IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.145 of 2006. Dated of Decision: September 16, 2009. Kiran Bahadur & another. ……… Appellants. Versus State of Himachal Pradesh. ………. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?Yes. For the Appellants : Mr. Jagdish Vats, Advocate with Mr. Neeraj Sharma, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. Surjit Singh, J (oral): Appellants have appealed against the judgment dated 19th December, 2005 of learned Sessions Court, whereby they have been convicted of offence, under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.4,000/-; in default of payment of fine to undergo imprisonment for a further period of six months, each. 2. Case of the prosecution, as it emerges from the evidence on record, may be summed up thus. Deceased Suresh Kumar Dhingra was employed as Assistant Branch Manager in ------------------------------------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment? 2 Kalbog Branch of State Bank of India, falling in the jurisdiction of Police Station Kotkhai, District Shimla. Manager of the aforesaid Kalbog branch was on leave in August, 2004 and deceased Suresh Kumar Dhingra was officiating as Manager. On 30th August, 2004, deceased Suresh Kumar Dhingra and PW3 Amit Gupta, employed as Assistant Cashier in the said branch closed the bank at 6.30 p.m. The two went for evening walk. Around 8 p.m., deceased Suresh Dhingra, after stopping at Amit Gupta’s place for a cup of tea, returned to his residence, which was located on the upper storey of the same building, on the ground floor of which the aforesaid branch of the bank was located. 3. On 31st August, 2004, around 2 a.m. ( in the night), PW2 Mathi Devi, who was asleep in her house, close to the building, in which the aforesaid branch of the bank was housed, woke up to urinate. She went out to the verandah and saw a man lying there. She went inside the room and informed her husband PW1 Chenu Ram about the presence of a man in the verandah. Chenu Ram came out and saw that the man was dead. He informed PW5 Surinder Dogra, a salesman at the nearby liquor vend. The latter went to the verandah and saw the dead body. It was the dead body of Suresh Dhingra, Assistant Branch Manager. Pradhan of the Panchayat was telephonically informed by PW1 Chenu Ram. Police was also informed by Chenu Ram telephonically. PW22 ASI Vikram Chauhan reached the spot. He recorded statement Ex.PW1/A of Chenu Ram, under Section 154 Cr. P.C., and sent the same to the 3 police station, for formal registration of the case. He then conducted inquest and sent the dead body to the hospital for the postmortem examination. Then he inspected the residence of the deceased. He found stains of blood on the walls, windows and doors etc. Also he found stains of blood on the cover of quilt, mattresses, bed sheet and pillow cover. One cap, Ex.P7, was found lying in the bed room of the deceased. All the blood stained articles and cap were taken into possession. PW5 Surinder Dogra informed the police that on the evening of 30th August, 2004, one Gurkha wearing a cap similar to Ex.P7 had visited his liquor vend and purchased a bottle of liquor. Postmortem was conducted by PW13 Dr. Mrs. Sangeet Dhillon, who noticed the following ante mortem injuries:- “1. 1.5 cm. gapping incised wound 1 cm bone deep on the left temporal region 6 cm superior to upper end of ear and 6 cm. superior to left lateral end of left eye. 2. 13 cm avulsion injury 3 cm. deep 3 ½ cm. avulsed 5 cm interior to inferior end of tragus, measuring 12 cm in length. The distance between 1 and 2 injuries 12 cm. 3. Incised wound extending from left shoulder to interior aspect of chest. It is 25 cm x 2 cm. gapping at the broadest area. ½ cm broad at the narrowest region, it is ½ cm at the deep tailing towards medial aspect of chest. The distance between No.2 and 3 is 14 cm. 4. A gapping wound 4½ cm x 1 cm, gapping into 1 cm deep interior to the left elbow joint on the posterior aspect. It is horizontal. 5. Abrasion 3cm x ½ cm. It is 5 ½ cm distal left elbow joint. It is on the posterior aspect of forearm, brown in colour. 6. 6 cm. gaping wound on base of thumb x 2 cm. gapping x 1 cm. deep 2 cm distal to the left interior aspect of wrist joint extending from dorsal to palmer aspect. 4 7. A gapping wound 3.1 x .5 cm on left side of abdomen 10 cm. superior to umbilicus. 8. A gapping incised wound 3 ½ x 2 into abdominal cavity deep. It is 3 cm. inferior left side of umbilicus. Intestine coming out of wound which was brown in colour. 9. Abrasion 2.1 cm. on lateral region gluteal on left side 7 cm, below the posterior iliac spine. Brown in colour. 10. 8 x 5 cm. abrasion on interior aspect 10 cm. inferior to interior iliecs spine brown in colour. 11. Multiple abraised wound 7 x 9 cm. on the left upper end of patella brown in colour. 12. Multiple grazed wound 4 x 1 cm. 2 cm. inferior to mid of interior end of patella brown in colour. 13. Abrasion on left leg 3.5 cm. on interior aspect 10 cm. below the inferior aspect of patella. Brown in colour. 14. Grazed wound on right elbow posterior aspect 4 x ½, 8 cm. between the two abrasions brown in colour. 15. 4 x .25 incised wound on the base of thumb on right hand palmer aspect. 16. Grazed abrasion on right gluteal region 20 x 10 cm. 5 cm. inferior to posterior superior iliecs spine. Brown in colour. 17. Grazed abrasion 6 x 7 cm. on right inferior end or patella. 18. Grazed abrasion 6 x 2/2 cm. 9 cm. superior to abrasion. 19. .5 cm superior to left mid eye brown grazed abrasion 3 x .5 cm. 20. Longitude abrasion 18 x 1.8 cm. superior to mid gluteal region. 21. Incised wound 7 x 2 x 1.4 cm. below the left shoulder joint.” 4. On opening the skull, one cut from left to right measuring .5 x.5 cm was found on temporal bone. A sharp cut measuring 7.1 cm was found on the small intestine corresponding to 5 the stab wound at anterior abdominal point. Cause of death was opined to be haemorrhagic shock, resulting from multiple injuries. Injuries were opined to have been caused by sharp moderately heavy weapon. Postmortem report Ex.PW13/B was issued. 5. Police went in search of the culprits along a path in nearby forest. One attaché case Ex.P1 was found lying in the forest. It was locked. It appeared that an attempt had been made to open its central lock, but without success. 6. During the course of investigation, police came to know from one Shashi, a labour Contractor, that two Gurkhas employed with him had been missing since 30th August, 2004. He gave name and description of the Gurkhas, which matched with those of the appellants. Police went in search of the appellants to Gauri Kund area of Utranchal, from where PW22 ASI Vikram Chauhan procured the photographs of the appellants. The same were got published in the newspaper with the notice to the public that the persons (in photographs) were wanted in a murder case by Kotkhai police. PW6 Tirath Ram, on reading that notice informed the police of Rampur Police Station (district Shimla) that two persons, whose faces matched with the photographs that appeared in the aforesaid notice, had been living with one of his tenants for the last several days in his residential building. 7. Two constables from Rampur Police Station were deputed who arrested the appellants and handed them over to Kotkhai police. Appellants were interrogated by the police. They made disclosure statements on 17th September, 2004 leading to 6 discovery of their clothes, Khukhri Ex.P10 and Kinfe Ex.P11. On 20th September, 2004, appellants were got medically examined and some healed/ healing injuries were noticed on their index fingers. 8. On completion of investigation, appellants were challaned. The concerned Magistrate, in whose Court challan was filed, complied with the requirement of Section 207 Cr.P.C. and committed the case to the Sessions Court. Appellants were charged by the learned Sessions Judge for offence under Section 302 read with Section 34 of the Indian Penal Code. They pleaded not guilty. So, they were put on trial. Prosecution tried to connect the appellants with the commission of crime through circumstantial evidence. It sought to establish the charge by proof of the following circumstances:- (i) Appellant Padam Bahadur went to PW5 Surinder Dogra to buy a bottle of liquor on 30th August, 2004 wearing cap Ex.P7, which was found in the bed-room of the deceased on 31st August, 2004, after the commission of crime. (ii) Appellants absconded from the area around the date and time of the commission of crime. (iii) Appellants got recovered Khukhri Ex.P10 and Knife Ex.P11, which according to PW13 Dr. Mrs. Sangeet Dhillon could have been used in inflicting the injuries, which were found on the dead body of Suresh Dhingra. (iv) Appellant Padam Bahadur got recovered pants Ex.P15, on which stains of blood were found, per report Ex.Pw20/B of the Chemical Examiner. (v) Appellants got recovered a Sweater Ex.P9 on which stains of human blood were found. 7 9. Learned trial Court came to the conclusion that all the aforesaid circumstances stood proved to the hilt and they formed complete chain, leading to only one hypothesis that the appellants were guilty of offence of murder and to no other (hypothesis). 10. We have heard the learned counsel for the appellants as also the learned Deputy Advocate General and gone through the record. 11. We may notice at the very outset that the prosecution did not examine Shashi, the alleged Contractor with whom the appellants were employed and who allegedly told the police that two appellants had been disappearing since the date and time of the commission of the crime. There is no other evidence indicating, even remotely, that the appellants had been doing any work or staying in the area of Kalbog, where the crime was committed, prior to the commission of the crime and that soon after the commission of crime they disappeared from the area. Also there is no evidence, suggesting how the police came to know about the names of the appellants as the persons who could have been involved in the commission of the crime or the description of the appellants or that their photographs could be available with someone in the area of Gauri Kund, in Uttranchal, from where those photographs were collected by PW22 ASI Vikram Chauhan. 12. Coming to the aforesaid circumstances, we are of the considered view that the evidence led by the prosecution does not prove any of the aforesaid circumstances, particularly those, which are most significant, beyond reasonable doubt. 8 13. The first and the most important circumstance, upon which the prosecution has placed reliance, is recovery of cap Ex.P7 from the residence of the deceased on 31st August, 2004, when the police inspected the residence, after the commission of the crime. PW5 Surinder Dogra, Salesman at the liquor vend did not say that appellant Padam Bahadur came to his shop, wearing cap Ex.P7. He simply stated that he was wearing a cap, like Ex.P7. Prosecution did not lead any evidence excluding the possibility of the cap being that of the deceased. PW3 Amit Gupta, Assistant Cashier, who was also a witness to the recovery of the cap did not say that the cap did not belong to deceased Suresh Dhingra, though he did say that it was recovered, in his presence by the police on 31st August, 2004 from the house of the deceased. Thus, the first and the most important circumstance, which the prosecution seeks to use, as the main link, in the chain of circumstances, does not stand proved. 14. Another circumstance is that appellants were having injuries on their persons, which corresponded to the timing of the commission of the crime. To prove this circumstance, prosecution examined PW11 Dr. Anil Kumar Verma, Medical Officer in Civil Hospital Theog, who testified that on 20th September, 2004, on examination of appellant Kiran Bahadur, he noticed 2 cm x 2 mm healed wound on his right index finger (lateral aspect). The witness further testified that on the same day, he conducted medical examination of appellant Padam Bhadur and noticed one healing wound on the left index finger (dorsal aspect) with scab formation, measuring 1 cm x 3 mm. The Doctor opined that it takes 7 to 8 days 9 for a wound to heal properly, if it is stitched, and if it is not stitched, it may take longer period. 15. It has come in the statement of PW22 ASI Vikram Chauhan that the two appellants had been got medically examined by him earlier also, i.e. on 15th September, 2004. Certificates pertaining to that medical examination of the appellants have been withheld by the prosecution. Therefore, an adverse inference can legitimately be drawn against the prosecution that in the course of medical examination of the appellants, conducted on 15th September, 2004, as testified by PW22, no marks of healed or healing wounds or even fresh wound were there on the right index finger of Kiran Bahadur and left index finger of Padam Bahadur. In any case, even the testimony of PW11 Dr. Anil Kumar Verma does not suggest that the wound noticed on the fingers of the two appellants could have been sustained by them on or around the date of occurrence, because he stated that it takes 7 to 8 days for this kind of wounds to heal completely. The incident took place on the night intervening 30th and 31st August, 2004 and the medical examination of the appellants was conducted by PW11 Dr. Anil Kumar Verma on 20th September, 2004. Thus, this circumstance also does not stand proved beyond reasonable doubt. 16. Evidence with regard to recovery of Khukhri and Knife though inspires confidence, but the two weapons do not stand connected with the crime. Opinion of PW13 Dr. Mrs. Sangeet Dhillon to the effect that the injuries could have been caused with these two weapons is only opinion evidence and that too only to the 10 effect that these weapons may cause injuries similar to the ones found on the dead body. Her testimony is not definite, nor could it have been, as she did not witness the incident. Chemical Examiner, per report Ex.PW20/B, though noticed stains of blood on Khukhri Ex.P10, but he could not find the origin of blood, that is to say whether it was human blood or blood of some animal. On knife Ex.P11, though human blood was found, but its group could not be determined. Otherwise also, the mere presence of human blood on knife Ex.P11, which, as per sketch Ex.PW22/K, is an ordinary knife and its length, including that of the handle, which is more than the blade, is only 20.5 cm or say about 8 inches, cannot be said to be a lethal weapon. This kind of knives are normally used for peeling/cutting vegetables and fruits and while doing such a job with knife, one can sustain cut injury and blood would appear on the knife. Moreover, the doctor very specifically stated that injuries were caused by sharp & moderately heavy weapon. Knife is not a heavy weapon. 17. Similarly, though recovery of Sweater Ex.P9, at the instance of the appellants, is proved, but there is absolutely no evidence as to whom this Sweater belongs. Chemical Examiner found stains of human blood on this Sweater, but the group could not be determined. On Pants Ex.P15, some stains of blood were found, but the origin of blood could not be traced. Also there is no evidence, indicating that the pants belongs to any of the two appellants. Thus, the recovery of the Sweater and Pants also does not connect the appellants with the crime. 11 18. In view of the above stated position, we are of the definite view that the case against the appellants does not stand established. Hence, the appeal is accepted, judgment of the trial court, convicting the appellants of offence, under Section 302, read with Section 34 of the Indian Penal Code, is set-aside and the appellants are acquitted. They are ordered to be released, forthwith, in case their custody is not required in any other case. (Surjit Singh) Judge September 16, 2009. (Surinder Singh) (Pds) Judge.