IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 329 of 2002 Date of Decision : October 14 , 2011 State of Himachal Pradesh Appellant Versus Tilak Singh 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, Deputy Advocate General for the appellant-State. For the respondent : Mr. Virender Singh Rathaur, Advocate, for the respondent/accused. Justice Sanjay Karol, J (Oral) For an offence, which is alleged to have been committed during the intervening night of 24th and 25th December, 2000, accused was put to trial. In terms of judgment dated 31.12.2001 passed by the learned Sessions Judge, Kangra at Dharmshala, H.P., in Sessions Case No. 11- J/VII/2001, titled as State versus Tilak Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 25.12.2000 Sh. Bhim Singh (PW-1) along with Sh. Jhandu Ram (PW-5) and Sh. Rattan Chand (PW-11) went to Police Station, Jawali. There Whether reports of Local Papers may be allowed to see the judgment? 2 PW-1 lodged a complaint (Ext. PC) at about 1.30 p.m. As per the complaint, Sh. Karnail Singh s/o Sh. Sameet Singh of village Chanial, informed him that in the machine (chakki i.e. flour mill) owned by Sh. Karnail Singh there is a dead body of a male person. As such Sh. Karnail Singh got the door of the chakki locked. Further dead body was not seen either by the villagers nor by PW-1 though he had made arrangements for the residents of the village to remain present at the chakki. 3. Acting on the complaint police commenced investigation. SI-Daya Nand Sharma (PW-13) who was posted as S.H.O. Police Station Jawali along with PW-1, PW-5 and PW- 11 and police party comprising of HC-Kuldip Singh, Constables- Mahinder Singh, Roshan Lal and Surjit Singh and Home Guard- Prem Lal proceeded to the spot. There they found many persons present. Sh. Karnail Singh owner of the chakki opened the lock and a dead body without any clothes was found lying on the floor inside the chakki. Blood was splattered all over. PW-11 identified the naked body to be that of his nephew Karnail Singh. (At this stage it may be mentioned that name of the deceased and the father of the accused is same i.e. Karnail Singh.) Statement (Ext. PO) of PW-11 was recorded on the spot and sent to police station on the basis of which F.I.R. No. 208 of 2000 (Ext. PP), dated 25.12.2000 was registered at Police 3 Station, Jawali. Inquest report (Ext. PD) was prepared and dead body sent for post mortem which was conducted by Dr. P. K. Ahluwalia (PW-6) and report (Ext. PL) obtained by the police. Photographs taken on the spot by Sh. Swaran Singh (PW-7) were taken on record. Investigation revealed that accused Tilak Singh was involved in the alleged crime. He was arrested on 27.12.2000. On 29.12.2000 accused made a disclosure statement (Ext. PG) in the presence of PW-5 and PW-11 that he had concealed blood stained clothes and the hammer with which he had murdered the deceased and could get the same recovered. These articles were recovered and taken into possession by the police. With the completion of investigation challan was presented in the Court for trial. 4. The accused was charged for having committed an offence punishable under Section 302 of the Indian Penal Code to which he did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined thirteen witnesses and the statement of the accused under Section 313 Cr.P.C. was also recorded in which he pleaded false implication. In defence he examined two witnesses. 6. The Court below acquitted the accused of the charged offence. Hence the present appeal. 4 7. That the dead body was identified to be that of Sh. Karnail Singh who died of injuries is not in dispute. In any event it stands established from the post mortem report (Ext. PL) and testimonies of Dr. P. K. Ahluwalia (PW-6) and Sh. Rattan Chand (PW-11). 8. Admittedly there is no eye-witness to the alleged incident. Prosecution case primarily rests upon circumstantial evidence. 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, 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]. 9. 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 5 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 versus State of Maharashtra, (2006) 10 SCC 681] 10. Significantly chakki is owned by Sh. Karnail Singh, father of the accused and not the accused himself. Complaint (Ext. PC) records that this Karnail Singh had informed Sh. Bhim Singh (PW-1) about the dead body lying inside his chakki and that he had locked the door of the same. Why was Sh. Karnail Singh not examined in court has not been explained. It is not the case of the prosecution that this Karnail Singh was either an accomplice or an accused. It has also not come on record, through the statement of any of the witnesses, that chakki in fact was being exclusively run by the accused. 11. According to the prosecution there are two circumstances which link the accused to the alleged crime: (i) the deceased and the accused were last seen together; and (ii) presence of the accused at the place of crime. 12. With regard to the theory of last seen, prosecution has sought reliance upon the testimony of Sh. Hans Raj (PW- 6 3). By no stretch of imagination his testimony establishes this fact. This witness simply states that in the “last winter season” in the month of ‘Magher’ he had gone to attend a ‘bhandara’ in village Palhad where in the shop of Sh. Budhia Ram he had seen the accused alongwith “one more boy from Bharmour” whose name however he was not aware of. Now Sh. Budhia Ram has not been examined in Court. That apart, PW-3 admits that many ‘gaddi’ boys come from the area to purchase articles from the shop of Sh. Budhia Ram. Even at that time there were many other ‘gaddi’ boys who were present and purchased articles from the shop of Budhia Ram. Though he mentions the time to be 6.30 p.m. Significantly he does not even give the date as to when he had seen the deceased and the accused together. His statement with regard to date is absolutely vague. Also where was the ‘bhandara’ has not been proved. Further he only states that he had heard “the boy had been murdered”. He admits that he “did not see the dead body of the person”. Now his statement does not establish the identity of the boy seen by him with the accused to be that of the deceased. Assuming that the accused and the deceased were present in the shop of Sh. Budhia Ram at about 6.30 p.m., the previous evening even then this fact alone would still not prove complicity of the accused to the alleged crime. Dead body was first discovered in 7 the morning of 25.12.2000 at about 9.00 a.m. by PW-2. Now what transpired between the evening (6.00 p.m.) of 24.12.2000 and morning (9.00 a.m.) of 25.12.2000 has not been explained by the prosecution. Where all and with whom did the accused or the gaddi boy go from the shop of Sh. Budhia Ram has not been explained. 13. Sh. Kewal Singh (PW-2) states that on 25.12.2000 at about 9.00 a.m. he was present on the road near the chakki. He was waiting for the bus. He was taking a bag of earth to the house of his maternal aunt who resides in village Kharota. At that time accused came to him. He shook hands with him and handed over one key and asked him to open the lock of the door of the chakki. When he opened the lock and the door of chakki he found a dead body of a naked boy lying inside. Blood was splattered all over. He got frightened and ran towards the accused and inquired from him about the same. However, accused told him to run away. Accused also ran away from the spot. Thereafter by carrying the bag he left for his home. However on way he met his mother Smt. Dhano Devi and maternal aunt Smt. Kanta Devi. He handed over the bag to them and proceeded to his village i.e. Chaniyar where he informed the residents about the dead body lying inside the chakki. Having closely scrutinized his statement, in our 8 considered view, he cannot to said to be truthful witness. His testimony does not inspire confidence either. To begin with he admits in his cross examination that he did not disclose it to his mother and aunt what transpired between him and the accused and also that he had seen a body lying inside the chakki. This is unbelievable. Why should he have not disclosed this fact is not clear. It is a very un-natural behaviour of a person not to disclose the same unless he himself had something else to hide. It is not his case that he was in a state of shock. After all he had walked for some distance carrying a bag of mud which he entrusted to his mother and aunt. Why would the accused hand over the key and ask him to open the door of the chakki if the accused had himself murdered the deceased. Chakki was not owned or run by him. Also this witness was not his friend or business partner. He also had no business with the chakki that day. Further, he admits that he had informed about the incident to one Sh. Shiv Dutt, who is his real uncle. Now neither Sh. Shiv Dutt nor Smt. Dhano Devi or Smt. Kanta Devi have been examined in Court to corroborate his version. It appears that this witness had no occasion to be present at the spot. He appears to have been introduced as a witness. He admits that on the said date he had no connection or work with the Chakki. He admits that chakki is at a distance of 250 yards from the 9 ‘abadi’ where many people come to graze their sheep. He further admits that he did not disclose it to anyone that he had informed Sh. Shiv Dutt about the incident. Further during investigation police has recovered only one lock and key. If the version of this witness is to be believed then police ought to have recovered two set of locks and keys as according to Sh. Bhim Singh (PW-1) the door was locked by Sh. Karnail Singh. Thus even the second circumstance cannot be said to be proved. 14. We further find that two independent witnesses i.e. PW-1 and PW-5 have been declared hostile and in spite of cross examination nothing fruitful could be elicited from their testimony to clearly establish the guilt of the accused with respect to the alleged crime. The disclosure statement and recovery of weapon of offence cannot be said to be thus proved. 15. According to the prosecution version dead body was identified to be that of deceased only after police reached at the spot. Sh. Rattan Chand (PW-11) identified the same. Now this story stands contradicted. In any event it does not inspire confidence for the simple reason that according to Sh. Bhim Singh (PW-1), PW-11 was already present at the spot before Pradhan-Jhandu Ram (PW-5) could arrive. Now if PW-11 10 had not identified the dead body to be that of his nephew he had no occasion to accompany Sh. Bhim Singh (PW-1) to the police station to lodge the complaint. On this point Sh. Jhandu Ram (PW-5) has in no uncertain terms deposed that Sh. Rattan Chand had accompanied them to the police station as by that time it was known that the deceased was his nephew. 16. We also find that the other independent prosecution witness i.e. Sh. Rattan Chand (PW-11) has not come out with the whole truth. He does not explain as to what prompted him to accompany Sh. Bhim Singh and Jhandu Ram to the police station to lodge the complaint. He admits that he remained at the Chakki for about half an hour before they proceeded to the police station. Now it is unbelievable that persons present at the spot would not have seen the dead body and particularly PW-11 when, according to him, deceased had told him that he was going towards the atta-chakki. That apart, it has come in the uncontroverted testimony of PW-5 that there was a hole in the wall of the chakki from where any person could easily go in or come out. Now if this were so then any one of the persons present at the spot, in broad day light, could have easily peeped in and identified the body. 17. Also any one could have murdered the deceased by entering through the hole. It has also come on record through 11 the statements of PW-1, PW-2, PW-3, PW-5 and PW-11 that many shepherds visit that place. It is not the case of the prosecution that none else could have access to the place of the incident. Probability of anyone else involved in the alleged crime has not been ruled out. Admittedly there were many persons present on the spot even before the arrival of PW-1, PW-2, PW-5 or PW-11. As already noticed hereinabove there are inherent contradictions in the prosecution story and the version given by the prosecution witnesses. It does not inspire confidence at all. 18. Complaint (Ext. PC) was recorded by the police at police station Jawali at 1.30 p.m. on 25.12.2000. At that time police was fully aware of the fact that murder had taken place in the village. Yet no F.I.R. was recorded immediately. Police first went to the spot, got statement of PW-11 recorded and then got a formal F.I.R. registered, same day at about 6.00 p.m. This delay has not been explained. Possibility of due deliberation on the part of the complainant in getting the F.I.R. lodged thus cannot be ruled out. 19. Significantly in the instant case there is also no element of motive for the accused to have murdered the deceased. 20. Further, we find that memo of arrest of the accused has not been placed on record by the police. What was the 12 apprehension or the basis on which the accused was arrested has not been established. When was the statement of PW-2 recorded, linking the accused to the crime, is also not clearly proved on record. The investigation to say the least has been carried out in a very shoddy manner. 21. From the record it cannot be said that prosecution has been able to prove the guilt of the accused to the alleged crime by leading clear, cogent, reliable piece of evidence. 22. 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 versus 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 accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. October 14 , 2011 (PK)