1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 55 of 1997. Date of decision: 26.5.2010 _________________________________________________ State of HP …Appellant. Versus Kundan Lal & ors …Respondents 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, Addl. A.G For the Respondents: Mr. Dharamvir Sharma Advocate. 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, Mandi dated 23.8.1996, vide which the respondents were acquitted of the charges framed against them under sections 302/201 read with section 34 IPC. 2. Briefly stated the facts of the case are that deceased Durga Dass was missing from his house since 3.9.1993. The dead body of the deceased was recovered on 7.9.1993 and thereafter a case was registered by the police. After investigation, the challan was filed before the court of learned JMIC, Mandi, who committed the case to the court of learned Sessions Judge and the case was assigned to the court of learned Additional Sessions Judge, Mandi, who tried the respondents, as detailed above, leading to their acquittal. 2 3. We have heard the learned Additional Advocate General for the State and the learned counsel for the respondents and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that neither there is eye witness to the occurrence nor there is cogent circumstantial evidence leading to the guilt of the accused proved by the prosecution. The only evidence which the prosecution has relied upon firstly, is last seen evidence, secondly, disclosure statement made by the accused and thirdly, the recovery of stones/draft etc at the instance of accused. It has to be seen as to whether the prosecution evidence proves the above facts and they only lead to one conclusion that the offence was committed by the accused. 5. Coming to the last seen evidence, the statement of PW-11, Het Ram is that he saw Amru and Kundan accused along with Durga Dass who was also present there. In his presence the deceased was demanding some loan amount from Kundan, who told him that he would pay the loan amount within 2-3 days. This is in all the evidence led by the prosecution. This witness does not state that both the accused and Durga Dass left the place together in his presence at that time. He also admitted in the cross examination that in his statement to the police he did not tell the fact that all the respondents and Durga Dass met him on 3rd September, 1993. Therefore also his statement does not inspire confidence. 6. PW-12, the other witness Hari Singh has also stated that he saw the accused Amar Singh, Kundan along with the deceased and the deceased was demanding some money 3 from Kundan. He also does not state that all these three respondents along with deceased left the place after this. Therefore, his statement also does not inspire confidence. On the other hand, there is statement of PW-10 Baman Singh who had seen the deceased Durga Dass with Amru accused going towards the house in village Sarogi. He also stated that Lachhmu accused also met him there and asked him to join them and then he went to the house of Smt. Maghi and brought the Aadhia. Kundan accused was also sitting in the house of Smt. Phagni, adjoining to the house of Maghi. Lachhmu accompanied up to that place and after leaving him, he went to his house and PW-10 proceeded to his house. It is not the case of this witness that the deceased was with the accused at the relevant time when he left the place and he does not state about the presence of two other accused persons also. 7. PW-15 Mohini Devi has also stated that the deceased Durga Dass had passed through a path near her house at 5 or 5 30 PM. He was all alone. Therefore, her statement does not establish that the deceased was last seen along with the respondents. 8. From the above discussion of the evidence, it is clear that the evidence led in regard to the last seen has to be in proximity in time to the death of deceased which is not there in the present case. The deceased was last seen on 3.9.1993 and the dead body was recovered on 7.9.1993. The postmortem was conducted on 9.9.1993 and according to the Medical Officer, PW- 17, the death had taken place 72 hours prior to postmortem, which comes to on or about 7.9.1993. Thus, there was a difference of 4 4 days in the evidence in regard to the last seen and the death of the deceased as such, the last seen evidence is neither cogent nor reliable to hold that the accused persons may be connected in any manner with the commission of the offence. 9. The second part of the evidence consists of alleged disclosure statement in regard to the pointing of the place which is not admissible in evidence since it did not lead to recovery of any article. The accused had pin pointed the place where the dead body was taken, which is not admissible in evidence. In regard to the recovery of stones/draft etc, there is nothing on record to establish that these were the weapons of offence or death was caused with these because the same were not sent to the Chemical examiner for his opinion to link the accused persons in any manner. Thus, the view taken by the learned trial court on the basis of the evidence led by the prosecution holding that the prosecution has failed to prove their case beyond any reasonable doubt, cannot be said to be perverse calling for an interference by this Court. 8. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( R.B. Misra), Judge. (V.K.Ahuja) Judge. May 26, 2010(sl) 5