HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 698 of 1996 Decided on: 27.5.2010 State of Himachal Pradesh ……… Appellant. Versus Rajinder Singh @ Raju ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajinder Dogra, Additional Advocate General, & Mr.Vikas Rathore, Deputy Advocate General. For the respondent: Mr.Vinay Thakur, Advocate. Per V.K. Ahuja, J.(Oral): This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Additional Sessions Judge, Shimla, H.P., dated 6.2.1996, vide which the respondent was acquitted of the charge framed against him under Sections 302 and 392 of the Indian Penal Code. 2. Brief facts of the case are that PW-1 Shiv Ram, brother of deceased Mangat Ram, lodged a report with the police on 14.2.1994 that he had been informed by Jeet Ram, his cousin, that the body of his brother Mangat Ram was lying at Bakharya-Dhar in the middle of the road. He went to the ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - spot, identified the dead body and thereafter lodged the report with the police. On this, a case was registered and during investigation the respondent was arrested and the police made recoveries of thread balls and his clothes at his instance and after investigation filed the challan before the court of learned Judicial Magistrate Ist Class, Court No.IV, Shimla, who committed the case to the court of the learned Sessions Judge, from where the case was assigned to the learned trial Court, who tried the respondent, as detailed above, leading to his acquittal. 3. We have heard the learned Additional Advocate General for the State and the learned counsel for the respondent and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, which consists of the statements of 14 witnesses, it is clear that there is no direct evidence led as against the respondent proving his involvement in the commission of the offence. The prosecution has relied upon the recovery of thread balls. The case of the prosecution is that PW-3 Kuldip Kumar had sold thread balls to the deceased, which were thereafter recovered at the instance of the respondent. PW-3 Kuldip Kumar, when appeared in the witness box, stated that he had sold the household articles to the deceased including electricity wire, DCM thread and 15 thread rolls of different colours. This is in all the statement made by PW-3 Kuldip Kumar. He had not identified the thread balls recovered at the instance of the respondent to be the same which were sold by him on that day to the deceased - 3 - Mangat Ram. There were no identification marks on the thread balls recovered at the instance of the respondent. 5. PW-14 Parkash Chand was examined to prove that the respondent had tried to sell the thread balls to him to make some money. However, the said Parkash Chand PW-14, when appeared in the witness box, did not support the prosecution case and stated that he had not seen anything in possession of the respondent, meaning thereby that no attempt was made by the respondent to sell the thread balls to him to make some money. 6. The recovery of the thread balls has been sought to be proved from the statement of PW-15 SHO Ravinder Singh, who is the Investigating Officer in the present case. He stated that he arrested the accused on 19.2.1994 and recorded his statement under Section 27 of the Evidence Act, which is Ext.PG. In the said statement, the accused disclosed to him that he had kept his pants and coat in the house of his sister and the box of thread has been kept by him at the back of the shop of Guddu Lala in the bushes and he can get the same recovered. PW-15 SHO Ravinder Kumar further sated that the said disclosure statement was made in the presence of Khem Chand and Dev Raj. 7. The said Khem Chand has been examined as PW-2. He does not state that any disclosure statement was made by the accused in his presence. 8. PW-10 Dev Raj, who is also a witness to the disclosure statement made by the respondent, has stated that the accused disclosed in his presence that he had kept his - 4 - pants and coat in the house of his sister. He further stated that the accused disclosed in his presence that the bundle of threads was thrown by him at Fagu, at the back side of the shop of Guddu Lala in the bushes. He further stated that the said disclosure statement made by the accused is Ext.PG, which bears his signatures. He further stated that the accused thereafter got the thread balls recovered which were lying in the bushes behind the shop of Guddu, which were taken in possession vide memo Ext.PH. The recovery of the thread balls, allegedly at the instance of the respondent, does not prove that these thread balls are the same which were sold by PW-3 Kuldip Kumar to the deceased Mangat Ram. Therefore, it cannot be linked with the accused to hold as circumstantial evidence as against the accused. 9. The other part of the recovery is that the blood stained coat and pants of the accused were got recovered in pursuance of the disclosure statement Ext.PG, proved in evidence, as above. The report of the Chemical Examiner Ext.PX shows that human blood was found on these clothes, but there is nothing to link the same with the deceased or the accused since there is no report of the expert that the blood present on the clothes of the respondent had tallied with the blood of the deceased or that of the accused. The mere presence of the blood on the clothes, allegedly recovered at the instance of the respondent, is not a reliable circumstance so as to connect the same with the respondent. 10. The next circumstance relied upon by the prosecution is that hair were recovered from the hand of the - 5 - deceased. PW-1 Shiv Ram has stated that the hair were found in the fist of the deceased, which were taken in possession by the police. The said hair had not been sent by the police for comparison with the hair of the accused. The only hair sent for comparison was that recovered from the fist of the deceased and the hair allegedly recovered on the coat and pants of the deceased. In the absence of the report of the Chemical Examiner that the hair in the hand of the deceased were that of the accused, this circumstance cannot be used as against the respondent. 11. It is also in evidence that in the first report lodged with the police, PW-1 Shiv Ram had expressed his doubt on some other persons. In his report lodged with the police, which is Ext.PA, PW-1 Shiv Ram has expressed his doubt about three persons, named by him, who were having inimical relations, but there was no allegations or ill-will as against the respondent expressed in the report lodged with the police. The respondent was only apprehended on suspicion and the above recoveries were effected, but these are not sufficient to prove the charge as against the respondent. 12. Therefore, the net result drawn by the learned trial Court, on the basis of the evidence, holding that the prosecution had failed to prove their case beyond any reasonable doubt, cannot be termed as perverse calling for an interference by this Court. 13. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which - 6 - is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (R.B. Misra), Judge. May 27, 2010. (V.K. Ahuja), (TILAK) Judge