IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 319/1995 Judgment reserved on 20.7.2009 Date of decision: 24 . 7. 2009 State of H.P. …..Petitioner Versus Shashi Paul and others. ……Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. R.M. Bisht, Dy. Advocate General, with Mr. Vikas Rathore,and Mr. Rajesh Mandhotra Dy. Advocate General, for respondent Nos. 1 to 4. For the respondent : Mr. Bhupinder Ahuja, Advocate for respondent Nos. 1 and 2. Mr. Inderjeet Narwal, Advocate, for respondent No. 3. Surinder Singh The prosecution of the respondents for the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code resulted in acquittal as such the state felt aggrieved and dissatisfied by the impugned judgment of acquittal as such filed the instant appeal. In short, the prosecution case can be summed up thus. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - The deceased, named Surindra was the daughter of PW-3 Zulphi Ram. She was married to accused-respondent Shashi Paul one year prior to her death. On 9.3.1992, she visited the house of her father with an idea to stay there for few days. Around 8.30 p.m. Zulphi Ram went to sleep whereas deceased and her mother kept on working in the kitchen and other children were studying in another room. After some time, PW-3 was awakened by his wife Maya Devi and told him that accused Shashi Paul and his brother Manjeet Singh had come to their house and while standing in the verandah, they asked the deceased to come out on some pretext. She went out but thereafter she did not return. It is alleged that around 1.30 a.m. accused Shashi Paul and Manjeet Singh both revisited the house of Zulphi Ram and he inquired about his daughter Surindra. They informed him that she was just coming but when she did not return, Zulphi Ram again enquired from Shashi Paul then he replied that she was sleeping in her room. He searched her in the room but she did not find there. Thereafter Shashi Paul accused alleged to have told him that she had gone to the house of Desh Raj,(PW-4) their neighbour. Then they went to the house of Desh Raj. She was also not there. Accused Shashi Paul then told him that she had gone to his village Makran. Accused Manjeet Singh was asked to stay back in the house till she was traced and he along with accused - 3 - Shashi Paul went to Makran, the native village of the accused. Shashi Paul told Zulphi Ram to stay out. He went inside his house and came back after a while with his mother and sister. His mother told him that Shashi Paul accused had done something wrong to them and Surindra was not there. Zulphi Ram along with Shashi Paul returned to his village Patta-brahmna and awakened the villagers, told them about the facts. They searched for his daughter but she could not be found anywhere. Shashi Paul accused stayed for the night in the house of Zulphi Ram. When deceased could not be traced, Zulphi Ram informed Desh Raj, Ward Member of the Panchayat. PW-2 Surinder Kumar also came to know that the daughter of Zulphi Ram was missing. On 10.3.1992 early in the morning after taking bath and paying obeisance in the temple, he came to know from some boys that one dead body of a lady was lying in village Samlana. He went to Joginder Singh and reported the matter to the police. Around 8/9 a.m. Girdhari and Joginder informed Zulphi Ram about the dead body. He reached at the spot at 10 a.m. The police had already arrived there and recorded his statement Ext. P-5 at 1.15 p.m. wherein he alleged that after marriage the deceased used to complain, on her visit to them that her husband and other members of the family did not treat her well for not bringing any dowry. Whenever Shashi Paul was confronted about such complaints he used to inform them that he (Zulphi) did not give - 4 - anything to him in dowry. Thus, he apprehended the foul play at the hands of the respondents. The dead body was got identified from PW-3, her father Zulphi Ram. There were number of injuries on various part of her body. Her dead body was naked except a shirt, which was entangled around her one hand. The autopsy of the dead body was performed. The number of ante mortem injuries which were found on her dead body were noted in the Post Mortem Report. In the opinion of the doctor, deceased had died due to shock and haemorrhage on account of head and spine injuries. Her viscera was sent for forensic examination but report Ext. P-51 did not disclose anything offensive. On completing the investigation, challan was presented against the respondents in the court for their trial. The respondents faced the trial for the offences aforesaid but at the end, they were acquitted on the ground that they could not be connected with the alleged offence. We have heard learned counsel for the parties and have carefully reappraised the evidence on record. The whole case against the respondents revolves around the circumstantial evidence. The prosecution relied upon following circumstances to connect the respondents for committing the murder of Surindra. - 5 - (i) Accused Shashi Paul had strained relations with his wife Surindra as she brought no dowry in marriage. (ii) The deceased was last seen in the company of her accused husband Shashi Paul and his brother Manjeet Singh (iii) Shashi Paul offered false explanation regarding the whereabouts of his wife. (iv) Conduct of accused Shashi Paul after seeing the dead body of the deceased (v) Ante mortem injuries found on the person of the deceased and recoveries consequent upon the disclosure statement made by the respondents. At the very outset we would like to say that the evidence on record does not at all prove any of the above circumstances in accordance with law except the fact that it was a homicidal death. It has been constantly reiterated by the apex Court where a case rest squarely on the circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [Please see: Arun Bhagta @ Thulu v. State of West Bengal AIR 2009 SC 1228]. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond a reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from the circumstances. The apex Court also laid down the principle of law that where - 6 - the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring offences home beyond a pale of doubt. [Please also see: Sharad Birdi Chand Sarda vs. State of Maharashtra AIR 1984 SC 1622] Now in view of the above settled legal preposition we proceed to re-examine the prosecution evidence, adduced on record. Pertinently PW-6 Smt. Maya Devi, mother of the deceased did not state anything about the complaints having been made regarding demand of dowry by her daughter after her marriage with accused Shashi Paul, whereas PW-3 her father Zulphi Ram made the allegations after due deliberation as discussed hereinafter. Further when she had reached the spot at 8 a.m. where the dead body was lying. The police reached after about one hour from her arrival, but she did not tell anything nor made any allegation of any nature against the respondents to the police. According to her, police did not ask anything from her. She also deposed that she had stated to Girdhari, Joginder, Ashok and Desh Raj about whatever had happened the previous night but she did not spell out before the court anything. Out of the aforesaid witnesses only Desh Raj (PW-4) Joginder (PW-9) were examined Desh Raj did not support the prosecution case at all and whereas Joginder did not corroborate her above version. Till 1.15 p.m. when PW Zulphi Ram got recorded - 7 - his statement under Section 154 of the Code of Criminal Procedure, there were no such allegations made against the respondents. The police prepared the inquest report Ext. P-6 on the same day but the time is not mentioned therein. At that time PW-3 Zulphi Ram and up-Pradhan Beer Singh were present, their signatures were obtained thereon. But even at that time, no allegations were made by Zulphi Ram to the police against the respondents. The statement containing allegations against the respondents, as already stated above, was recorded on the basis of his statement Ext. P-5 at 1.15 p.m. and was recorded on the same day at 1.45 p.m. which culminated into the FIR a copy of which was sent to the Judicial Magistrate Jawali which was received by him at 6 p.m. at his residence. This goes to show that the FIR was ante-timed and the allegations made by Zulfi Ram in Ext. P-5 was made after due deliberations to implicate the respondents. The stand taken by the accused persons is that although they had visited the house of parents of the deceased in the evening on 9.3.1992 in the evening but they did not find the deceased there. Shashi Paul asked his mother-in- law (PW-6) about his wife. She told that she had gone to the house of their neighbour and would be back. They waited up to 2/3 hours when she did not come PW-3 was informed and all of them went to search of her but could not locate anywhere. She went missing. The report Ext. P-4 by PW-2 - 8 - also makes a reference to this fact. These facts go to show that till next day, none of the persons were aware of her whereabouts. Even PW-6 Maya Devi, mother of the deceased in her statement clearly stated that Shashi Paul accompanied by her husband (PW-3) and other villagers had gone in search of the deceased and in the morning respondent Santosh Kumari sister- in-law of Shashi Paul along with her husband visited her and asked her to go to a “Cheli” to inquire about the whereabouts of the deceased. Al this goes to show that no one was aware of as to where the deceased had gone. Further, the statement with respect to the last seen of the deceased with respondent Nos. 1 and 2 also does not inspire confidence. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In the instant case, the circumstance of last seen, from which the circumstance could be drawn is not established beyond doubt as already discussed supra. Further it beats our imagination that had the respondents committed the crime, why they would have returned to the house of parents of the deceased when they had the option to escape and avoid the public glance. The statement of PW-3 Zulphi Ram regarding false explanation given by Shashi Paul - 9 - and visiting various places as disclosed by him were not corroborated by Desh Raj PW-4 or his wife PW-6. Thus, the statement of Zulphi Ram remained uncorroborated. Therefore, the conduct evidence and the theory of last-seen both fades away. The recovery of the alleged weapon of offence could also not be connected with the injury in question found on the dead body. PW-12 Dr. Anil Mahajan could not relate any of the injuries of the deceased with the weapon of offence. Further PW-4 Desh Raj denied having Shashi Paul and Manjeet been interrogated by the police in the his presence. He denied that they ever made disclosure statement to the police. Although, he admitted his signature on Ex. P-8 but denied its contents. He also denied that the recoveries were made by the accused pursuant to their disclosure statements. However, he stated that police gave beatings to the accused persons on 10th and 11th of March, 1992. Further, it is worth noting that the dead body of the deceased was found naked having various injuries on her person near the Railway Track. Neither the police nor the doctor had tried to find out if it could be a case of rape- cum-murder. Neither vaginal swab nor any minute examination of her private parts was conducted by the doctor to rule out this possibility also. According to the prosecution story the alleged offence had taken place during the intervening night of 9/10-3-1992 whereas the - 10 - cloths of the accused were taken into possession by the police on 12.3.1992 i.e. after about 2 days, whereas both of them were with the police on the day when the dead body was found lying near the railway track and even the complainant and other villagers were also with them, then it is not understood how these blood stains on the clothes of respondents could not be spotted by any of the persons present there. Whereas PW-4 Desh Raj stated that the respondents were given beatings, the possibility of the blood stains could be the result of that. The report of the forensic science also could not ascertain or match the blood group with the blood of deceased to connect the respondents with the alleged offence. On the close scrutiny of the aforesaid evidence on record, we are unable to find out that the deceased and her husband Shashi Paul were having strained relations. Secondly, there is no cogent evidence with respect to the last seen theory. Thirdly, the alleged false explanation put forth by Shashi Paul regarding the whereabouts of the deceased soon after she was found missing is also not borne out from the evidence on record whereas the defense version stands probablized that from the time, respondent Nos. 1 and 2 were informed about the missing of the deceased, both of them had been searching for her along with father of the deceased and other villagers throughout the night. Fourthly, the recoveries pursuant to the disclosure statement - 11 - are of no consequence after three days of their arrest which otherwise could not be proved in accordance with law. Lastly, there is no evidence that respondent Shashi Paul had reacted in a suspicious manner or quite indifferently after seeing the dead body of his wife, which could even raise a suspicion on him. Thus, on minute analysis of the above circumstances, we find that the learned trial court had rightly picked up, examined and disbelieved each circumstance and came to the conclusion that the prosecution failed to prove the case against the respondents beyond a reasonable doubt. Therefore, we see no reason to interfere with the impugned judgment of acquittal. Accordingly, the appeal is dismissed and the respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case. Send down the records. (Deepak Gupta),J. July 24 , 2009 (Surinder Singh),J (cm)