1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 479 of 2001 Decided on April 19, 2011 ___________________________________________________________ State of H.P. …Appellant. Versus Dharmender Kumar & Another …Respondents. 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.Rajender Dogra, Additional Advocate General, with Mr. Rajender Dogra, Additional Advocate General. For the respondents: Mr. N.K. 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 Code of Criminal Procedure against the judgment dated 5.6.2001, passed by Learned Sessions Judge, Sirmaur District at Nahan H.P., in Sessions Trial No. 10-ST/7 of 2000, for the offence under Section 302 read with Section 34 of the Indian Penal Code acquitting the accused-respondents in reference to the death of Hori Lal (deceased) working as Lineman in Telephone Exchange at Kala Amb. 2 2. The case of the prosecution is that in the intervening night of 24.1.1998 and 25.1.1998 when Hori Lal (deceased) did not come back to his house, his wife started enquiry regarding whereabouts of her husband. On 25.1.1998 a message was received by the police at Police Post, Kala Amb that a dead body was lying near Kali Mata Temple near Main Thapal. Accordingly, ASI Shyam Lal visited the spot and started investigation. After investigation, it was found that injuries on the person of Hori Lal (deceased) were caused by the sword and blunt weapon. 3. After investigation, accused persons were charged for the aforesaid offences and were tried by learned Sessions Judge. 4. In order to prove its case, prosecution examined as many as 17 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. PW.1 Dr.Sanjay Sharma, Medical Officer conducted the postmortem on the body of Hori Lal (deceased) at 12.15 PM and noted as below:- 1. Moderately built adult wearing hand knitted brown sweater, printed shirt, white banyan (all blood stained) brown trouser and white underwear, action shoes (all sealed and handed 3 over to police). 2. The body was found in bent up position with both knees flexed. Shoes laces were found tied to the waited belt. Neck was tightly tied with muffler, which was black in colour. Rigor mortis present. Postmortem staining was present on the defendant parts in lying down position. 2 (a) A sharp incised wound was found on the body 1 ½ x 1” in the left hypochondric region communicating deep with abdominal cavity corresponding to wound, the sweater and shirt were cut 2” x 1 ½ “. 2(c) Incised wound 1 x ½ in size in the occipital region. 2(d) Multiple abrasions on the back and on the both upper and lower limbs. 3. A well defined depressed mark measuring 1 ½ wide low down in the neck below the thyroid cartilage circulating the neck horizontally and completely. Circumference of ligature 14 inch. Knot on the ligature situated posteriorly in the cervical region, ends of ligature measure 39” and 34”, breadth of muffler 5 inch. The furrow caused by ligature was pale with acchymosed margins, no abrasion, neck below the ligature was slightly swollen and reddish in colour, face puffy and 4 cyanosed, eye prominent and closed, conjunctiva congested, pupil dilated sub-cutaneous haemorrhage seen, lips bluish, blood present in the nostrils, tongue congested, swollen dark bluish in colour protruding out, clinched between the teeth on dissection of neck, there was extra vacation of blood into sub-cutaneous tissue under the ligature mark and adjacent muscles were lacerated hyoid bone fractured. PW.1 opined that due to cardio-respiratory failure and hemorrhagic shock caused by strangulation and due to haemorrhage by rapture death of Hori Lal took place. 6. PW.2 J.R. Gaur, Director, State Forensic Science Laboratory, Junga, visited the spot on 27.1.1998. As per testimony of PW.2, the building was opened on his reaching. However, he was not aware that the key of the lock was with the police itself or it had taken from some other person. 7. PW.3 Punna Ram is a witness of recovery of sword Ex.P1 at the instance of accused Dharmender Kumar on 31.1.1998 from the bushes near allied Chemical Factory at Kala Amb. As per testimony of PW3, made in cross- examination, that he went to the place of recovery of sword, both the accused were with the police party. The 5 room in the Telephone Exchange was in possession of father of Dharmender and just adjacent to the Telephone Exchange there is a room of Forest Guard, Vijay Pal. PW3 was also taken by the police to the Telephone Exchange for the recovery of bat Ex.P2. At that time Telephone Exchange was locked from outside and the same was opened by breaking the lock. 8. PW.4 Liyakat Ali, the then Pradhan of Gram Panchayat has stated that accused Dharmender Kumar made a disclosure statement Ex.PJ about location of sword. 9. PW.5 Piyar Chand used to do the cable work at Telephone Exchange, Kala Amb, where Hori Lal (deceased) was working as a Lineman. On 24.1.1998 at about 5.30 PM, Piyar Chand alongwith Randeep Singh and Hori Lal came from the Telephone Exchange Kala Amb towards bus stand, Kala Amb, who came across a vehicle of brother of Randeep and Randeep boarded that vehicle to Nahan and Hori Lal went towards his house. PW.5 reached his house at Nahan at about 6.00 or 6.30 PM. At about 9.00 or 9.30 PM he received a telephone from Usha Devi, wife of Hori Lal, who told him that Hori Lal had not reached home. Upon which PW5 told the wife of Hori Lal (deceased) that he might have gone to attend the complaint. On 25.1.1998 when PW5 reached the Telephone Exchange, Kala Amb, at 9.30 PM, Smt.Usha Devi met him and told 6 that Hori Lal had not reached home, whereas, the Telephone Exchange was locked. Thereafter, the dead body of Hori Lal was found lying on Nahan road. In view of testimony of PW5, Hori Lal had told him that some times the sons of Mahavir Sharma, Technician, who was on leave during those days, had been coming to the Telephone Exchange at night and used to telephone the people and some time abused them. PW5 asked Hori Lal not to allow the sons of Mahavir Sharma to come in exchange. PW.5 categorically admitted that he alongwith Hori Lal and Randeep Singh took liquor in the Telephone Exchange itself on 24.1.1998 at about 5.00 or 5.15 PM. 10. PW.6 Smt.Usha Devi wife of the deceased has stated that on 24.1.1998 when her husband did not come back home upto 11.00 PM she sent a boy to the Telephone Exchange, but Telephone Exchange was found locked. Therefore, PW6 telephoned Piyar Chand at Nahan, but he told that Hori Lal had already left the Telephone Exchange. In view of the testimony of PW.6, on 22.1.1998, a dispute arose because the sons of Mahavir Prashad Sharma, Technician had been using the telephone of the Telephone Exchange unauthorizedly. At that time, Mahavir Prashad and his sons were residing in the same room allotted to him in the Telephone Exchange itself and for this fact Hori Lal had complained to the JTO of the Exchange. In view of 7 the testimony of PW.6, after telephoning Piyar Chand, she also came to the market to trace out Hori Lal, but he was not made available. However, on 25.1.1998 at about 8.00 AM she went to Telephone Exchange and she noticed Piyar Chand and Randeep Singh were outside the exchange and she asked them to accompany her to trace out her husband but they did not accompany her. However, at about 2.00 PM PW.6 Usha Devi came to know about the recovery of dead body of her husband. 11. PW.7 Smt.Anita Chandna had received a telephone from Hori Lal on 22.1.1998 that sons of Mahavir Sharma come to exchange Kala Amb and misuse the telephone. Therefore, PW.7 instructed Hori Lal not to allow them to come to the exchange. On the same evening PW.7 Smt.Anita Chandna also asked Dharmender Kumar, son of Mahavir Sharma, on telephone and directed him that since he had no business to come to the exchange. In turn Dharmender Kumar promised not to come to the exchange. As per testimony of PW.7 Smt.Anita Chandna, made in cross-examination, that on 25.1.1998 on receiving telephone from SDO (Telephone) at Nahan to teach the Telephone Exchange at 9.00 AM. Consequently, when they reached the Telephone Exchange and met SDO (Telephone), she was apprised that Hori Lal has died but when she came to Telephone Exchange at Kala Amb, 8 Exchange was locked, and then she came to know that Piyar Chand and Randeep Singh of Telephone Department were interrogated. 12. PW.8 Randeep Singh has stated that in the month of January, 1998, he was going to Telephone Exchange at Kala Amb alongwith Piyar Chand for doing the cable work, where deceased was working as Lineman. On 25.1.1998 when PW.8 reached Telephone Exchange about 10.00 AM, the exchange was locked from outside. Thereafter, PW.8 Randeep Singh came to know that dead body of Hori Lal was lying near Kali Mandir, then PW.8 went to see the dead body. PW.8 Randeep Singh, however, had denied in his statement, made in cross-examination, that he took liquor with Piyar Chand and Hori Lal in the evening of 24.1.1998. Whereas, Piyar Chand, was said to have accompanied Randeep Singh on the fateful day, has very categorically stated in his statement made in cross- examination that he alongwith Hori Lal and Randeep Singh took liquor in the Telephone Exchange itself on 24.1.1998 at about 5.00 or 5.15 P.M. There is apparent contradiction in the testimony of PW.5 Piyar Chand and PW.8 Randeep Singh. 13. PW.9 S.L.Siyal was posted as SDO(Telephone) has stated that 2-3 days prior to the death of Hori Lal, Smt. Anita Chandana had told him that Hori Lal had told her that 9 sons of Mahavir Prashad had been coming to Telephone Exchange and were misusing the telephone lines. Therefore, PW.9 advised Smt. Anita Chandna to replace the lock of the Telephone Exchange because one of the key of the lock had been with Mahavir Prashad. On 27.1.1998, Dr.J.R. Gour had visited the Telephone Exchange and inspected the rooms of the exchange in presence of PW.9 S.L. Siyal, where Mahavir Prashad was residing and blood stains in that room were noticed. PW.9 had also stated in cross-examination that it was brought to his notice that in the evening of 24.1.1998, Hori Lal alongwith Piyar Chand and Randeep had taken liquor. However, he did not receive any complaint thereafter that sons of Mahavir Prashad had coming to the Telephone Exchange. 14. PW.10 Braham Pal Singh was associated in the investigation. PW.11 Constable Budh Ram, PW.12 Sukhjant Singh and HC Suresh Kumar have endeavoured to support the prosecution case in their official capacity. 15. PW.14 Nitin Goyal has stated that both the accused met him at about 8.15 PM in between the Petrol Pump Kala Amb and Telephone Exchange on 24.1.1998. Their scooter No.HP-18-0543 was also parked there and even accused Dharmender Kumar asked him for a cigarette and since PW.14 has no cigarette, however, 10 PW.14 Nitin Goyal asked them to fetch cigarette from Manthapal or Kala Amb. PW.14 had also enquired them as to why they are standing there, then accused Dharmender told PW.14 that they are waiting for some person. Next day PW.14 Nitin Goyal came to know about the death of Hori Lal. 16. PW.15 Inspector Devi Ram conducted the investigation and recovered some items allegedly relating to murder of Hori Lal. PW.16 SI Shyam Lal and PW.17 Inspector O.P. Yadav both conducted the investigation of the case. On 27.1.1998 the Telephone Exchange was inspected by Dr.J.R. Gour, Director F.S.L. Junga and inspection of room in possession of Mahavir Technician was also conducted, the room was locked and key was taken by accused Dharmender and from that room many of the articles were recovered. In presence of PW.17 Inspector O.P. Yadav, accused Dharmender gave disclosure statement Ex.PJ in presence of witnesses Liyakat Ali and Bhanga Singh that he had kept concealed a sword which he could get recovered. PW.17 has also stated that accused were seen near Telephone Exchange by Nitin Goyal on 24.1.1998. In view of testimony of O.P. Yadav PW.17, Piyar Chand, Randeep Singh and Hori Lal were seen last together on 24.1.1998. However, accused Dharmender was arrested on 28.1.1998 and accused 11 Ashwani was arrested on 29.1.1998 at 1.00 PM. 17. On analysis of the prosecution witnesses and materials on record, it becomes clear that none of the prosecution witnesses or any other person had seen Hori Lal being assaulted. The recovery of sword was not related to injury inflicted upon in the body of Hori Lal. The motive is absolutely absent, only a minor aspect that accused Dharmender, son of Mahavir Prashad was keeping one room in his possession in Telephone Exchange, had been visiting the exchange for making the unauthorized calls and in that respect, Hori Lal had asked him not to do the same, such aspect cannot be material aspect that Dharmender would kill Hori Lal, as there was no enmity or quarrel noticed by anybody by the accused persons and the deceased. Nothing has been brought by the prosecution against accused Ashwani Kumar. The present case is said to be based on circumstantial evidence is not proved, as the chain of events is not complete and is not sufficient to strengthen the prosecution case. The testimony of the prosecution witnesses is not indicative that the accused persons are responsible for killing Hori Lal (deceased). The medical expert's opinion given by PW.1 Dr.Sanjay Sharma, indicates many incised wounds on different part of the body of the deceased, however, that was said to be opined by cardio-respiratory failure and 12 haemorrhagic shock as well as by strangulation and due to haemorrhage by rapture of spleen. The medical opinion of PW.1 Dr.Sanjay Sharma also does not link the weapon and the injuries. In absence of motive and completion of chain of instances, the circumstantial evidence cannot be trustworthy. The chain is completely broken, therefore, in our considered view, there is no scope of interference in the findings arrived at by the learned Sessions Judge. In our considered view, the prosecution has not been able to prove its case beyond reasonable doubt. The prosecution has failed to bring home the guilt to the accused. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 18. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge April 19, 2011 (V.K. Sharma) (Purohit) Judge