IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.416 of 1996 Date of decision:30.3.2010 State of H.P. ... Appellant Versus Kailasho and another … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.N.K. Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 10.10.1995 passed by the learned Sessions Judge, Chamba in Sessions Case No.40 of 1994, whereby he acquitted the accused of having committed offences punishable under Sections 302, 460, 201 read with Section 34 IPC. The prosecution case, in brief, is that PW-1 Karam Chand along with one Gandhi Ram and Jarnail Singh had taken on contract the orchard belonging to Baba Mishra Giri in village Gauwa. There were Mango, Gauva, Galgal and banana plants in this orchard. On 4th August, 1994 at 1Whether reporters of Local Papers may be allowed to see the judgment? 2 about 6 p.m., PW-1 Karam Chand got his statement recorded with the police to the effect that on 31st July, 1994 he had gone to the orchard and seen Baba Mishra Giri present in his Kutia (Hut). Thereafter, he again went to the orchard on 1st, 2nd and 3rd August, 1994. It would be pertinent to mention that on 3rd August, according to this witness, one Amro (not examined) met this witness and told him that he had come to give milk to Baba but had found the Kutia locked. Thereafter, Amro went back. On 4th August, 1994 one Lehru Ram (not examined) had come to meet the Baba. PW-1 Karam Chand along with Lehru Ram went near the Kutia door and found a foul smell emanating from the kutia. Therefore, they suspected that Baba may have been killed since the Kutia had been locked from outside and therefore a report was lodged. After this report was lodged the body of deceased Baba was sent for post mortem. The cause of death could not be ascertained since the body was found totally putrefied by them. The investigation was carried out by the Investigating Officers PWs 19 and 20 and during the course of investigation they gathered information that the two accused had stolen the goods from the Kutia of the Baba and sold them. They were 3 arrested and they allegedly made disclosure statement in which one of the accused, Kailasho made a disclosure statement about a Chhura (knife) which he had kept concealed behind a rope. A disclosure statement was also made by the other accused Chaino with respect to the wrist watch of the deceased and other items stolen from the Kutia. According to the prosecution some of these goods stolen by the two accused were sold by them to some scrap dealers. The learned trial Court acquitted the accused mainly on the ground that there were various contradictions in the version of the prosecution and the circumstantial evidence led and proved on record did not lead to the irresistible conclusion that it was the accused alone who had committed the murder of the Baba. Hence, the present appeal. We have gone through the entire record and find that the learned trial Court has not taken into consideration the most important aspect of the matter. According to PW-1 Karam Chand he had last seen the Baba on 31st July, 1994. On the other hand PW-11 Dr. Narinder Kumar Surya, who conducted the post mortem on the dead body of deceased Baba Mishra Giri, has stated in no uncertain terms that the duration between 4 the death and post mortem was more than 10 days. The post mortem took place on 5th August, 1994. Therefore, the death of the Baba had taken place latest by 26th July, 1994. How could PW-1 have then seen the Baba alive on 31st July, 1994? It stands proved on record that the death of Baba took place towards the end of July. The body was found totally putrefied and even the scalp was missing. The same had been eaten away by the maggots. The area in which the accident took place obviously falls in the lower hills since according to the prosecution there were Mango trees in the orchard. This is one of the warmest months of the year and the dead body would start smelling within 48 hours. The statement of Karam Chand that he visited the Kutia on 3 days i.e. 1st, 2nd and 3rd August, 1994 and found the same locked does not appear to be correct. If he had visited the Kutia he would have definitely detected a foul smell. Thus, it is clear that he made a false statement to the police. As per the medical evidence the Baba had died on or before 26th July, 1994. Therefore, the question of this witness meeting the Baba on 31st July, 1994 did not arise. In fact the Investigating Officer should have interrogated 5 this witness but this has not been done in the present case. It would be pertinent to mention that the statement of PW-1 that he saw the deceased on 31st July, 1994 is totally false. Despite that he was made a witness to many of the other recoveries made on the disclosure of the accused. He should not have been made a witness to the recoveries in view of the fact that he had made a patently false statement to the police. This casts a doubt on the illegal disclosure statements. Dr.D.K. Ghosh, the then Professor and Head of the Department of Forensic Medicine in the Indira Gandhi Medical College was examined as PW-12. He also opined that the body was in a highly decomposed condition at the time when the atopsy took place on 5.8.1994 at 4.30 p.m. There was no injury on soft tissues or bones found anywhere on the body. All the internal viscera and organs were found missing since the body was totally putrefied by that stage. He clearly stated that it was not possible for him to give any opinion as to the cause of death in view of the observations made by the team which conducted the post mortem. He also clearly stated that there was no evidence to reach to the 6 conclusion that the deceased had died on account of any such injuries caused by a sharp edged weapon. Keeping in view the medical evidence the prosecution has failed to establish that the deceased was murdered. There is nothing on record to show that the deceased died due to any injuries caused to him. The possibility of his having died a natural death cannot be ruled out. In addition to the above two circumstances i.e. the false statement of PW-1 and the medical evidence, the other circumstance which works in favour of the accused and against the prosecution is that even the knife which was allegedly recovered at the instance of Kailasho accused did not have any blood on it. The accused are linked with the crime on the ground that certain articles of Baba were found with them and the door was locked from outside. Though in the disclosure statement made by Kailasho accused it was stated that he could get recovered the key of the lock with which the door of the Kutia was locked but in fact this key was never got recovered. The recovery of other items, as held by the trial Court, is also not free from doubt. Even if we accept the recovery to be correct, it 7 would at best only make out a case of theft against the accused and not a case of murder. The prosecution has also tried to link the accused with the murder on the ground that they were found in the area where the orchard is situated on or around the day of the occurrence. First of all the day of occurrence is not certain since according to PW-1, Baba was alive on 31st July whereas according to the medical evidence, Baba died 10 days prior to the post mortem. The accused admittedly belong to a village close-by and therefore their presence on the spot is not an unusual occurrence. The prosecution has miserably failed to bring home the guilt of the accused. There is no merit in the appeal. In view of the above discussion, the appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. March 30, 2010 ( Sanjay Karol ), J. PV