HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 367 of 1992 Reserved on: 9.4.2009 Decided on: 18.4.2009 State of Himachal Pradesh ……… Appellant. Versus Chandu Ram and others ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.R.M. Bisht, Mr.Rajesh Mandhotra, Deputy Advocate Generals and Mr.Ramesh Thakur, Assistant Advocate General. For respondents No.1 and 4: Mr.K.B. Khajuria, Advocate. For respondent No.2: Mr.C.N. Singh, Advocate. Per V.K. Ahuja, J.: 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 Sessions Judge, Chamba, dated 31.3.1992, vide which the respondents were acquitted of the charge framed against them under Sections 302/380 read with Section 34 of the IPC. The prosecution story in brief is that Parma, aged about 65 years, and his wife Jhabbo, aged about 55 years, were found lying dead at their house situated in Village Larori, Police Station Tissa, District Chamba, in the morning of 12.7.1988. The police set in motion on a report lodged with them by PW-3 ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. Kandhari, informing the police about the death of these persons on the same day. The information supplied by Kandhari was recorded at Police Station Tissa in the Daily Rojnamcha, dated 12.7.1988, the copy of which is Ext.PW-9/A. Thereafter PW-49 Anand Kumar, SI/SHO Police Station Tissa proceeded to the place of occurrence and guarded the dead bodies through Constable since it was late in the evening. In the morning of 13th July, 1988, PW-49 SI Anand Kumar inspected the place of occurrence, prepared the site plan and also prepared inquest reports in regard to the dead bodies of Parma and Jhabbo in presence of PW-5 Jeet Ram and PW-24 Bainsu Ram. The dead body of Jhabbo was lying on a cot whereas the dead body of Parma was lying on the ground near the Chulha (hearth) in the room. There were marks of abrasions on the neck of Parma as well as on the nose and neck of Jhabbo. The Investigating Officer, prima facie, was of the view that the death had been caused by some unknown person by strangulating them. A ruka Ext.POO was sent to the police, on which formal FIR Ext.PPP was recorded at 3.30 p.m., on 13.7.1988. It is further in the prosecution case that during the search of the place where the dead bodies were found, PW-49 SHO Anand Kumar also took into possession a golden Tikky lying at the spot, blood stained earth from the place of occurrence and a Khalru (hide bag) and also effected recoveries of a blood stained turban, sangli, kunda and khind (quilt), which were taken into possession through recovery memos. The post mortem examination on the bodies of the deceased was conducted by Dr.Brij Mohan, PW-31, who gave his opinion that the cause of death was due to strangulation. It is the prosecution case that no clue regarding the murder of both the deceased could be found for about two years. On 4.7.1990, SI Anand Kumar, PW- 49, interrogated PW-6 Smt.Baloo and on interrogation, he became suspicious about the involvement of accused Baldev in these murders and, therefore, Baldev was arrested on 5.7.1990. During investigation, disclosure statement was made by accused Baldev and he also got effected the recovery of some gold ornaments. Similarly, the remaining accused were arrested and they made disclosure statements leading to the recovery of some other gold ornaments, allegedly stolen from the house of the deceased. These stolen articles were produced before the Executive Magistrate and some of these were identified by PW-41 Kamli, also widow of deceased Parma, PW-42 Nagni daughter of deceased Jhabbo and PW-43 Dekhnu, sister of deceased Parma, who all had allegedly kept the case property with the deceased Parma in his house. After completion of the investigation, the challan was filed before the court of learned Judicial Magistrate, Chamba, who committed the case to the learned trial Court, who tried the respondents leading to their acquittal. We have heard the learned Deputy Advocate General for the appellant as well as the learned counsel for the respondents and have been taken through the evidence consisting of 50 witnesses examined by the prosecution to substantiate their case. On appraisal of the record of the case, it is clear that there is no eye witness to the murder of Parma and Jhabbo nor there is any evidence consisting of the statement of any of the witnesses, who may have seen the theft or robbery being committed in the house of the deceased persons. There is no evidence of any person who may have seen any of the accused persons in the Village of the deceased or near their house prior to the occurrence or immediately after the occurrence. There is no circumstantial, evidence consisting of the testimony of any of the witnesses who may have seen them going to the house of the deceased or going back from the house of the deceased so as to link them with the commission of the offence with which they have been charged. There is nothing on record to show that the deceased were, in any way, related to the accused persons or were known to them or had visited the deceased persons prior to the occurrence at any time. The police set into motion after two years only when one PW-6 Balo was interrogated by the Investigating Officer in connection with some case and he allegedly recovered some gold ornaments from her possession. Thereafter, on suspicion, one of the accused Baldev was arrested and subsequently, other accused persons were arrested, who made disclosure statements, got recovered some gold ornaments and these were got identified from the relatives of the deceased and thereafter, the challan was filed as against the respondents. It is, therefore, clear that the circumstantial evidence as against the respondents is weak type of evidence in the facts of the case since the recoveries were made after a period of two years and it has to be seen as to whether these recoveries were effected in a fair manner and they point out to only one conclusion that the respondents had committed the offence of murder as well as that of theft, for which they had been charged. It was rightly observed by the learned trial Court that even if the recoveries, in question, were proved to have been legally made in pursuance of the disclosure statements made by the respondents and the subsequent recoveries effected thereto, it has to be seen as to whether they lead to the conclusion that the respondents were receiver of stolen property and as to whether on this type of evidence, they can also be held liable for having committed the murder of the deceased persons. There are various infirmities in the prosecution case, which make the prosecution story doubtful and the evidence led is neither cogent nor reliable pointing out to the guilt of the respondents. The first infirmity can be said to be that no recoveries are effected for a period of two years after the dead bodies of two persons were recovered and the first recovery is effected only when one of the respondent is arrested on suspicion leading to the arrest of other respondents also. The next infirmity is that the dead bodies of both the deceased persons were found lying in their house and information had been given to the police by one Kandhari PW-3, but there is no mention of any theft having been committed in the house of the deceased persons at the time of the commission of offence of murder. The case is initially registered by the SHO, Police Station, Tissa under Section 302/460 of the IPC. The women folk of the family, namely, the other wife of the deceased Parma, his one daughter and one sister living away, are associated on the next day, i.e. on 13.7.1988, but still the offence of theft is not added to the sections under which the case was registered and the investigation proceeds in a slow manner. The statements of these three witnesses, namely, PW- 41 Kamli, PW-42 Nagni and PW-43 Dekhnu are recorded by the police and they do make a reference to the theft of gold ornaments, which they had given to the deceased Parma with whom these were lying. The next infirmity can be said to be, as has been observed by the learned trial Court, that there are no justifiable reasons for these relatives of the deceased to keep their property with the deceased. One of the relatives, namely, PW-41 Kamli is the second wife of Parma, who has stated that she had gone to her maternal uncle’s house a day or two before this murder and when she learnt about the murder, she came back there. She is not specific in her statement that she had been living with the deceased in the same house. The second relative is PW- 42 Nagni, married daughter of the deceased persons, who has stated that her mother Jhabbo used to keep ornaments in a Khalroo. She was married 30 or 40 years earlier and her husband had not given her any jewelry at the time of marriage and the jewelry, which she was having, had been left by her with her mother, as per her testimony. The third witness PW-43 Dekhnu is the sister of deceased Parma, who is a widow and not having any issue. She also used to keep her jewelry with her brother, which were kept in a Khalroo. She is widow having no issues and it looks surprising that she did not deem it necessary to keep the jewelry in her own house and rather all these persons had kept their jewelry with the deceased persons in their house, which makes the prosecution story doubtful. Apart from the above, it is also clear that the statements of these witnesses had been recorded by the Investigating Officer on the next day and all have clearly stated in their statements that they never mentioned the weight of the gold ornaments belonging to them, which were stolen from the house of the deceased persons, but their statements recorded under Section 161 of the Cr.P.C., namely, Exts.DF, DG and DH do make a reference to the weights of the gold ornaments. Once the witnesses are specific that they had not mentioned weights of the gold ornaments, it is surprising how they find mention in the police statements recorded under Section 161 of the Cr.P.C. An inference can be drawn that these weights may have been mentioned after the recoveries were effected after two years and the possibility that these statements were changed after the recovery of the gold ornaments after two years cannot be ruled out. We have justifiable reasons to draw this conclusion since the statements of these witnesses were recorded on the next day of the occurrence and we have summoned the police diary which confirms this fact that these statements of these persons were recorded on 13.7.1988. However, once these statements were recorded under Section 161 of the Cr.P.C., their statements were not required to be reproduced verbatim in the case diary, but, according to a decision of this Court, these statements were required to have been got initialed from the Magistrate during the course of investigation or the copies could have been summoned. In the alternative, these copies should have been produced from the office of the Superintendent of Police concerned to prove as to on which date these statements were received. Keeping in view the fact that the witnesses are specific and the statements contained the weights of the ornaments, it makes the genuineness of these statements doubtful. Apart from the above, we may mention here that there is another infirmity which cannot be ignored by this Court. These statements were required to be marked at the time of examination of these witnesses and when the Investigating Officer appeared in the witness box, only then they could have been exhibited since the Investigating Officer was the scribe of these statements and these could not have been accepted since these do not contain the signatures of the author i.e. the three relatives examined in the case. However, the learned trial Court, during the trial, accepted these statements as Exts.DF, DG and DH and when the Investigating Officer appeared in the witness box as PW-49, he nowhere stated that these statements Exts.DF, DG and DH are in his hand and bear his signatures, though he simply stated in cross-examination that he had recorded the statements of these witnesses. His this statement was not sufficient to prove the document and since the same has not been exhibited according to law, these cannot be read in evidence and accordingly, no benefit can be taken by the prosecution that the weights of the ornaments were mentioned in these statements recorded two years ago. Coming to the disclosure statements, the prosecution had recorded the statements of many witnesses including the Investigating Officer and the witnesses to the disclosure statements and the recovery memos, vide which these articles were taken in possession, have been discussed by the learned trial Court in detail, but there are many infirmities in these statements and these have been discussed by the learned trial Court in detail, which have not been specifically pointed out to have been incorrectly appreciated by the learned trial Court. However, we may refer to another infirmity in the prosecution case that PW-40 Chet Singh, Naib Tehsildar, before whom these three relatives of the deceased identified the articles, has clearly stated that all these articles were firstly opened in presence of Dekhnu, Kamli and Nagni and they remained in his room for the period when the articles were opened by him. He called the SHO and asked him to bring the articles but the purpose of identification is defeated once the articles had been opened in the presence of the witnesses, which were recovered allegedly at the instance of the accused persons. It is in the statement of PW-43 Dekhnu also that they were shown the jewelry at the Police Station and this admission, as observed by the learned trial Court, demolishes the entire identification proceedings. Similar admission was made by PW-41 Kamli that the SHO remained in the office of the Tehsildar when she had identified the jewelry. Therefore, the recovery of these articles cannot be legally linked with the respondents and it cannot be held that these were stolen articles in view of the manner in which the identification of these articles was made before the Naib Tehsildar. It is also in evidence that some of the ornaments were sold or pledged by the respondents with PW-16 Janak Raj, PW-18 Kalyan Singh, PW-28 Sukhdev Raj and PW-29 Dalip Kumar, but it is in their testimony that these ornaments were melted by these witnesses and, therefore, these could not be recovered. Therefore, the recovery of these articles cannot be linked with the stolen property. It is also in evidence that all the articles recovered were not identified by these three women who are the relatives of the deceased. PW-43 Dekhnu had identified golden Mantikka Ext.P-17 and she also admitted that these are commonly available in every house at Churah. There is nothing in the FIR that the theft of this Mantikka was also committed on that night. The silver bangles Ext.P-37 and Ext.P-38 were recovered from PW-44 Kishan Chand in pursuance of the statement of accused Chandu, however, the said Kishan Chand had not supported the prosecution case and has denied, if any silver bangles were given to him by accused Chandu Ram. PW-9 Tula Ram has not supported the prosecution case on the point that golden Mantikka was sold to him by accused Baldev Singh. The learned trial Court had discussed the recovery of other articles in detail and after careful perusal of the same, were are of the opinion that there is nothing on the record to establish the link in between these articles and the articles allegedly stolen from the house of the deceased. We have already mentioned above that the progress in the police case was made after two years, when during interrogation of PW-6 Balo, the police became suspicious on recovery of a gold ornament and thereafter arrested firstly accused Baldev after two years. The said Balo, when she appeared in the witness box as PW-6, denied having made any such statement to the police and was declared as hostile. Some of the articles which have been recovered from the possession of the accused, have not been claimed by all these three women to be the stolen property and these cannot be, therefore, linked with the respondents for forming an opinion that they committed the theft of these articles or they were the receiver of stolen property or that at the time of commission of theft of these articles, they had committed the murder of the deceased persons. On a careful appraisal of the evidence led by the prosecution, we are of the opinion that there was no evidence to connect the respondents with the offence with which they have been charged and the learned trial Court had discussed the evidence in detail and the said findings of the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be termed as perverse since there is no material to hold so, which may have been pointed out by the learned Deputy Advocate General appearing for the State. Therefore, the conclusion drawn by the learned trial Court cannot be said to be perverse calling for an interference by this Court. In view of the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), Judge. April 18, 2009. (V.K. Ahuja), (TILAK)