IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 362 of 1998. Decided on: 14.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Jamal Din alias Jumma. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. M. L. Sharma, Advocate. ---------------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : State has appealed against the judgment dated 29.05.1998 of learned Sessions Court, Hamirpur, whereby respondent Jamal Din, who was charged with and tried for offences, under Sections 460, 302, 457, 380 and 379 read with Section 34 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, which led to the trial of the respondent, may be noticed. Respondent is resident of a village in Kathua District of Jammu and Kashmir. He came to Hamirpur District of this State in search of work for earning his livelihood and started staying in village Bum in District Hamirpur in some rented accommodation. On 22.03.1997, he 1 Whether the reporters of the local papers may be allowed to see the judgment? went to village Nihari, where some other labourers from Jammu and Kashmir had been camping for doing lumbering work in that area. Those persons included Gulam Nabi, Shafi Mohammad (proclaimed offender) and Meer Kasim (now dead). Farman Ali, Mavin Ali and Mohammad Ishaq left village Nihari. On 24.03.1997 when PW Gulam Nabi, respondent Jamal Din and other occupants of the accommodation had taken their meals, respondent left the house saying that he was going to his own place in village Bum. After some time, Shafi Mohammad (proclaimed offender) and Meer Kasim (now dead) also left the house, leaving Gulam Nabi (PW-10) alone in the house. Next morning, the respondent, Shafi Mohmmad and Meer Kasim returned. They brought with them some tools which they had carried and also four butchered hens which had already been un-feathered. Meat of those birds was cooked and all the four ate the same. 3. After some time, Shafi Mohammad and Meer Kasim left the room. Gulam Nabi (PW-10) and the respondent remained there. Gulam Nabi (PW-10) asked the respondent when he had left on the previous day earlier to Shafi Mohammad and Meer Kasim, how was it that he returned with them on that day, in the morning. Respondent told him that when he was waiting for a bus, Shafi Mohammad and Meer Kasim came there and forcibly took him to village Mair, where they made him to sit at some distance from the village. He stated that after about two hours, both of them returned and they told him that they happened to kill one man, and they also brought with them some tools of Carpenter and four butchered hens. 4. On 25th March, 1997, dead body of Man Chand, Watchman of Post Office, Mair was spotted in the Post Office building. Locks of the Post Office were also lying broken. Gian Chand (PW-3) noticed the dead body and informed the Pradhan, who in-turn, called the Police. Inspector Gulab Singh (PW-22) went to the spot. PW-3 Gian Chand, Sub-Post Master made statement, under Section 154 of the Criminal Procedure Code to PW-22 Gulab Singh, Inspector. That statement is Ex.-PD. F.I.R. was recorded on the basis of this statement, which is Ex.-PD/1. Inquest was conducted and the report is on forms Ex.-PS and Ex.-PT. Dead body was sent for post-mortem. PW-1 Dr. R.K. Kanwar conducted the post-mortem and noticed the following two injuries on dead body: “1. There was an ante mortem sharped edged wound 4.5 cm x 2.5 cm x 1.5 cm in size just below the right pinna extending from the right mid-paroted region to the right mastoid bone. The part of the mastoid bone was also cut alongwith the upper part of the sterno cledo mastoid muscle, lobule of the right ear alongwith a skin flap was lying with the inferior edge of the wound. 2. There was an ante-motrem sharp weapon injury 15 cm x 4 cm x 4cm (depth and width variably at places more in the central and anterior part of the wound). On the antero lateral aspect of the neck on right side. The wound was extending from the left anterior side of the neck from a point 2.75 cm from the midline and was extending to the right antero lateral aspect of neck upto the anterior border of the trapezeus muscle.” 5. According to doctor, the death had taken place instantaneously with the infliction of neck injury and the time lag between the death and the post-mortem was within 24 hours. Post-mortem was conducted on 25.03.1997. During the course of investigation, it came to light that workshop of PW-5 Bidhi Chand, where he used to work as Carpenter, had also been broken open on the intervening night of 24/25-03.1997 and several tools had been stolen. It also came to notice that from a Sawmill, a Crowbar had been stolen. It also came to light that some birds had been stolen from the poultry of Bachittar Singh (PW-8) on that very night. 6. Respondent was arrested by the Police. During investigation of the case, Shafi Mohammad could not be arrested despite best efforts. He was declared proclaimed offender. Meer Kasim died soon after the incident. Respondent is alleged to have made a statement, under Section 27 of the Indian Evidence Act, leading to recovery of one Tesa (Adze) Ex.-P1 with stains of human blood and one Randa (plane), Ex.-P-12. 7. On completion of investigation, respondent was challaned. Trial Court charged him with offences, under Sections , 302, 457, 380 and 460 read with Section 34 of the Indian Penal Code, and on his pleading not guilty, tried him for the said offences. Respondent was examined on the conclusion of prosecution evidence. He raised the plea of denial simpliciter. 8. Trial Court held that the case of the prosecution against the present respondent did not stand established beyond reasonable doubt and, consequently, acquitted him. 9. We have heard the learned Additional Advocate General as also the learned counsel for the respondent and gone through the record. 10. Gulam Nabi (PW-10) testified that on 24.03.1997, respondent had left the Dera occupied by him and proclaimed offender Shafi Mohammad and the dead offender Meer Kasim, in the evening and that soon thereafter, Shafi Mohammad and Meer Kasim also went out with an iron bar and screw drivers, which they had placed in a bag, and that next morning, respondent and the abovenamed two occupants of the Dera returned. He stated that when after taking meals, Shafi Mohammad and Meer Kasim went for work and respondent Jamal Din and he remained inside the Dera, he enquired from the respondent as to how he happened to return with Shafi Mohammad and Meer Kasim, when he had left the Dara previous day saying that he was going back to his own Dera in village Bum, upon which respondent told that when he was waiting for a bus at the Bus Stand, Shafi Mohammad and Meer Kasim came there and took him forcibly to village Mair, and made him to wait for them at some distance from the village. When they returned after about two hours, they told him that they happened to kill a man and brought with them four butchered birds. We fail to understand how the statement of this witness connects the respondent with the commission of the crime. 11. Respondent is also sought to be connected with the commission of the crime on the basis of Tesa (Adze), Ex.-P1 and Randa (plane), Ex.-P-12. Even if, we assume that these two instruments of carpentry were recovered at the instance of the respondent and that these tools had been stolen from the workshop of Bidhi Chand (PW-5), on the relevant night, the recovery would in no way connect the respondent with the commission of crime of murder or even the theft, in view of the categorical statement of PW-10 Gulam Nabi that the respondent told him that Shafi Mohammad and Meer Kasim had gone to village Mair, while he had been made to sit and wait for them outside the village at some distance. In view of the abovestated position, we do not think this to be a fit case for interfering with the judgment of acquittal. Consequently, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge May 14, 2010. (bhupender)