the deceased, who allegedly saw the deceased in the company of the four respondents and the two witnesses, namely PW-7 Moti Ram and PW-8 Zaildar at the site of the fair, to prove the circumstance that the deceased was last seen in the company of the respondents. Prosecution also relies upon the testimony of PW-7 Moti Ram and PW-8 Zaildar to seek a favourable finding in respect of this circumstance. 9. Though at the first blush the testimony of PW-2 Nand Lal, which is corroborated by the earliest version which he gave to the police, vide statement Ext.P-6, gives the impression that the deceased …4… and the four respondents were together at the site of the fair on 4.4.1992, yet the conduct of Nand Lal (PW2) indicates that what he has stated may not be true and, therefore, his testimony cannot be believed without independent corroboration. Admitted case of the prosecution is that the deceased was supposed to have returned home on the evening/night of 4th April, 1992. He did not return home that night and thereafter, as per testimony of PW-2 Nand Lal, search for the deceased started. Now if the deceased, the respondents and PW-7 Moti Ram and PW-8 Zaildar were seen together at the site of fair by PW-2 Nand Lal, the first thing he (Nand Lal PW-2) was supposed to have done was to have made inquiries with the four respondents and/or the two other witnesses, namely PW-7 Moti Ram and PW-8 Zaildar. He did not do so despite the fact that the respondents were his co-villagers. It was only after the dead body was found that he made inquiries and that too only with the above named two witnesses, and not with the respondents. It has come in the evidence that the above named two witnesses were also treated as suspects by the police during investigation of the case. It was only on 22.4.1992, or say after 15 days of the registration of the case, that the police thought of recording their statements, under Section 161 Cr. P.C. and making them prosecution witnesses. The two witnesses have admitted in the cross-examination that they were physically tortured by the police, before they were made the witnesses. 10. In view of what has been noticed hereinabove, the circumstance that the deceased was last seen in the company of the four respondents on 4.4.1992 at the site of the fair cannot be said to have been proved beyond reasonable doubt. 11. It has come in the evidence, per testimony of PW-2 Nand Lal and more particularly the testimony of PW-7 Moti Ram and PW-8 …5… Zaildar that the deceased was heavily drunk on the fateful evening. These two later named witnesses have stated that the deceased was unable to walk and so one of the respondents, namely Mohinder Singh tried to take him (the deceased) towards latter’s house. Now if the deceased was heavily drunk and was not even in a position to walk to his village, the possibility of his having fallen into the nullah while proceedings towards his house, cannot be ruled out. 12. It may be pointed out that the nullah where the dead body was spotted falls in village Gujrehda where the deceased had his residence, while the fair was held in Lanj. The respondents would not have brought the deceased upto village Gujrehda and killed him there, particularly when they had the opportunity to kill him away from the village. 13. No blood stains were found on Chappar Ext. M-7 or Danda Ext. M-6 by the Chemical Examiner, which are alleged to be the weapons of offence nor is there any other evidence, except the opinion evidence of the doctor that these weapons would have been used to cause the injuries, to connect these weapons with the killing of the deceased. PW-7 Moti Ram and PW-8 Zaildar do not say that these two alleged weapons were with the respondents when they, in the company of the deceased, proceeded towards their village Gujrehda. 14. The alleged motive on the part of respondent Mohinder Singh to kill the deceased is too weak to lead to the inference that he might have killed him. The alleged motive is that three years prior to the occurrence, a dog of this respondent bit a sister of the deceased and because of that they were on inimical terms. The story that they were on inimical terms is belied by the prosecution’s own evidence to the effect that the respondents and the deceased went to the fair …6… together and also had three bouts of drinking in the company of each other. 15. It was also sought to be proved during the course of trial that PW-10 Satya Devi, who was earlier married to respondent Prehlad, was suspected by Prehlad to be having illicit relations with the deceased and because of that he (respondent Prehlad) had divorced her. The story appears to have been cooked up during the course of trial. PW-10 Satya Devi, in her cross-examination, stated that she came to know about the alleged suspicion only during the investigation of the case, when the police told her about such a thing. 16. It is also not clear from the evidence on record, including the testimony of PW-1 Dr. C.L. Chadda, if the death had taken place on the night intervening 4th and 5th April, 1992, as alleged by the prosecution, because the probable time lag between the death and the postmortem, which was conducted on 8th April, 1992 at 11 AM, is stated by the doctor to be between 36 and 96 hours and the time lag between the sustenance of injuries and the death is only a few minutes. 17. As a result of the above discussion, we find no ground for interfering with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J February 26, 2008 (ss) ( Surinder Singh ), J