IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.183 of 1996. Date of decision: 20.4.2010 State of H.P ..Appellant Versus Vinod Kumar & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Rajiv Sharma, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General. For the respondents: Mr.Karan Singh Kanwar, Advocate for the respondent No.1. Mr.Malay Kaushal, Advocate vice Ms.Devyani Sharma, counsel for respondent No.2. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 20.2.1995 passed by the learned Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No.44-N/7 of 1994/1993 whereby he acquitted the accused of 2 having committed offences punishable under Section 302 read with Section 34 of the Indian Penal Code. Briefly stated the facts of the case are that the deceased Radha Devi was an inmate of Nari Niketan, Nahan. She was married to Brahm Swarup, PW/16. Brahm Swarup was an elderly person and he was totally deaf but could speak a little. Brahm Swarup was residing in the house of the accused Vinod Kumar Bhatia. According to the prosecution, Vinod Kumar Bhatia and his family members were harassing the deceased and Brahm Swarup and wanted them to vacate the premises which were rented out to Brahm Swarup. The prosecution case further is that the other three accused namely Kishori Lal, Yoginder Singh and Deepak Kumar used to visit the house of the deceased Radha Devi and Brahm Swarup which fact was not liked by Brahm Swarup and because of this reason, Vinod Kumar Bhatia with the help of the other three accused murdered Radha Devi on 26.1.1992 between 7.15 p.m to 8.30 p.m. On the said date, Brahm Swarup alongwith his two children Rajni and Sunny had gone to the house of his 3 sister who also resided at Nahan. He left his house between 7.00 or 7.15 p.m and returned at 8.30 p.m. When he returned, he found his wife lying on the bed. She appeared to be dead. Doctor Peter Desuza was called through Sh.Rajiv Kumar who is a grand-nephew of Brahm Swarup. Dr.Desuza reached around 9.00 p.m and declared that Radha Devi was died. Nand Kishore and Shakil Ahmed came to the house of Brahm Swarup and noticed bluish marks on the neck of the deceased. They, therefore, proposed that the matter be reported to the police. However, the mother of Vinod Kumar Bhatia and accused Kishori Lal and his wife opposed the idea of reporting the matter to the police. Finally the matter was reported to the police. The police lodged the complaint and sent the dead body of Radha Devi to the hospital for the post mortem. The post mortem was conducted by Dr.S.D.Bherwal and Dr.M.L.Gupta who noticed a ligature mark around the neck of the deceased. After post mortem, they opined that the deceased had been done to death and had died on account of asphyxia caused by strangulation. 4 Though the incident took place on 26.1.1992, no progress in the investigation was made till September, 1992 when Vinod Kumar Bhatia allegedly made an extra judicial confession before PW/14 Vinod Kumar and stated that he alongwith Kishori Lal and one other person had killed the deceased. Thereafter, further investigation was carried out. The accused were arrested and finally a report under Section 173, Cr.P.C was filed against the accused persons. Since the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court. The accused were charged with having committed the offences detailed here-in-above. They pleaded not guilty and claimed trial. After trial, the accused have been acquitted. Hence the present appeal. Admittedly, this is a case of circumstantial evidence since there is no eye witness to the murder. It is well settled law that in the case of circumstantial evidence, the circumstances should be linked together in such a fashion that the only irresistible conclusion which can be drawn is the guilt of the accused. The hypothesis 5 of guilt should be conclusive, consistent and should exclude any chance of any other person having committed the offence. In case there is any chance of the accused being innocent, the Court has to decide the matter in favour of the accused. The prosecution in the presence case relied upon the following circumstances:- (i) Deceased alongwith her husband Brahm Swarup used to reside in the premises of accused Vinod Kumar Bhatia and the latter and his family members wanted to oust them from the said premises. (ii) All the accused used to visit the house of Brahm Swarup and the deceased inspite of the objections by Brahm Swarup. (iii) The mother of accused Vinod Kumar Bhatia and Kishori Lal and his wife objected to the reporting of the matter to the police when Nand Kishore and Shakil Ahmed expressed the view that the matter should be reported to the police before the cremation of the dead body. 6 (iv) Accused Vinod Kumar Bhatia made an extra judicial confession to his friend Vinod Kumar son of Sh.Chaman Lal a few days after the occurrence. (v) Accused Vinod Kumar made a disclosure statement leading to the discovery of a piece of nylon rope which was used to strangulate the deceased. As far as circumstance No.1 is concerned, there is no dispute that Brahm Swarup used to reside in the premises rented out to him by the accused Vinod Kumar Bhatia. Even if we believe that Vinod Kumar Bhatia wanted Brahm Swarup and his wife to vacate the premises, this circumstance by itself would not give sufficient cause to the accused to kill Radha Devi because that would serve no purpose whatsoever. Even more important is the fact that though Radha Devi died on 26.1.1992, no allegation in this behalf was made in the original complaint Ext.PB. This complaint was admittedly lodged by Rajiv Kumar, grand nephew of Brahm Swarup. Why did he keep silent about this aspect of the matter? It was only on 19.9.1992 that this witness for the first time 7 disclosed the factum of there being some inimical relations between the accused Vinod Kumar Bhatia and the deceased and her husband Brahm Swarup on the ground of non-vacation of the premises. It appears that this story has been concocted almost seven months after the death took place and no reliance can be placed on this. As far as circumstance No.2 is concerned, Brahm Swarup who was examined as PW/16, in his statement has not even whispered a word that he ever objected to the visits of accused No.2 to 4 to his house. This witness was examined in question answer form and the questions were given to him in writing since this witness was totally deaf and could hardly speak. A question was put to him as to whether the accused used to visit his house. He stated that they used to visit his house daily. He did not state that he objected to their visits. He was also asked as to what the accused persons did when they visited his house. He answered that they used to talk. No person can have any objection to oral talks between his wife and others who admittedly are living in the 8 neighbourhood. Therefore, the second circumstance also does not stand proved. The third circumstance is that the mother of the accused Vinod Kumar Bhatia and accused Kishori Lal and his wife objected to the matter being reported to the police. This allegation seems to be totally false. Dr.Peter Desuza was examined as PW/9. According to him, it was Kishori Lal who had called him from his clinic. He denied the suggestion that it was Rajiv Kumar, grand nephew of the Brahm Swarup who had called him. There was no allegation in the original complaint that these persons had objected to the police being associated. For the first time in the month of September, 1992, almost seven months after the incident took place, such an allegation was made. There is no explanation as to why this fact was not disclosed at an earlier stage. Surprisingly, even PW/9, Rajiv Kumar and PW/13 Nand Kishore have clearly stated that Kishori Lal, accused who allegedly opposed the lodging of the report with the police had also gone to the Police Station when the report was actually lodged. The statement of Nand Kishore does not inspire confidence 9 since he had given a false statement that it was he who called Dr.Peter Desuza whereas it stands proved that the doctor was called by Kishori Lal. Therefore, this circumstance cannot be used against the accused. As far as the 4th circumstance, i.e., extra judicial confession is concerned, according to PW/14 Vinod Kumar, accused Vinod Kumar Bhatia visited his shop in the winter of the year 1992. Thereafter, they purchased liquor and after consuming liquor, in the presence of one Mukhtiar Khan, accused Vinod Kumar Bhatia made an extra judicial confession that he had murdered Radha Devi with the help of Kishori Lal and one more person. PW/14 stated that this confession was made to him 5-6 months prior to the recording of the statement under Section 161, Cr.PC in the month of September, 1992. If the accused had made a confession that he had committed a serious offence of murder, it was the duty of this witness to immediately lodge a complaint with the police. There is no explanation as to why he kept silent for more than six months and suddenly in September, 1992, he decided to make a statement to the police. 10 Therefore, the extra judicial confession cannot be relied upon. The 5th circumstance is the recovery of the rope. Before dealing with the recovery, it would be pertinent to mention that when PW/11 Dr.S.D.Barewal was examined in the Court, the rope was never shown to him nor did he opine that the strangulation was caused with the said rope. Therefore, the rope has not been linked with the offence. Another important aspect is that a ‘Dupatta’ was initially found on the bed of the deceased next to her body and there was a loop in the dupatta. This dupatta was taken into custody by the police. It was the duty of the prosecution to have proved that whether it was the dupatta or the rope which had been used for strangulating the deceased. The prosecution has miserably failed to perform this duty. Even with regard to the recovery itself, the same is not free from doubt. The recovery was effected more than six months after the incident. Why would the rope be kept for six months in the verandah when the accused had more than sufficient time to throw away the same. When the rope was 11 recovered, again the persons who were associated as witnesses are PW/9, Rajiv Kumar, grand nephew of Brahm Swarup and PW/12 Nand Kishore, nephew of Brahm Swarup. Why could the Investigating Officer not associate other persons from the locality especially when the whole case against the accused was based on the statement of Vinod Kumar, PW/14 and Rajiv Kumar, PW/9. They should have tried to get some other independent witnesses for the recovery. This recovery is, therefore, also doubtful. None of the circumstances relied upon by the prosecution stands proved and, therefore, the learned Trial Court was fully justified in acquitting the accused. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 20th April, 2010 (Rajiv Sharma) (m) Judge 12