1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 182 of 1997 Decided on August 13, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Satish Kumar and Others ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Rajinder Dogra, Additional Advocate General. For respondent No.3: Mr. H.K.S. Thakur, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 6.1.1997, passed by Learned Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, H.P., in Sessions Trial No. 9-R/7 of 1996, under Section 302/201 of the Indian Penal Code, acquitting the alleged accused/respondent. 2. It is brought to our notice that respondents-accused No.1 and 2 have already died, therefore, the present criminal appeal in respect of respondents-accused No. 1 and 2 is abated and criminal appeal in respect of respondent-accused No.3 is to be adjudicated upon. 2 3. As per the prosecution, on 9.9.1994, deceased Prem Singh went to Rampur alognwith his vegetable for sale but did not return to his house and his son Chander Mohan has reported the matter on 13.9.1994 alleging that his father has consumed liquor with the accused and thereafter there was no trace of his father. The report has been entered in the rapat rojnamcha. Again the police has received another complaint through Director General of police which was filed by one Rajpal. On the basis of the report, a case under sections 364/34 of the Indian Penal Code, was registered and the police machinery thereafter came in action. In the complaint, Raj Pal, has alleged that on 11.9.1994 Chander Mohan S/O Prem Singh had gone to Rampur to enquire the whereabouts of his father. Ram Dass driver told him that on 9.9.1994 he had seen his father in Bhandari Hotel, with two persons Satish Kumar Shukla and Kehar Singh, who were consuming liquor, he had taken Ram Dass and Satish Shukla in a vehicle and left at their house, thereafter, none had met him at the bus stop. The police has thereafter immediately started investigation and recorded the statements of the witnesses, prepared the site plan and it has come in evidence that the deceased after selling his vegetable has purchased some medicines and he had gone with Kehar Singh and Satish Shukla to his house. All of them had consumed liquor. Kehar Singh accused has disclosed to the police that all of them had consumed liquor at Bhandari Hotel and when they were going towards Nogli and reached near Wazir Bowari, Satish Shukla and 3 Shyam Dass stabbed Prem Singh and he was thrown in Satluj River. The police has recovered the shoes and medicines which were lying below safed Dhank near the bank of Satluj River and a case under Sections 302/201/34 of the Indian Penal Code has been registered against the accused. 4. After investigation, the accused were arrested and charged for the offence under Section 302/201 read with Section 34 of the Indian Penal Code and the case was committed for Sessions Trial. In order to prove its case, the prosecution has examined as many as 14 prosecution witnesses. Whereas, the accused through their statement under Section 313 of Cr.P.C., have shown their innocence and denied the prosecution case. 5. PW.1Chander Mohan son of deceased Prem Singh, has stated that his father had gone to Rampur alongwith his vegetables on 9.9.1994, but he did not return till evening. The witness had gone to Rampur and Shyam Dass met him who told him that he alongwith deceased Prem Singh, Satish Shukla and Kehar Singhi had consumed liquor in Bhandari Hotel and his father was visiting the house of Satish Kumar Shukla, he also met Kehar Singh who was stated that he does not know anything about his father as after consuming liquor he slept in the bus stand. Shyam Dass also told him that after consuming liquor they came out of the hotel. Satish Shukla was badly under the influence of liquor and left him near Referral Hospital, Rampur. The witness has further stated that when he reached back at bus stop, Kehar Singh and Prem Singh were not there as they had gone in a bus to Chuhabag. They got down from the bus near 4 Chuhabag and while they were coming back to Rampur and reached near Safed Dhank (Indira Market) one jeep came from Rampur side and certain persons got down from the jeep and started manhandling Prem Singh and they had thrown him towards Satluj River. There was no light and he could not recognize the assailants. They were searching the deceased Prem Singh for the last one month and made the report on 13.9.1994 which is Ex. PW.1/A. The witness has been declared hostile by the learned Public Prosecutor and in cross- examination at length the witness has admitted the contents of his statement recorded under Section 161 of the Code of Criminal Procedure which is Ex. PW.1/B. He has admitted that three persons got down from the jeep and one of them was Shyam Dass accused. He has also admitted that there was some hot exchange and Shyam Dass pushed his father down. On 9.10.1994 the police has recovered vegetables buckets, two medicines and pair of shoes which were lying on the bank of Satluj River. The buckets are Ex.P1 and P2, shoes are Ex.P3 and medicines are Ex. P4 which were taken in possession by the police vide memo Ex. PW.1/C. In cross-examination the witness has admitted that Shyamn Dass accused has purchased some land in their village about 10-12 years ago. He has also admitted that there was no litigation between his father or Shyam Dass during this period. His father was having good relation with accused Satish. They were having cordial relations and were enjoying drinks together. He has also admitted that his father was looking after the land of 5 Satish. He was making enquiry about the whereabouts of his father from Kehar Singh as and when he met him at Rampur. On 9.10.1994, he had taken him at the spot and shown the place from where Prem Singh was thrown in the River. He has denied that during that period there was heavy rain. He has admitted that they were using the telephone of Satish as they were having good relation with him. He has further stated that many people were present when the buckets were taken in possession by the police from the spot. The witness has further stated that he was residing at village Kotidhar and Himthala. He has denied the suggestion that buckets Ex. P1 and P2, shoes Ex.P3 and medicines Ex.P4 were planted at the spot and thereafter the recovery was got effected through police. He has denied that he was not having good relation with his father. He has also denied that he has not paid the price of apple to his father during 1984. He has admitted that Safed Dhank is a rockey. He has also admitted that if anything is thrown it would straightway go in the river. Shoes were recovered from a distance of 8 to 10 feet from the river. Buckets were also lying on different places. In the further cross-examination on behalf of the accused Kehar Singh, the witness has admitted that the incident has taken place towards Rampur bazar from a memorial built near Safed Dhank. He has admitted that Safed Dhank is a sloppy upto Satluj River. He has denied that Satluj River is flowing below Safed Dhank but stated that it is flowing from the other side. Again admitted that Satluj River is touching one side of the Dhank. He has admitted that buckets Ex.P1 and P2 were intact 6 and all these articles were taken in possession by the police. 6. On analysis of the prosecution witnesses and material on record, we notice that the prosecution sometime has tried to state that the deceased and Kehar Singh had gone towards Chuhabag in a bus where they got down and again come back towards Rampur. They have also tried to prove that when Kehar Singh and deceased reached near Safed Dhank he was manhandled by certain persons came in a jeep and the body of the deceased was thrown in Satluj River. Thereafter, another version which has been brought on record in the statement of PW.1 is that he was told by Kehar Singh that accused Satish Shukla caught hold of Prem Singh and Shyam Dass stabbed him with knife and thereafter, the dead body was brought in a taxi and thrown from Safed Dhank in the Satluj River. The police has failed to locate the taxi in which the dead body was taken upto Safed Dhank and thereafter it was thrown in the Satluj River. Secondly, as per statement of PW.1, the deceased was manhandled near Safed Dhank by the persons who came in a jeep and thereafter they thrown the deceased in the Satluj River. The police has failed to connect the accused with the offence and to locate the jeep and taxi which was allegedly involved in the case. The prosecution case is that the deceased has consumed liquor with all the accused persons in Bhandari Hotel on 9.9.1994 but when the proprietor of Bhandari Hotel PW.4 has been examined in the court, the witness has very specifically denied about the visit of all the accused persons to his hotel or 7 consumption of liquor by them. The witness has only stated that Satish who is known to him has visited the hotel and had seen the cricket match in his hotel. Further the taxi driver PW.8 has very specifically stated that he has given the lift to accused Satish and Shyam Dass on 9.9.1994 upto Referral Hospital, Rampur and thereafter, he had taken the police constable Partap upto Khopari and he did not know anything about the incident. Further PW.10 Shiv Ram has stated that he had given a lift to accused Shyam Dass in his truck at 8.30 P.M. upto Nogli which only suggest that all the accused persons had gone to their houses and nobody had seen Prem Singh deceased with them. Further the police has failed to connect the accused with the commission of offence as none of the witnesses has supported the prosecution version. The alleged incident is of 9.9.1994 and the police has effected the recovery of articles Ex.P1 to Ex.P4 from the bank of Satluj River on 9.10.1994 i.e. after one month of the incident. All the articles Ex.P1 to Ex.P4 were lying intact at the bank of Satluj River but it has come in evidence that Satluj River is flowing below the Safed Dhank and it has also come in evidence that anything if thrown from Safed Dhank it would straightway go in Satluj River. It is not clear as to how all these articles remained scattered lying on the bank of Satluj River. Further even the medicines which the deceased has purchased remained intact as is apparent from the photographs which only suggest that these articles have been planted later on only to create evidence against the accused persons. 8 7. We have gone through the impugned order passed by learned Sessions Judge and have also gone through the prosecution witnesses, we notice that the conclusion derived by learned Sessions Judge, on the basis of prosecution witnesses that prosecution has failed to prove its case beyond reasonable doubt is legally correct. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 8. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 13, 2010 (V.K. Sharma) (Purohit) Judge