IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.687 of 1996 Judgment reserved on: 10.5.2010. Date of decision: 13.8.2010 State of H.P. ... Appellant Versus Hem Raj … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Dy.A.G. For the respondents: Mr.N.K. Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal by the State is directed against the judgment dated 27.3.1996 delivered by the learned Sessions Judge, Chamba in Sessions Case No.1 of 1995. PW-1, Chamaru Ram, father of the deceased Kumari Ratto, a young girl aged about 15-16 years, lodged a complaint with the police at Police Station, Kihar, District Chamba on 29.5.1994. In this complaint it was alleged that he along with his four daughters, two sons and other family members are residing in village Dhaneli. His house is situated in a lonely place at some distance from the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 village. A public path passes in front of his house. According to him, on 29.5.1994 he woke up at 4 a.m. and the other family members also woke up about the same time. At about 5 a.m. the complainant, his wife Smt.Kissi, Hoshiaru ( god father ), son Prem Raj had gone to the fields to sow the seeds. He instructed his daughters Chelo to cook meals and Ratto was told to dispose of the cow dung in the field. She was also told that thereafter she should take her meals and come to the fields with siul seeds and also bring the sheep and goats for grazing. At about 7.30 a.m. the complainant heard his daughter Chelo shouting and asking them to come home as Ratto had been killed. They came home and found that Ratto’s dead body was lying in the inner room where the ornaments and cash used to be kept. Blood was scattered all over the room. They brought the body out and found that Ratto had been murdered by cutting her throat with a sharp edged weapon. Her shirt was torn and the upper body of her part was naked. A wooden ‘sheath’ of a knife was lying at the place where his daughter had been killed. He expressed his suspicion that some person had come to commit theft in the house but when Ratto came inside the room to take out the siul 3 seeds he murdered her. The aforesaid statement was made by the complainant to PW-11 Head Constable Jitender Kumar at Dhaneli Rest House where he was on patrolling duty. It was sent to the police for registration of the case through PW-10 constable Hoshiara Ram. On the basis of this statement FIR Ext.PM was registered. Thereafter, the police started investigating the matter. Inquest report Ext.PB was prepared. The blood stained wearing apparel of the deceased and other articles found on the spot along with a wooden ‘sheath’ were taken into possession. The blood samples were lifted from the area and all these articles were sent to the chemical examiner. The body of the deceased was sent for post mortem examination and a team of three doctors including PW-9 Dr.Kapil Sharma conducted the post mortem examination. The opinion of the doctors was that the deceased had died as a result of a sharp injury on the throat which led to respiratory and circulatory failure. The accused was arrested on 9.6.1994. It is alleged that on the same day he made a disclosure statement Ext.PF under Section 27 of the Indian Evidence Act that he had hidden the weapon of offence in rear wall of the 4 house of one Jamaldin in village Bhujman. Consequent to this disclosure statement Ext.PF, knife Ext.P-6 was got recovered by the accused vide memo Ext.PH. The clothes of the accused i.e. his Pajama, underwear and shirt were taken into possession and they were also sent for chemical examination. Site maps were prepared of the place of occurrence as well as of the place of recovery of knife. The FSL report Ext.PS shows that human blood was present on the wearing apparel of the deceased as well as her shoe and the mala which she was wearing. Human blood was also found on the blood stained earth taken into possession by the police from the spot. The knife Ext.P-6 and underwear of the accused were also found to have human blood. However, the blood group could not be ascertained on any of these articles. No blood was found on the pajama and shirt of the accused. No evidence of semen was found either on the clothes of the deceased or of the accused. On completion of the investigation, report under Section 173 Cr.P.C. was submitted against the accused. Since the offence was exclusively triable by the court of sessions, the same was committed to the court of Sessions. 5 The accused was charged with having committed the offence as aforesaid. He pleaded not guilty and claimed trial. After trial he has been acquitted. Hence, the present appeal by the State. We have heard Sh.Vivek Thakur, learned Additional Advocate General for the State and Sh.N.K. Thakur, learned counsel for the accused. Nobody saw the accused actually killing the deceased. The case against the accused is based on circumstantial evidence. The prosecution relies upon the following circumstances to fasten the guilt upon the accused: 1. Death of the deceased in unnatural circumstances. 2. Motive on the part of the accused to commit the crime. 3. Past conduct of the accused. 4. No cause for false implication of the accused. 5. Presence of the accused near the spot at the material time. 6. Presence of human blood on the underwear of the accused. 6 7. Recovery of the knife Ext.P-6 consequent upon the disclosure made by the accused. As far as circumstance No.1 is concerned, there is no manner of doubt that the deceased, a young girl, was murdered in a gruesome manner. However, this by itself cannot be used as circumstances against the accused. Before discussing the other evidence it would be appropriate to notice that the family of the accused and the family of the deceased live in the same village, namely, Dhaneli. It is apparent that the relations between the two families were cordial. PW-3 Kumari Chelo, sister of the deceased, has testified that on the date of occurrence itself, Daulat, brother of the accused, had come to their house to return a ‘baltoi’ (a big brass vessel used for cooking) which Daulat had borrowed for some ceremony in their house. Chelo asked him to take his meals at her house but he refused to accept offer and went away. This by itself shows that the relations between the two families were cordial. Circumstances No.2&3 are being taken up together. According to the prosecution the motive of the accused was to commit theft and it is alleged that he was a known 7 thief. He had gone to steal gold and silver ornaments kept inside the room and suddenly the deceased arrived there and he killed her. The prosecution relies upon the statement of PW-7 Suddar Din and PW-8 Yog Singh in this behalf to prove the fact that the accused is a habitual thief. At the outset, we may state that there was no material on record to show that the accused was ever criminally charged with having committed theft nor faced any such prosecution. PW-7 Suddar Din states that about 4 years prior to his making the statement in Court i.e. about 3 years prior to the murder of Ratto Devi, he had caught the accused committing theft in his shop. He however admitted that no criminal case was lodged nor any other proceedings taken out in the Panchayat. According to him, since the accused bagged for mercy he let him go. Surprisingly, this witness admits that on 29.5.1994 he had met the police when it came to the spot but he did not tell the police about the accused being involved in the theft. According to him, he was called by the police after about 15/20 days when he disclosed these facts to the police and his statement Ext.DF was recorded. There is an over- writing on the date in Ext.DF. It is more than apparent that 8 the date recorded earlier was 31.7.1994 but has been later changed to appear as 30.6.1994. Even the witness admits that he never made this statement on 30.6.1994 but 15-20 days later. Further more this witness admits that for 3 years till he told about this fact to the police he had not told anybody that the deceased had committed theft in his house. Therefore, no reliance can be placed on his version. As far as statement of PW-8 Yog Singh is concerned that is even worse. His statement was recorded on 28.8.1994 three months after the occurrence. According to this witness the accused had stolen a tape-recorder from his house in October, 1991. He was confronted with his statement Ext.DG in which it was mentioned that theft took place in October, 1992. When asked why he did not file a complaint, he stated that the accused had returned the tape-recorder on the same day in the evening. He was confronted with the statement recorded under Section 161 Cr.P.C. Ext.DG in which it was mentioned that the tape recorder was returned the next day. Surprisingly, this witness states that from the time when the theft took place till his statement was recorded by the police he had not told any person about the theft. 9 Even assuming that these witnesses did not want to get involved in a police case, if such thefts had taken place they would have informed some local villagers. It cannot be believed that they would keep silent for so many years. Therefore, no reliance can be placed on their statements. The aforesaid circumstances have also not been proved. The next circumstance that there is no cause for false implication of the accused, in our considered view is no circumstance whatsoever in the eyes of law to convict a person. The next circumstance relied upon by the prosecution is that the accused was found present near the scene of occurrence a little before the murder of Ratto Devi. PW-4 Paras Ram states that in the morning he had seen accused going towards the house of the deceased and sometime later he came to know that the deceased had been murdered. Admittedly, the path on which PW-4 Paras Ram allegedly saw the accused near the house of the deceased was a public path. The accused resides in the same village and there would be nothing unusual in seeing the accused on the public path. Secondly, PW-4 has made a material improvement while 10 testifying in Court. In his statement made to the police, under Section 161 Cr.P.C. Ext.DB he had simply stated that he saw the accused on the public path going towards the house of the deceased. While appearing in Court he made a material improvement and stated that he had seen the accused going up to the door of the house of the deceased. He was confronted with this improvement and it is apparent that at best he saw the accused on the path but he did not see the accused going inside the house of the deceased. This circumstance also has not been proved. The next circumstance relied upon by the prosecution is the presence of human blood on the underwear of the accused. As mentioned above, the Forensic Science Laboratory has been unable to give the grouping of the blood. It would also be pertinent to note that the case set up by the prosecution is that the accused had gone into the house to commit a theft and he was caught red-handed by the deceased and therefore murdered her. Admittedly, he was wearing a pajama and a shirt and the underwear was obviously born underneath the pajama. No blood has been found on the Pajama and the shirt. How could the blood go 11 through the pajama and shirt and stain the underwear without there being any blood marks on the pajama and shirt? This clearly shows that either the blood was introduced at a later stage or in any event the same is not the blood of the deceased. It is nobody’s case that the accused had taken off his shirt and pajama before committing the theft. The last circumstance relied upon, is recovery of the knife Ext.P-7. Before coming to the recovery of the knife it would be apposite to recall that on the date of the murder i.e. 29.5.1994, a wooden sheath of a dagger/knife had been recovered. It is alleged that the accused was arrested on 9th June, 1994 and made a disclosure statement on the same day. We have gone through the disclosure statement and find that it is more in the nature of a confession. However, even if we exclude the confessional part and confine ourselves to the disclosure of the knife, there are unexplained contradictions. PW-4 Paras Ram states that the disclosure statement was made by the accused in village Dhaneli in the presence of 15/20 persons. This witness also states that the accused had been arrested 2 to 4 days prior to making the statement. However, according to the Investigating Officer PW-16 SI 12 Kishan Chand the accused was arrested on 9.6.1994 itself at about 11 a.m. The police version is that the father of the accused produced him at Police Station, Kihar at 11 a.m. Thereafter, his statement under Section 27 was recorded at Police Station, Kihar. Thus, there is variation regarding the time and place of this statement. Whereas, the independent witness Paras Ram states that the statement was made at 9 a.m. at the Rest House, according to the police it was made at 11 a.m. in the Police Station. The distance between Police Station Kihar and Rest House, Dhaneli is considerably large and therefore this casts a doubt on the disclosure statement Ext.PF. It would be pertinent to mention that knife in question was got recovered the same day i.e. 9.6.1994 itself. According to the police, this knife belonged to the father of the accused and he had got this knife prepared from PW-5 Sh.Kishu who is an Iron Smith. Kishu is also a witness to the recovery of the knife and he identified the said knife to be the one which he had made and handed over to the father of the accused. Kishu belongs to a different village and is not a resident of village Dhaneli. The accused in his so called disclosure statement had not 13 stated that the knife belonged to his father or had been prepared by Kishu. Kishu’s residence is 25 kms. away from village Dhaneli. According to him, he was called by the police to join investigation from village Salooni. How did the police know that Kishu had made the knife which was to be recovered? In fact this witness stated that the police officials had told him that accused Hem Raj would produce a knife which he should identify. This witness also states that it was not the accused who led the police person to the wall where the knife was hidden but it was the police who took the accused to the back of the house of Jamaldin and thereafter accused put his hand in a wall at 3-4 places and then got the knife recovered. This totally demolishes the theory of disclosure of the knife. It is more than apparent that the police had knowledge that a knife was to be recovered and also where it had been placed. Another surprising aspect of the case is that according to Kishu the police had shown him the sheath Ext.P-4 of the knife which was recovered at the spot. If the police had taken the wooden sheath into possession on 29.5.1994 vide Memo Ext.PD, wrapped it in a cloth parcel and sealed with seal-T and thereafter the same 14 was deposited with PW-12 Head Constable on 5.6.1994 how the wooden sheath was available with the Investigating Officer on 9.6.1994 at the time when the disclosure statement was made. Thus, this circumstance has also not been proved by the prosecution. In view of the above discussion, there is no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. August 13, 2010 ( Rajiv Sharma ), J. PV