IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.437 & 457 of 2008 Decided on : May 10, 2011 Cr.A No.437/2008 Bhim Bahadur & another …Appellants. Versus State of H.P. …Respondent. Cr.A No.457/2008 Ram Bahadur …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant(s) : Mr. Manoj Pathak, Adovcate (In both the appeals). For the Respondent : M/s J.S. Guleria & R.P. Singh, Assistant Advocate Generals. Surjit Singh, Judge(Oral) By this judgment, we are disposing of two appeals, because in both of them the same judgment of conviction and sentence, i.e. judgment dated 30th June, 2008, of learned Additional Sessions Judge (Fast Track Court), has been assailed. One appeal, i.e. Cr.A No.437 of 2008, has been filed by appellants Bhim Bahadur and Raju and the other appeal, i.e. Cr.A No.457 of 2008, has been Whether reporters of the local papers may be allowed to see the judgment? …2… filed by appellant Ram Bahadur. There were three accused, in all, before the trial Court. 2. Appellants Bhim Bahadur and Raju have been convicted of offences, under Sections 302 & 392, read with Section 34 of the Indian Penal Code, and appellant Ram Bahadur has been convicted of offences, under Sections 212 and 414 of the Indian Penal Code. Punishment awarded by the trial Court is as under: Appellants Bhim Bahadur and Raju Under Section 302/34 IPC Imprisonment for life and fine of `20,000/- each, in case of default of payment of fine to undergo rigorous imprisonment for a further period of four years. Under Section 392/34 IPC Rigorous imprisonment for a period of ten years each and fine of `15,000/- each, in default of payment of fine to undergo rigorous imprisonment for a further period of three years, each. Appellant Ram Bahadur Under Section 212 IPC Rigorous imprisonment for a period of four years and fine of `10,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two years. Under Section 414 IPC Rigorous imprisonment for a period of three years and fine of `5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of one year. 3. Prosecution version may be stated thus. Deceased Desh Raj was resident of village Krithali in Rohru Tehsil. He ran a shop in a village, by the name of Shari Thach, in the same Tehsil. He had a Dogri (an …3… outhouse) in village Shari Thach. He would daily commute between his Dogri and shop. Often, on his way back to Dogri, he would break his journey at the Dera (a make-shift residential structure) of appellants Bhim Bahadur and Raju, in the orchard of one Shri Sohan Lal, with whom they were employed. 4. On 3rd May, 2006, after closing his shop, deceased went to the Dera of appellants Bhim Bahadur and Raju. There he allegedly took his meals and also consumed liquor. When he was asked to take more liquor, he allegedly told the appellants that he was having a huge amount of money with him and, therefore, it was not desirable that he should be consuming more liquor, as he could lose the money, while going to his Dogri. Appellant Bhim Bahadur and Raju, on coming to know that the deceased was having money, thought of a plan to rob him of that money and they being rustic could not think of a better way than killing the deceased, on his way to the Dogri. When the deceased left their Dera, they offered to accompany him to Dogri, because he was having cash with him. On the way they attacked him with a Danda from behind and hit him on the head. The deceased tried to run away. He was chased and was hit repeatedly with the Danda, as a result of which he fell and died. …4… 5. Deceased was carrying a bag Ex. P-1. It was in that bag that the cash was there. Appellants Bhim Bahadur and Raju de-camped from the spot with that bag. They took out the money from the bag and placed it in another bag, with a zip, Ex.P-17, and handed over that bag to their co-appellant Ram Bahadur, who happens to be the father of appellant Raju. The zip of this bag had a provision for locking. It had been locked. 6. When the dead body was spotted, on the next morning, police was informed. Sub Inspector Shri Amar Chand (PW-22) went to the spot. A brother of the deceased, namely Shri Duni Chand (PW-1) was there on the spot. He made statement, which was reduced into writing, under Section 154 of the Code of Criminal Procedure. The same is Ex. PW-1/A. It was sent to the Police Station for registration of the case. Case was formally registered, vide FIR Ex. PW-22/B. As per statement Ex. PW-1/A, suspicion was raised by PW-1 Shri Duni Chand against one Sahiya Ram, who had been given a beating by the deceased about a week prior to the spotting of his dead body. Sahiya Ram was arrested and kept in police custody, of course, under the orders of Judicial Magistrate for quite some time and ultimately he was remanded in judicial custody on 14th May, 2006. …5… Police could not get any clue of the alleged murder of Desh Raj from said Sahiya Ram. 7. On 22nd May, 2006, present appellants were arrested. They were remanded in police custody by Judicial Magistrate. Appellant Ram Bahadur allegedly made disclosure statement Ex. PW-2/E that he had handed over a locked bag to Shri Nehar Singh (PW-9) of village Busari and the said bag contained a sum of `18,030/-. Key of that bag was handed over to the police by the wife of appellant Ram Bahadur. That bag was recovered from PW-9 Shri Nehar Singh. It was found to contain currency notes of `18,030/-. 8. Appellant Bhim Bahadur also made a disclosure statement that he had kept hidden, at his Dera in village Busari, telephone of NOKIA make, having No.9816429365. Pursuant to this statement, he got a Mobile Phone Ex. P-19 recovered. 9. Investigation revealed that from the aforesaid Phone a call had been made on Phone Ex. P-4, which belonged to PW-7 Shri Sanju. Printouts of both the Phones were obtained and the printouts showed that a call had been made from Phone Ex. P-19 to Phone Ex. P-4, on 4th May, 2006 around 8 in the evening and PW-7 Shri Sanju informed the police that the call was from appellant Bhim Bahadur. …6… 10. Appellant Raju made a disclosure statement that he had kept hidden a Danda in the bushes above a potato field, which he could get recovered. Record of the said statement is Ex. PW-12/A. Pursuant to this statement, Danda Ex. P-13, had been recovered. It was sent to the Chemical Examiner, who found stains of human blood of Group-A on this Danda. Stains of human blood of the same group were also found on the clothes of the deceased, which they allegedly got recovered from the bushes in a jungle. 11. PW-22 Shri Amar Chand, Sub Inspector, prepared inquest report, after vising the spot, on 4th May, 2006. The said report is Ex. PW-22/Q. Dead body was sent to the hospital at Rohru, for postmortem examination. Postmortem was conducted by PW-11 Dr. Sumit Sood, who noticed the following injuries on the dead body: “1. A clean cut incised antemortem wound was situated over the chin measuring 3 inches linearly and about four mm wide and eight mm in depth was present and covered with brownish black congealed blood. The congealed blood was also present in the nostrils and both ears. 2. Incised would over the left pinna causing partial separation of the left ear. It measures one inch linearly, two mm wide and eight to nine mm in depth. There was no mark of ligature or dissection around the neck. INJURIES ON SCALP …7… 3. Clean incised antemortem wound present on the left parietal region about two inches above the left ear measuring about five inches long about four mm in width and extending to the underlying skull bone with bevealing edges. 4. Complete avulsion of the scalp over the occipital region. The flap is roughly oval measuring six inches into six/seven inches in the widest dimension overlying the comminuted fracture of the underlying bone. Clotted brownish black blood was covering the site of the aforesaid injuries.” On opening the skull, he observed as follows: “1. Linear comminuted fracture of the left parietal bone with partial separation and fragmentation of the bone seen. 2. Comminuted depressed fracture in the region of the occiput measuring about six inches into six inches roughly oval covered by avulsed scalp with protrusion of the underlying mutilated brain matter. 3. Brain matter protruding through the comminuted fracture of the occuput. According to the doctor, death took place instantaneously with the infliction of the injuries and the time lag between the death and the postmortem examination was 36 to 48 hours. Postmortem was conducted on 5th May, 2006 at 10 a.m. 12. Prosecution examined 23 witnesses to bring the charge home to the appellants. It also proved various documents, including the report of Chemical Examiner and the record of the alleged disclosure statements made …8… by the appellants. Learned trial Court concluded that the following circumstances stood established by the evidence adduced by the prosecution: “a) Sh. Desh Raj (deceased) was running a karyana shop at Shari Thach. b) Sh. Sohan Lal (PW-14) owns the land in Shari Thach and has built a ‘dogri’ (hamlet) there. c) Accused Raju used to sow the crop in the land of Sh. Sohan Lal and live in the ‘dogri’. d) Sh. Desh Raj used to visit the ‘dogri’ of accused Raju. e) On 3.5.2006, after closing his shop, Sh. Desh Raj went to the ‘dogri’ of accused Raju where accused Bhim Bahadur was also present. f) The deceased, accused Raju and Bhim Bahadur had the dinner together. g) Sh. Desh Raj was carrying a torch Ext.P- 2, bag Ext.P-1 containing currency notes and mobile phone Ext.P-19 etc. h) While taking the dinner, Sh. Desh Raj told accused Bhim Bahadur and Raju that he is carrying the cash. i) After the dinner, accused Bhim Bahadur and Raju accompanied Sh. Desh Raj on the pretext to leave him in his ‘dogri’. j) On the way, the intention of these two accused became dishonest. They gave ‘danda’ blows on the head etc. of Sh. Desh Raj, killed him and robbed him of his belongings i.e. bag Ext.P-1 etc. k) The torch etc. of the deceased were recovered at the instance of the accused. …9… l) The clothes which accused Bhim Bahadur and Raju were wearing at the time of the occurrence were recovered by the police at their instance. m) The clothes of accused Bhim Bahadur and Raju were sent for chemical test. On examination, human blood of group A i.e. the blood group of Sh. Desh Raj was found on the clothes of these two accused. n) Human blood was also found on the ‘dandas’ which were recovered at the instance of the accused. o) Mobile phone of the deceased was got recovered by accused Bhim Bahadur from his Dera. p) Accused Bhim Bahadur and Raju had a talk from the mobile phone of the deceased with Sh. Sanju (PW-7) on 4.5.2006 after 8 P.M. How the mobile phone of the deceased or his belongings came into possession of the accused is anybody’s guess. q) Accused Raju made the disclosure statement Ext. PW-12/A and got the ‘danda’ Ex. P-13 i.e. the weapon of offence recovered. r) Bag of the deceased having currency notes was handed over by accused Raju to his father (accused Ram Bahadur). s) The key Ext. P-20 of the lock put on the bag was produced before the police by Smt. Ram Pyare, the mother of accused Raju. t) The bag having money was entrusted by accused Ram Bahadur to Sh. Nehar Singh (PW-9). u) Sh. Nehar Singh produced bag Ext. P-1 of Sh. Desh Raj before the police. Checking of the bag led to the recovery of Rs.18,030/-.” …10… 13. Trial Court held that the aforesaid circumstances made a complete chain and conclusively proved that the deceased had been done to death by none else than appellants Bhim Bahadur and Raju and that the third appellant harboured the aforesaid two appellants and also received stolen property from them, knowing or having reason to know that the same was stolen. Consequently, the appellants were convicted and sentenced, as aforesaid. 14. We have heard learned counsel for the appellants as also learned Assistant Advocate General and reappraised the entire evidence. 15. Circumstances a, b & c are of no relevance, as they pertain to the facts that the deceased was having a shop in village Shari Thach, PW-14 Shri Sohan Lal had a Dogri in his orchard in village Shari Thach and appellant Raju used to live in that Dogri. 16. As regards Circumstances d, e, f, g, h, i & j, there is absolutely no evidence on record. It is only PW-21 Shri Nutan Sharma of CIA staff, who took over investigation from PW-12 Shri Amar Chand, Sub Inspector, and on the basis of record of interrogation of the appellants, testified about these facts. What the appellants allegedly told him, during interrogation, cannot be used as evidence, in view of the bar contained in …11… Sections 25 & 26 of the Indian Evidence Act. As a matter of fact, PW-21 Shri Nutan Sharma should not have testified these facts and even if he wanted to testify the same, the trial Court should not have recorded them in his statement, on oath, in view of the bar contained in the aforesaid provisions of the Indian Evidence Act. 17. Coming to Circumstance (k), no doubt PW-1 Shri Duni Chand, a brother of the deceased and PW-5 Shri Sher Singh, a brother-in-law of the deceased, did say that the torch, allegedly got recovered by the appellants, belonged to the deceased, but they did not testify any specific or distinct identification mark on the torch. Torch is Ex. P-2. This kind of torches are easily available in the market and are supposed to be available with so many persons. Torch Ex. P-2 has no mark of distinction. So, It cannot be said, simply on the basis of the testimony of the above two witnesses, in the absence of any supporting evidence, that the torch, in fact, belonged to the deceased. Moreover, none of the three appellants made any disclosure statement qua torch. 18. Next Circumstance, which pertains to the recovery of clothes of appellants Bhim Bahadur and Raju, suffice it to say that there is absolutely no evidence, suggesting, even implicitly, that the clothes allegedly recovered, at their instance, are in fact theirs or that they …12… were wearing the same, at the time of the alleged murder of the deceased. We fail to understand how the trial Court jumped to the conclusion, without there being any evidence, that the clothes belonged to appellants Bhim Bahadur and Raju. When the clothes are not proved to be of these two appellants, the presence of human blood of Group-A on these clothes, which is similar to the blood Group of deceased, is of little significance. 19. Next Circumstance is regarding recovery of Dandas. Learned trial Court has observed that the Dandas were recovered at the instance of the appellants. This observation betrays complete want of application of mind on the part of the trial Judge. Danda Ex. P-13 is alleged to have been recovered at the instance of one of the appellants, namely appellant Raju. The other Danda had been recovered by the police themselves on 4th May, 2006, when they visited the spot and were searching for any material evidence or clue of murder, around the place where the dead body was lying. The other Danda, which is Ex. P-5, which was recovered on 4th May, 2006, was found in the bushes, near the potato field, where dead body was lying. Danda Ex. P-13 was also allegedly recovered (pursuant to the alleged disclosure statement of appellant Raju) from those very bushes. Now, if one Danda was found lying near the bushes on 4th May, 2006, …13… when the police inspected the spot and its surroundings, it cannot be believed that the other Danda, which was recovered from those very bushes, could have escaped the roving eye of the police officials. 20. Also, we find that the prosecution case is that only one Danda was used by both the appellants. Initially, it was used by appellant Bhim Bahadur and then appellant Raju took the same from appellant Bhim Bahadur and hit the deceased repeatedly. If there was only one Danda, used as weapon of offence, according to the prosecution, the very fact of recovery of two blood stained Dandas, renders the prosecution version, with regard to the recovery of second Danda Ex. P-13, allegedly at the instance of appellant Raju, highly doubtful. It appears that the evidence of recovery of second Danda, at the instance of appellant Raju, was concocted to link the appellants with the crime. 21. Next Circumstance held to have been proved by the trial Court is recovery of Mobile Phone Ex. P-19 from appellant Bhim Bahadur. It is alleged that the Phone belonged to the deceased. It has come in evidence that the SIM Card, which was there in instrument Ex. P-19, on the date of the making of call on 4th May, 2006, allegedly by appellant Bhim Bahadur, to PW-7 Shri Sanju, had been purchased by one Shri Dharam Pal of Nalagarh. There is …14… absolutely no evidence, indicating as to how did the deceased come to possess the SIM Card No.9816429365, when it had been purchased by some Shri Dharam Pal of Nalagarh. This very fact makes it doubtful if the Phone, in question, belonged to the deceased. Phone Ex. P-19 did not have any SIM Card when it was recovered by the police. 22. Circumstance that appellant Raju handed over the money to his father appellant Ram Bahadur and the latter entrusted that money with PW-9 Shri Nehar Singh, in a locked bag Ex. P-17, has not been proved, beyond reasonable doubt, and even if it be assumed for the sake of argument that the same stands proved, there is no evidence, suggesting that the money in the bag or the bag itself belonged to deceased Desh Raj. Prosecution’s case is that the deceased was having cash of `40,000/- with him, on the relevant night. Cash recovered, at the instance of appellant Ram Bahadur, from PW-9 Shri Nehar Singh, is to the tune of `18,030/- only. This cash was contained in bag Ex. P-17. There is no evidence that bag Ex. P-17 belonged to the deceased. Also, there is no evidence if the deceased was having any cash with him on the relevant night, except the testimony of PW-21 Shri Nutan Sharma, Investigating Officer, who testified this fact, on the basis of facts disclosed to him by the …15… appellants, during interrogation and, therefore, his testimony is irrelevant and inadmissible. 23. Also, the evidence of the prosecution, with regard to the alleged disclosure statement by appellant Ram Bahadur, leading to the recovery of bag Ex. P-17, with cash in it, is doubtful. PW-4 Shri Gian Singh stated that appellant Ram Bahadur made the statement that the bag had been kept by him in his Dera and could get the same recovered. However, the bag was recovered from PW-9 Shri Nehar Singh, as per recovery memo Ex. PW- 9/A. PW-10 Shri Harbans Singh, one of the witnesses of the alleged recovery of bag, with currency notes, says that bag was already with the police at the house of PW-9 Shri Nehar Singh, when he was called to attest the recovery memo. 24. Evidence on record also shows that the deceased was wearing a chain of gold and a golden ring. These items of jewellery were found on the dead body, per inquest report Ex. PW-22/Q. Now, had the motive of killing of deceased been robbery, as alleged by the prosecution, the appellants would have taken away with them the chain and the ring also. Appellants were supposed to be knowing that the deceased was wearing the aforesaid two items of jewellery, because it is prosecution’s own case that the deceased had been with …16… the appellants, in their Dera, where he took his meals and also consumed liquor soon before his death. Also, it is the case of the prosecution that the deceased often used to visit the appellants on his way back to his Dogri, after closing his shop in the evening. If that is so, the appellants must have been knowing that he was wearing a golden chain and a golden ring. 25. Another circumstance, which renders the prosecution version doubtful, is the fact that though according to the prosecution the deceased had consumed liquor and taken meals with appellants Bhim Bahadur and Raju at their Dera, no food was found in the stomach of the deceased nor was any alcohol there in his viscera. Reference in this behalf may be made to the postmortem report Ex. PW-11/B and Chemical Examiner’s report Ex. PW-20/A. 26. Prosecution also tried to prove that bag Ex. P-1 had been got recovered by the appellants alongwith their clothes. Bag is alleged to belong to the deceased. Evidence on record, however, negates this allegation. PW-6 Shri Ram Bahadur, examined by the prosecution, stated that the bag, which the deceased carried with him, after closing his shop, was black coloured. But bag Ex. P- 1 is red, per recovery memo Ex. PW-3/C. …17… 27. As a result of the above discussion, we are of the considered view that the case of the prosecution does not stand established. Consequently, both the appeals are allowed. Judgment of the trial Court, convicting and sentencing the appellants, is set aside and they are acquitted. 28. Appellants Bhim Bahadur and Raju are stated to be in jail, undergoing the sentence awarded by the trial Court vide impugned judgment. They are ordered to be set at liberty forthwith, in case their detention is not required in any other case. Both the appeals stand disposed of. ( Surjit Singh ), J May 10, 2011(sd) ( Rajiv Sharma ), J