IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.366 of 1993 Reserved on : March 19, 2008. Decided on : 1.4.2008 State of H.P. …Appellant. Versus Malkiat Singh @ Chhinda …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. P.K. Sharma, Additional Advocate General. For the Respondent : Mr. Rakesh Jaswal, Advocate, vice Mr. Vinod Gupta, Advocate. Surjit Singh, Judge State has appealed against the judgment of the Sessions Court whereby respondent Malkiat Singh @ Chhinda, who was charged with and tried for an offence punishable under Section 302 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, as per record, is like this. Deceased Baby @ Babli, aged about 17 years, lived with her mother in village Baranda, Police Station Nurpur. On 23rd January, 1992, around 8.30 a.m., she left her house to answer the call of nature in the bushes situated near her father’s agricultural land. She was seen going in the direction of the bushes by her father’s brother Dhian Singh (PW-3), who was uprooting onion seedlings. Around 8.30 a.m. PW-3 Dhian Singh heard a shriek. Half an hour later, PW-3 Whether reporters of the local papers may be allowed to see the judgment? …2… Dhian Singh saw the respondent coming from the side of the bushes with a bundle of grass. He was heading for his house in the village. The deceased did not return home. Her mother, PW-1 Rani Devi, waited for about one hour and then started searching for her. She informed her husband’s brothers PW-3 Dhian Singh and Naseeb Singh, as also the other residents of her village about the non-return of the deceased. Around 2 p.m., she saw the Dupatta of the deceased entangled in the bushes. She went in the direction of the entangled Dupatta and saw the dead body of the deceased, with a number of bleeding stab and cut wounds, on her face as also the neck. She informed her husband’s brothers Naseeb and PW-3 Dhian Singh about her having spotted the dead body of the deceased. Accompanied by the aforesaid two brothers of her husband, the mother of the deceased then proceeded towards the Police Station. On the way, at a place called Pakka Tiyala, ASI Sulbinder Singh (PW-14) met them. PW-1 Rani Devi informed the said ASI about the killing of her daughter. The said ASI reduced the information into writing, which is Ex. P-1, and forwarded the same to the Police Station for the formal registration of the case. He himself proceeded to the spot. Inquest was conducted. Dead body was sent to the hospital for postmortem examination. PW-2 Dr. D.R. Riyal of Civil Hospital, Nurpur, conducted the postmortem examination. He noticed the following ante-mortem injuries: 1. An incised wound was present on the back of the neck. It was starting from the middle of left side sterno mastoid muscle. Running posteriorly and was extending upto the posterior border of the right side sterno mastoid muscle. It was 15 x 6 cms in size and was bone deep and the underlying third cervicle vertebra was cut exposing the underlying the splinalcord. …3… 2. 12 x 4 cms incised wound was present below injury No.1, cutting through the underlying left side sterno mastoid muscle and the muscles of back of neck. It was meeting the injury No.1 posteriorly. The underlying 4th cervicle vertebra had been partially cut. 3. 18 x 6 cms incised wound was present on the back of the neck below injury No.2 and was extending from the left side of the neck backwards and was meeting injury No.1 at the back. The wound was cutting the underlying muscle and the 7th cervicle verbtebra was partially cut. 4. 3 x 1 cm incised wound which was subcutaneous tissue deep was present on the right side occipital region. 5. A ‘Y’ shaped lacerated wound was present on left side parietal region. It was 5 x 3 x 3 cms in size and was subcutaneous tissue deep. 6. 7.5 x 5 cms incised wound which was bone deep present on the left side neck. Just above the clavicle. 7. 2 x 1 cm bone deep lacerated wound was present on left side face, near tragus of left ear with clotted blood. 8. 3 x 2 cms incised wound was present over right thumb at its distal phalynx cutting the underlying bone. 9. 2 x 1 cm incised wound was present over middle phalynx of right thumb on its antero medeal surface and it was cutting the underlying bone. The thumb is attached to the hand by the remaining tag of the skin. 10. 3 x 1 cm incised wound was present over back of right thumb and it was bone deep. 11. Distal and middle phalynx of right index finger has been chopped out leaving behind a clean cut incised wound. 12. There were multiple small contusions and abrasions of varying sizes on the back, thighs, arms. There were red scratches over both sides of iliac fossae on the abdomen. …4… Injuries were opined to have been caused with a sharp-edged weapon. Death was opined to have occurred within ten minutes of the infliction of the injuries. Postmortem was conducted on 24th January, 1992 at 1 p.m. and probable time lag between the death and the postmortem was opined to be 12 to 36 hours. 3. On 24th January, 1992, PW-16 SI Mohinder Singh, SHO, conducted the search of the house of the respondent and recovered Drat Ex. M-3 stuck in the bamboos forming part of the ceiling of the verandah of the house and sealed the same in a parcel with a seal that produced the impression of English letters ‘JC’. The Drat was found to bear a few stains of blood. The same day, pair of shoes worn by the respondent, bearing some stains, which looked like those of blood, was also taken into possession. The said pair of shoes is Ex. M-6. It was also made into a parcel and the parcel was sealed with the same seal as Drat Ex. M-3. Thereafter, PW-16 SI Mohinder Singh went to the site where the dead body was found lying in the bushes. He noticed some blood stained leaves and earth on the spot and picked up the same. The said leaves and earth were put into an empty match-box and the match-box was made into a parcel and the same was sealed with the same seal as the Drat and shoes. The Drat, the shoes and the blood stained leaves and earth were sent to the Chemical Examiner, who initially, vide Ex. P-34, reported that all the three articles were stained with human blood, but on a further reference having been made by the SHO, Police Station Nurpur, for ascertaining the blood group, he opined, vide report Ex. P-35, that it was blood of –AB group. 4. Trial Court has disbelieved the prosecution evidence and acquitted the respondent. …5… 5. We have been taken through the evidence by the learned Additional Advocate General. We have also heard the submissions made on behalf of the appellant-State and the respondent. 6. Testimony of PW-3 Dhian Singh that he heard the shriek about half an hour after he saw the deceased going towards the bushes and about half an hour thereafter he saw the respondent coming from the side of the bushes with a bundle of grass on his head and going towards his house, cannot be believed without corroboration, because he did not disclose these facts to the police promptly. His statement was recorded by the police, for the first time, on 23rd January, 1992, itself. The said statement is Ex. DA. There is no mention of any of these facts in this statement. His attention was drawn to this statement, particularly the omission of the aforesaid facts therein, when he was being cross-examined on behalf of the respondent. He offered no explanation for this material omission in the said statement. It was only on 22nd February, 1992, or say about a month after the occurrence, that he came out with the story that he had seen the deceased going towards the bushes and then heard a shriek and after some time he saw the respondent coming with a bundle of grass from the side of the bushes where the deceased had gone, vide statement Ex. DB made to the Police. The story, thus, on the face of it, appears to be an afterthought. 7. As per statement Ex. DB, PW-3 Dhian Singh was accompanied by his son, a student of sixth class, when he claims to have perceived the aforesaid facts. But the prosecution, for the reasons best known to it, did not examine the said witness to seek corroboration to his testimony. Corroboration may not have been …6… required if the aforesaid facts were disclosed by the witness to the police promptly, that is to say on 23rd January, 1992, itself, when he made statement Ex. DA. 8. Evidence of the prosecution about the presence of stains of human blood of –AB group on Drat Ex. M-3 and shoes Ex. M-6 of the respondent and the matching of the blood group of these stains with the group of human blood found on the leaves and the earth at the site of the occurrence, is also doubtful. According to the prosecution, Drat Ex. M-3 was recovered from the ceiling of the verandah of the respondent but the independent witnesses examined by the prosecution say that the respondent was carrying the Drat in his hand when the police took the same into possession. PW-7 Jagdish Chand and PW-8 Rajinder Singh are the witnesses of recovery of Drat Ex. M-3. Both of them have stated that the respondent was carrying the Drat with him on 24th January, 1992, when the police recovered it. PW-16 SI Mohinder Singh, however, says that it was recovered from the ceiling of the verandah of the house of the respondent. 9. Shoes Ex. M-6 were worn by the respondent when the police seized the same on 24th January, 1992. According to PW-16 SI Mohinder Singh, he sealed the Drat and the shoes in two separate parcels with a seal that produced the impression of English letters ‘JC’ and handed over the seal, after use, to PW-7 Jagdish Chand Pradhan. The same day, i.e. on 24th January, 1992, PW-16 SI Mohinder Singh claims to have picked up from the site of occurrence some blood stained leaves of bushes and earth and to have sealed the same in a parcel with the same seal, with which the parcels containing Drat and shoes were sealed. According to him, …7… he took back the seal from PW-7 Jagdish Chand to seal the leaves and earth. PW-7 Jagdish Chand has no-where stated that the seal after use was given to him, after sealing the parcels containing Drat and shoes and he returned it to PW-16 SI Mohinder Singh to enable him to seal the parcels containing leaves and earth and again it was returned to him. 10. It appears from the evidence on record that probably the seal remained with PW-16 SI Mohinder Singh. The three parcels containing Drat, shoes and the leaves and earth were sent to the Chemical Examiner, initially on 1st February, 1992, per report Ex. P- 34. The same were sealed with a seal having the impression of English letters ‘JC’. The Chemical Examiner carried out the tests the same day and gave the opinion that all the three articles were stained with human blood. The opinion is contained in report Ex. P- 34, dated 1st February, 1992. A back reference was made to the Chemical Examiner on 2nd February, 1992, vide letter No.119/5A, a carbon copy whereof is available on the record (though not exhibited). As per this reference three parcels containing Drat, shoes and earth etc. were sent to the Chemical Examiner for re- examination of the blood stains with a view to determining the group of the blood. Parcel containing Drat bore seven impressions of seal ‘JC’ and two impressions of seal ‘Na.Va.Pa. Shimla’. Similarly, parcel of shoes bore five impressions of seal ‘JC’ and three impressions of seal ‘Na.Va.Pa. Shimla” and the parcel containing leaves and earth bore three impressions of seal ‘Na.Va.Pa. Shimla’ only. It is not understood how the parcels containing Drat and shoes, which were sent back to the Chemical Examiner, vide letter No.119/5A, dated 2nd February, 1992, came to bear impressions of …8… seal ‘JC’ when the said parcels containing these articles, initially sent to the Chemical Examiner, had already been opened and on account of the opening of the said parcels atleast some of the seal impressions on such parcels were supposed to have disappeared. It appears that the seal remained with the SHO and it was not given to PW-7 Jagdish Chand and because of this the parcels containing Drat and shoes were again affixed the impressions of the same seal when they were sent back to the Chemical Examiner, vide letter No.119/5A, dated 2nd February, 1992. 11. Now, if the seal remained with the SHO, the possibility of his having tampered with the case property and having planted blood stains on the Drat and the shoes cannot be ruled out. We may also notice that initially the Chemical Examiner could not determine the blood group, even though he did conduct a test known as absorption elution test meant for ascertaining the blood group, but when a back reference was made to the Chemical Examiner he reported that all the three items bore stains of human blood of –AB group. The possibility of plantation of stains of human blood of –AB group on the aforesaid three articles in the first instance or after the return of the aforesaid articles by the Chemical Examiner with first report Ex. P-34 cannot be ruled out, particularly when it appears that the seal used in sealing the three parcels remained with the SHO. 12. It is also not made out from the evidence on record that the blood group of the deceased was –AB. Neither her blood stained clothes nor a sample of her blood was sent to the Chemical Examiner to ascertain the group of her blood. Leaves and a very small quantity of earth, picked up from the place of occurrence by PW-16 SI Mohinder Singh on 24th January, 1992, cannot be …9… definitely said to be stained with the blood of the deceased. May be that it was stained with the blood of the killer. It has come in evidence that respondent’s blood group is A+, per testimony of PW-9 Ram Pal Sood, Laboratory Technician, Zonal Hospital, Dharamshala. 13. It may not be out of place to point out that the police had arrested a cousin, named Subhash Singh, of the deceased, as a suspect. He remained in police custody for quite some time. A pair of shoes, Drat, pants and a shirt of said Subhash Singh were also seized. Stains of human blood were found on his shirt by the Chemical Examiner, per report Ex. PB. The evidence on record shows that said Subhash Singh had not been able to explain as to where he had been from 8.30 a.m. to 11 a.m., on the day of the occurrence and he also did not go to the spot in search of the deceased alongwith other residents of the village even though he is the son of his father’s brother named Nasib Singh. 14. There is no other evidence, direct or circumstantial, except as has been discussed hereinabove. The evidence against the respondent, which has been taken note of, hereinabove, does not connect him with the commission of the crime. Therefore, the appeal filed by the State against his acquittal is dismissed. 15. Appeal stands disposed of. ( Surjit Singh ), J April 1, 2008(sd) ( Surinder Singh ), J