IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.272 of 1999 Reserved on: June 3, 2010 Date of Decision : July 9, 2010 State of H.P. …Appellant. Versus: Bhagat Ram …Respondent. 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. Rajesh Mandhotra, Dy. A. G. For the respondent : Mr. S. S. Rathore, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed in the night intervening 3rd and 4th April, 1998, accused was put to trial. In terms of judgment dated 17.2.1999 passed by learned Sessions Judge, Shimla, in Sessions Trial No.39-S/7 of 98, titled as State of H.P. vs. Bhagat Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Dhuri, mother of the accused Bhagat Ram had settled with the deceased Roshan Lal as his wife in village Sethabal (Ratwari). For this reason accused nursed a grouse against Sh. Roshan Lal. In the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 night intervening 3rd and 4th April, 1998, Smt. Dhiru, Sh. Roshan Lal and the accused together consumed liquor in the house of the deceased. In the morning of 4th April, 1998 dead body of Sh. Roshan Lal was spotted in the orchard of one Sh. Ramesh Chand. This place was at a distance of 50 yards from the village. Smt. Sheela Rathore (PW-2) Pradhan of the Panchayat was informed about the same. Upon reaching the spot she found several persons present there. Sh. Bhawani Dutt (PW-1) asked her to report the matter to the police. Accordingly both she & PW-1 proceeded to the Police Station at Chopal. On their way they met SHO Bidhi Singh (PW-6) with whom report (Ext.PA) was lodged. On the basis of the same, FIR No. 35/98 dated 4.4.1998 under Section 302 IPC (Ext.PJ) was registered with Police Station, Chopal. PW-6 himself visited the spot along with PW-1 & PW-2 and conducted the investigation. Inquest report (Ext.PB) was prepared and the blood stained earth at the place where the dead body was lying was taken into possession vide memo Ext.PC. The accused was arrested at the spot and during interrogation he made statement (Ext.PD) to the effect that he had hidden an Adze (weapon of offence) in the field of Sh. Ramesh Chauhan and could get the same recovered. On the basis of the said statement Adze (Ext.P1) was recovered from the spot and taken into possession vide recovery memo (Ext.PE). The same was sealed with seal ‘A’. At the time of arrest the accused was wearing shirt (Ext.P-3) and pant (Ext.P-2) which was stained with blood. The 3 same was also taken into possession vide memo Ext.PM and marked with seal ‘X’. The clothes worn by the deceased were also taken into possession and sealed. With the completion of the investigation at the spot the dead body was sent for post mortem which was conducted by Dr. S. P. Singh (PW-7). Blood stained clothes and the adze were sent for chemical examination and the report (Ext.PN) of the Chemical Examiner was also obtained. 3. With the completion of the investigation, challan was presented in the Court for trial and the accused was charged for having committed an offence punishable under Section 302 IPC, to which he did not plead guilty and claimed trial. In order to prove its case prosecution examined 9 witnesses. Statement of the accused under Section 313 Cr.PC was also recorded. 4. The learned Sessions Judge acquitted the accused of the charged offence. Hence, the present appeal. 5. It is not in dispute that there is no eye witness to the occurrence of the incident. Therefore, the case of the prosecution primarily based on the circumstantial evidence. The learned Sessions Judge has culled out the following circumstances connecting the accused to the crime in question: “i) The accused bore a grudge against the deceased because the latter had kept former’s mother as his wife/keep. ii) The accused produced blood stained shirt and pant at the time of his arrest and the stains were of human blood of the same group as that of the blood of the deceased. 4 iii) The accused made disclosure statement leading to the discovery of weapon of offence. iv) Accused confessed to the Pardhan of Panchayat , Sheela Rathroe in the presence of a number of persons that he had committed the crime.” 6. In order to prove the aforesaid circumstances the prosecution has examined Sh. Bhawani Dutt (PW-1) brother of the deceased; Smt. Sheela Rathroe (PW-2) Pradhan of Gram Panchayat, Shilothi; Sh. Kirpa Ram (PW-3) Patwari Halqua Nerwa; Sh. Kuldip Kumar Constable (PW-4); Sh. Nek Ram ASI (PW-5); SHO Bidhi Singh (PW-6) who carried out the investigation; Dr. S. P. Singh (PW-7) who carried out the post mortem; Sh. Ravinder Singh (PW-8) who took the photographs at the site and HC Rajinder Singh (PW-9) who received sealed parcels. 7. From the post mortem report (Ext.PO) and the statement of PW-7, there is no doubt that the deceased had died due to “head injury leading to intracranial hemorrhage with shock”. 8. For proving the circumstances against the accused, statements of PW-1, PW-2 & PW-6 are relevant and material. PW-6 carried out the investigation at site. There is no credible evidence to prove the fact that the accused was harboring any ill- will or grouse against the deceased for the reason that he had married his mother. There is also no iota of evidence to prove the fact that the accused, the deceased and Smt. Dhuri had together consumed liquor in the night intervening 3rd and 4th April, 1998. 5 9. The Investigating Officer to say the least has carried out the investigation in a most casual and perfunctory manner. It has come in the statement of PW-2 that at the place where the dead body was found there were houses. The Investigating Officer did not make any inquiries from the neighbours or occupants of one of the houses to ascertain the truth. So much so he did not even bother to examine Smt. Dhuri. Allegedly she was drunk when the Investigating Officer was at the site but could have been examined later on. She was one person who could have thrown some light on the crime in question. 10. PW-1 admits that at the time when he reached the village and saw the dead body of his brother, S/Shri Chhaju Ram, Varinder Chauhan, Mangat Ram, Gita Ram, Joginder and several other persons were already present there. Surprisingly the prosecution has not examined Sh. Varinder Chauhan, who is an Advocate by profession and Sh. Dhiraj Singh, in whose presence the dead body was found. No explanation is forthcoming for the same. They could have also elicited some truth. 11. Now this witness admits that deceased Roshan Lal had been separated from the family for the reason that he had married Smt. Dhuri who was a woman of lower caste. He also admits that they were not on speaking terms with his brother. He does not know what sort of relationship the accused was enjoying with the deceased. He further admits that his statement was recorded at the spot by the Dy. S.P. and the SHO. Why this Dy.SP 6 had not been examined has not been explained by the prosecution. He admits that adjoining to the place where the dead body was found there were two houses. One is owned by Sh. Ramesh and occupied by his Chowkidar and the other one by Sh. Gorkhia. He also admits that the police did not search the said houses. Now why the occupants of the houses were not examined has not been explained by the prosecution. In any event his statement does not advance the case of the prosecution. 12. The star witness of the prosecution is PW-2 who did not support the prosecution and was cross-examined by the Public Prosecutor. No doubt she is holding a public office and can be said to be a witness with same credibility but her statement cannot be said to be convincing and reliable. In our view her statement is shaky and unconvincing. She is not a spot witness. She visited the spot only after she was informed about the death of the deceased. She admits not to have called the accused or questioned him. She admits not to have held any talk with him. She did not suspect the accused of having committed the offence. She does not mention having noticed the accused wearing the blood stained clothes at the time when she visited the spot. 13. According to the prosecution the accused was arrested only after the police had arrived at the spot. The dead body was found in the early hours of 4th April, 1998. PW-2 reached the spot only at about 9.00/9.30 a.m. Thereafter both PW-1 & PW-2 went to lodge the report with the police. Police reached the spot only at 7 about 2.30 P.M. Undisputedly local residents had also gathered at the spot. Except for the Investigating Officer none saw the accused wearing the blood stained clothes. It is highly unbelievable that the accused would have continued to wear the blood stained clothes after having committed the crime himself. 14. Further PW-2 has contradicted herself. Whereas initially she had stated that after the report was lodged with the police she went back to her residence and the police did not conduct any proceedings in her presence but later on she took a summersault and stated that when the police was conducting the proceedings at the spot she went to a house in the village to have tea and returned after a short interval. Importantly, she admits that she signed some of the papers only on her return from the village. The recovery of the weapon of offence (Ext.P-1) as also the alleged statement made by the accused (Ext.PD) is witnessed by her. If the entire proceedings were not conducted in her presence then obviously not much credence can be given to the said fact. Undisputedly, the other witnesses to the recovery memos have not been examined by the prosecution. 15. In any case mere recovery of the alleged weapon of offence allegedly at the instance of the accused does not prove him to be a murderer. It has been so held by the Hon’ble Supreme Court in Deva v. State of Rajasthan AIR 1999 SC 214 that proof of sole circumstance of recovery of weapon of offence 8 pursuant to disclosure statement of the accused does not prove the charge of murder against him. 16. Statement of PW-6 who carried out the investigation and who recovered the weapon of offence also does not inspire confidence. According to him no statement was recorded by the Dy. SP which fact stands contradicted by PW-1. 17. It has come on record that the deceased and Smt. Dhuri had been living together for about 7 to 8 years. There is no documentary or any other evidence to prove the fact that the accused was harboring any grouse against the deceased. 18. Even from the Chemical Examiner’s reports (Ext.PN and Ext.PO) the accused cannot be linked with the alleged crime. The clothes of the deceased were not produced in the Court. Two parcels sent to the Chemical Examiner contained seal ‘X’ which is contrary to the case set up by the prosecution. That apart the clothes (Ext.P-2 & Ext.P-3) belonging to the accused have not been connected with the report of the Chemical Examiner. Blood allegedly found on the clothes of the accused, the deceased and the weapon of offence was not matched. 19. The law on circumstantial evidence is well settled. To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however, grave, 9 cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172)]. 20. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. [Trimukh Maroti Kiran vs. State of Maharashtra, (2006) 10 SCC 681.] 20. In the instant case no such proven fact emerges from the record. 21. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is 10 called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 9, 2010. (rana)