IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 289 of 2006. Decided on: 9.10.2009 _______________________________________________________ Desh Raj alias Deshu ….Appellant. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh,J Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. Ramesh Thakur, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral) The appellant has challenged the judgment of his conviction and sentence passed by the learned trial court on 29th December, 2004, under Section 302 and 201 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.75,000/-, in default of payment fine, further to undergo simple imprisonment for five years for the offence of murder of his cousin Ramesh Chand and imprisonment for two years and pay fine of Rs.25,000/-, in default to further undergo simple imprisonment for one year allegedly for destroying the evidence by washing his own blood stained clothes. Both the sentences were ordered to run concurrently. Succinctly, the facts which emerge from the prosecution evidence can be stated thus. Ramesh Chand (deceased) was Whether reporters of the Local papers are allowed to see the judgment? - 2 - living with his father PW-9 Shakti Chand and his brother PW-7 Sandesh Kumar, in village Kut Ghughuri, Tehsil Dehra, whereas his another brother PW-2 Kartar Chand was living separately in nearby village Phaker. He was running Katha Bhati where the deceased was also working. Ramesh Chand (deceased), used to bring milk from his house, daily in the morning, to Katha Bhati. Appellant, the cousin of the deceased was a regular visitor in the house of the deceased, which at times was objected to by the deceased, as he entertained some suspicion. On 7th February, 2003, Smt. Kaki Devi (PW-8), wife of the deceased, had gone to purchase clothes to a local market at Nadaun. On the way, she met appellant at a place known as “Dehrian”. Both of them went to the market and purchased clothes for their children and in the evening returned to house alongwith the appellant. At about 9.30 p.m., when Ramesh Chand returned to his house and came to know that appellant was accompanying his wife to the market. He took it as exception and picked up the quarrel with her. He gave her 2-3 slaps and appellant felt annoyed and left their house. Again on 10th February, 2003 Ramesh Chand picked up the quarrel with his wife. Her parents-in-law and Sandesh Kumar (PW7) intervened and warned him not to quarrel and beat his wife, under the influence of liquor and told him that if he would not mend his ways, they would separate him from their family. On the same day, during the night PW-7 Sandesh Kumar came out to urinate. He noticed the appellant standing outside the house of the deceased. He asked the reason about his presence during the odd hours at night. On this appellant told him that he was wrongly given beatings by the deceased and would teach him a lesson. - 3 - On 13th February, 2003, Ramesh Chand left his house to the place of his work and as usual carried a container of Milk with him. After providing the milk at Katha Bhatti he left the empty container in the house of his brother PW2 Kartar Chand, but after the work he did not return to his home in the evening. The parents of the appellant had organized, “Satya Narayan Katha” in their house, in the same evening. The appellant reached his house around 9.30 p.m. and asked his mother about his clothes. After changing his clothes, he attended the religious discourse. Smt. Kaki Devi, wife of the deceased and her mother-in- law were also present during “Satyanarayan Katha” in the house of the appellant which was being performed by PW3, Raj Kumar their Purohit. On 14th February, 2003 Ramesh did not return to the work at Katha Bhatti nor brought the milk. PW-2 Kartar Chand sent Sanjeev Kumar a labourer to his house to know the reason. But on enquiry he informed him that even Ramesh Chand did not return to his home last night. Thus Kartar Chand started searching for him at various places. On 17th February, 2003 , the father of deceased informed Kartar Chand that the dead body of Ramesh Chand was located by Pinku Jallah while grazing his sheep in the jungle nearby which was brought to the village by said Pinku with the assistance of the appellant. Kartar Chand went to his village and saw the dead body of Ramesh Chand, lying in the room of his father. He noticed various injuries on the head and other parts of the body to which appellant told that it could be because of the leopard attack. The complainant party informed PW6 Tripta Devi Pradhan Gram Panchayat she thereupon informed police telephonically. - 4 - Inspector SHO Jagdish Chand (PW18) visited the spot and recorded the statement of PW2 Kartar Chand under section 154 of the Code of Criminal Procedure and sent a rukka for the registration of case. The dead body was sent for the autopsy, which was conducted by PW-1 Dr. D.P. Swami. The doctor noticed the following anti-mortem and post- mortem injuries:- Anti-mortem injuries: “1. Lacerated wound on right side of temporal parietal region, 8x1 inch x ½ inch. with Oblique irregular. Margins reddish. 2. Multiple grazed and scratch grazed abrasion on the chest and back reddish. 3. Multiple graze abrasions number 3 to 5 on right side of face, eye teeth 1x1 inch reddish. 4. Number grazed abrasion, each in front of each knee ½ inch x ½ inch.” Post Mortem injuries: “1. Multiple bruises and abrasions as grazed and scratches seen on front and back of chest, upper half of chest and all back involved. 2. Multiple grazed five abrasions on both upper exermitias.” Cranium and spinal cord. Multiple fractures, fisserd and depressed No.6 pieces of right side fronto parieto temporal occipital region. Lacerated wound on right side temporal occipital, lobe of brain 3x1 inch. Extra dural haemorrahage 3x1 inch area reddish in right temporal region and parietal region. Evidence of anti mortem blood in right ear present.” On further examination of the internal parts of the body the doctor noticed following injuries Thorax ; 1. Walls ribs and cartilages - 5 - There was a fracture of both sides 4th to 9th ribs at mid auxiliary region. Pleurae ; was found Congested and ruptured on its right side. Larynx and trachea and trachea; right lung was Congested. But the Left lung found lacerated on rt. Mid and lower lobe having3x1 inch cut with 300 CC blood blackish in cavity. . Mouth larynx and contents; Post mortem eaten/ gnawn by small animals on left side of face and left neck and front mid neck pale area, no blood mark of small teeth present. Stomach and its contents : 150 cc. semi digested food with small amount of alcohal present. Walls normal. Large intestine and their contents; Full of gases and faecal matter. Liver, spleen, kidney bladder; 10 cc urine smell of alcohal positive. Walls normal.” The viscera was sent for the forensic examination and on the receipt of the report doctor gave the cause of death that “the deceased had died due to combined effect or neurogenic shock due to anti-mortem head injuries, asphyxia due left side chest injuries and asphyxia due to consumption of alcohol and organ phosphorous poison.” The time which elapsed between injuries and death was 1-2 minutes and between death and post mortem was 2 to 5 days. Post-mortem report is Ex.PW-1/A. During the investigation police recorded the statements of witnesses. There was no eye witness of the occurrence and police could only get the circumstantial evidence of last seen as stated by PW-5 Pawan Kumar having taken liquor together in the company of the deceased and the appellant in the tea-stall of PW-4 Subhash Chand from where the deceased and the appellant left together at 6 p.m. to their village and around 7.30 p.m. while answering the call of - 6 - nature in the nallah they met PW-3 Raj Kumar, who was on his way to the house of the appellant to perform Pooja and Satya Narayan Katha (religious discourse). Further the conduct of the appellant was found to be suspicious as he changed his clothes before attending katha in his house on the same day at 9.30 p.m. and later washed his clothes to which he was wearing when he was last seen in the company of the deceased. The appellant was having a motive to commit the crime as he was given slaps by the deceased in his house for accompanying his wife to the market and thereafter seen outside the house of the deceased by PW-7 during the night on 10th February, 2003. The police arrested the appellant. He made the disclosure statement, pursuant to which he got recovered one Khund of bamboo, pair of shoes, and one broken bottle containing some insecticide. The appellant was put on trial. He denied the charges. The prosecution led its evidence. The appellant denied the circumstances which were found attendant upon him. However, he did not lead any evidence in defence when called upon to do so. The learned trial court relied upon the above circumstances, therefore, at the end of trial the appellant was convicted and sentenced as aforesaid. We have heard learned counsel for the parties and carefully reappraised the evidence on record. On the scrutiny of the evidence we do not find that the above circumstances are either proved in accordance with law or are of worth inspiring confidence and of a conclusive nature and tendency pointing towards the guilt of the appellant. To come to the above conclusion, we have the following reasons:- - 7 - The first circumstance on which the prosecution relies is last seen. Although PW-5 Pawan Kumar stated that he joined the deceased and the appellant to take liquor in the tea-stall of PW-4 Subhash Chand from where the deceased and the appellant left together at about 6.00 pm on 13th February, 2003, but thereafter they met PW-3 Raj Kumar at about 7.30 p.m. on his way to the house of the appellant, while they were answering the call of nature and prosecution alleged that he was not seen alone. Thereafter, his dead body was found in the Jungle on 17th February, 2003, as stated above. But during the trial PW-8 Kaki Devi the wife of the deceased categorically stated that her Jathani Neelma wife of PW-2 Kartar Chand (not examined) informed her that her husband had reached home at 8.00 pm on 13th February, 2003 after dropping the milk container in her house. Thus, the theory of last seen gets vanished. Therefore, this circumstance stands not proved. The next circumstance relied upon by the prosecution is the conduct of the appellant. The appellant was seen outside the house of the deceased during the night by PW7 Sandesh Kumar, the brother of the deceased, when he had come to urinate and the appellant allegedly told him that he would teach a lesson to the deceased for having been wrongly beaten by the deceased. But there is no iota of evidence that the deceased had ever been given beatings to him. Further, the testimony of PW-7 Sandesh Kumar could not be relied upon as he did not disclose this fact to any body either in the village or even to his family members. According to him, next morning he left with his truck to attend his job. The conduct of this witness is unnatural. Had this - 8 - fact been true he would have disclosed it at least to the members of his family. Therefore, no reliance can be put on his testimony. Further the evidence has been put forth with respect to the changing of the clothes by the deceased before attending the religious discourse in our opinion which is also of no consequence. There is no evidence on record to show that the appellant was wearing the clothes alleged to have been recovered by him when he was in the company of the deceased. According to PW-3 Raj Kumar Kurta and pajama are generally put on to sit at ease during the religious discourse by the persons who organized Katha. Thus changing of the clothes after returning from the place of work by the person is a normal practice. Thus nothing adverse can be seen in it. The next circumstance is the alleged recoveries. PW-1 Dr. D.P. Swami has broadly expressed his opinion about the injuries having been caused by the Danda (Bans Ka Dhund) Ex.P-1 and also by dragging, but there is nothing on record to substantiate this fact. No evidence has been led that the appellant was having the said weapon with him. Ex.P.1 was also sent for the forensic examination. It was not found to have blood stains of the deceased. Thus it could not be connected with the appellant in any manner. Further the recovery of piece of broken bottle of XXX Rum alleged to have contained traces of organo phosphorous is also of no consequence. The forensic examination of the viscera of the deceased does not reveal, if the contents of the said poison were found therein. The doctor (PW-1) wrongly mentioned and stated in the court that the said insecticide was also responsible for the - 9 - death of Ramesh Chand. Therefore, the said recovery is of no consequence to bring home of the guilt of the appellant of the offences charged. The above circumstances apart, we have noticed that the deceased was heavily drunk as the quantity of alcohol found in his urine and blood was quite high which could cause moderate damage to the vital organs. According to the doctor, there was also a possibility that death might have occurred either on 15th or 16th; if that being so, the entire prosecution story to implicate appellant, shrouds with grave suspicion and is completely shattered. Thus, on the reappraisal of the evidence on record we are unable to concur with the findings of guilty arrived at by the learned trial court. For the reasons aforesaid; the impugned judgment of conviction and sentence passed by the learned trial court is set aside, the appeal is accordingly allowed. Consequently, the appellant is acquitted. The fine amount, if any deposited be refunded to the appellant. The appellant be released forthwith, if not required in any other case. The release warrants be issued by the Registry of this Court in conformity with this judgment. (Surjit Singh), J. October 9, 2009. (Surinder Singh), J. (rc)