IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.421 of 2005 Decided on : August 12, 2009 Raj Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Anup Chitkara & Ms Nidhi Chawla, Advocates. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Raj Kumar has been convicted of offence, under Section 302 of the Indian Penal Code, and sentenced to undergo imprisonment for life and pay a fine of Rs.50,000/-, for allegedly murdering a young man, named Rishu Kumar alias Vikki, by the Sessions Court, vide judgment dated 22nd August, 2005. He has filed the present appeal against the said judgment 2. Prosecution story, which has led to the conviction and sentencing of the appellant, as aforesaid, may be noticed. Deceased Rishu Kumar’s father, Nand Lal, was employed in Kandi Project at Hishiarpur. He died in Whether reporters of the local papers may be allowed to see the judgment? …2… harness. A sum of Rs.1,13,000/- was paid to the mother of the deceased, by the employer of the father of the deceased, by way of terminal benefits. The money had been paid by transfer into a Bank Account, in the name of the mother of the deceased in a Bank at Gagret. On 12th January, 2004, mother of the deceased, namely PW-4 Nirmala Devi, withdrew a sum of Rs.60,000/-, out of the aforesaid amount of Rs.1,13,000/-. On 14th January, 2004, the appellant, who was then working as a Postman, visited the house of the deceased to collect monthly instalments of money from two aunts of the deceased, for deposit into their Recurring Deposit Accounts. Mother of the deceased expressed to the appellant her desire to deposit a sum of Rs.50,000/- in the Post Office. Appellant told her that it would be better if she deposited the money through some agent, because in that situation the agent would be getting some commission and out of that a portion of the commission would be paid to her. Mother of the deceased agreed to that. Appellant then gave Form Ex. PB to the mother of the deceased and asked her to put her signatures at four places. He also required the mother of the deceased to put her specimen signatures on a plain paper piece, Ex. PC. The form and the paper sheet, containing signatures of the mother of the deceased, were left with the mother of the deceased and she was told that she need not come to the Post Office herself and instead could send her son, i.e. the …3… deceased, to the Post Office at Gagret, on the next following day, alongwith the said papers and the money. 3. On the next day, i.e. 15th January, 2004, deceased left his house with Form Ex. PB, paper sheet Ex. PC and an amount of Rs.50,000/-, and some other papers, which, after getting some changes made at Tehsil office, Amb, were to be submitted to the employer of his deceased father, for seeking employment on compassionate grounds. According to the prosecution, when the deceased met the appellant, the latter took him to a hand pump, where three-four pills were administered to him. Those pills intoxicated the deceased. Appellant separated the handle of the hand pump and took the deceased to a lonely place about half a kilometer away and there he dealt a few blows of handle on his head, neck and other parts of the body and killed him. This the appellant did, according to the prosecution, to rob the deceased of the money, which he was having. 4. On 15th January, 2004, the deceased, in addition to visiting the present appellant, was supposed to have gone to Court complex at Amb to get some papers for seeking employment on compassionate grounds prepared and thereafter he was supposed to go to Hoshiarpur to submit those papers to the employer of his father. When deceased did not return till late in the evening on 15th January, 2004, his mother informed her husband’s elder …4… brother Dilbagh Singh (PW-6), who scolded her for having sent the deceased all alone, with huge amount of money. 5. Next day, i.e. on 16th January, 2004, dead body of deceased Rishu Kumar was spotted by PW-3 Satish Kumar, at a place known as Chhajju Ka Gharat, in the area of village Gagret. He informed the police telephonically. Police reached the spot. By that time, several persons, including PW-1 Ashwani Kumar, had gathered at the place, where the dead body had been spotted. PW-1 Ashwani Kumar identified the dead body to be that of deceased Rishu Kumar. Police recorded the statement of PW-1 Ashwani Kumar, under Section 154 of the Code of Criminal Procedure. The same is Ex. PA. It was sent to the Police Station for registration of case. Case was formally registered, under Section 302 of the Indian Penal Code, vide FIR Ex. PU. 6. Initially, the police did not get any clue. It suspected PW-6 Dilbagh Singh, an elder brother of the father of the deceased, as also the present appellant. Both of them were arrested on 28th February, 2004. Police remand of both of them was obtained. Magistrate remanded them in police custody upto 4th March, 2004. PW-6 Dilbagh Singh was discharged during investigation. The present appellant allegedly made two disclosure statements, one on 29th February, 2004 and the second on 1st March, 2004. Pursuant to the first disclosure statement, …5… made on 29th February, 2004, Voter Card (Ex.P-10) of the father of the deceased pasted in a rexine folder (wrongly termed as purse in the record and the judgment of the trial Court) and one partly burnt affidavit Ex. P-23 (not available on record), were recovered. These two items had allegedly been buried by the appellant in a field. In pursuance of the second statement, handle of hand pump, which is Ex. P-17, was recovered from the wild growth of reed plants from near the place where dead body was found. All the three articles were made into parcels and the parcels were sealed on the spot. 7. Further case of the prosecution is that marriage of appellant’s younger brother was to take place on 7th February, 2004 and to meet the expenses of that marriage he had borrowed a sum of Rs.40,000/- from PW-24 Krishna Devi, wife of PW-33 Som Nath. Appellant had promised to PW-24 Krishna Devi that the money would be returned after the marriage, as one fixed deposit in the name of his mother was likely to mature sometime after the marriage. Appellant, however, returned the money to PW-24 Krishna Devi on 3rd February, 2004, and on the next following day she deposited the same in the account of PW-33 Som Nath, with Post Office Gagret, per papers Ex. PX, Ex. PR and Ex. PS. Appellant is also alleged to have lent a sum of Rs.10,000/- to PW-20 Pritam Chand, one of his brothers-in-law, on 9th February, 2004. …6… 8. Trial Court charged the appellant with offence, under Section 302 of the Indian Penal Code. Prosecution examined a number of witnesses to prove the charge. During the course of trial PW-20 Pritam Chand, brother-in- law of the appellant, denied that an amount of Rs.10,000/- had been lent to him by the appellant. Trial Court concluded that the following circumstances were proved by the evidence led by the prosecution: “i) The accused, a resident of the same village as the deceased, was a postman at the material time. (ii) Nirmala Devi’s husband Nand Lal who was serving in Kandi Project, Hoshiarpur, died about six months anterior to the demise of Rishu Kumar, and his service dues (Rs.1,13,000/-) were remitted to his wife’s account in the Gagret branch of State Bank of India. On January 12, 2004, she withdrew from the said account Rs.60,000/-. (iii) On January 14, 2004, the accused visited Nirmala Devi’s house to collect monthly payments in respect of RD accounts of Neelam and Kamlesh Kumari. At the time, Nirmala Devi informed him of her intention to deposit Rs.50,000/- with the post office. He, however, advised her against depositing the amount in a branch post- office, saying that way she would not be getting any commission, and suggested …7… that in case the amount was deposited with a sub post office through an agent, she would be getting commission. He then obtained her signatures on certain documents including an application form for opening an account Ext. PB, and told her that she need not come and that the amount of Rs.50,000/- be sent to him through the deceased the next morning. The deceased was required to meet him at the village well at about 9-15 am on January 15, 2004. (iv) On January 15, 2004, the deceased took with him Rs.50,000/- and certain papers, including a purse-cum-identity card of his father Ext.P10 and met the accused at the village well at the stipulated time. The accused took him on a scooter towards Gagret. (v) The deceased was seen at Kaloh Chowk at about 12.30/1.00 P.M. by Vishal (PW12). There he was waiting for the accused. (vi) The amount of Rs.50,000/- the deceased was carrying with him was never deposited with any post-office nor was the same found on his dead body. (vii) Rishu Kumar’s dead body was found in an isolated place near Chhaju-Da-Ghraat in Swan Bela, Gagret on January 17, 2005. There were injuries on the head of the body, which in the opinion of Dr. Indu …8… Bhardwaj (PW.25) could be caused with the handpump handle Ext.P.17. The antemortem head injuries were opined to be the cause of Rishu Kumar’s death. (viii) There existed a handpump on Amb-Indora read and its handle was found missing in January-February, 2004. While in custody, the accused on March 1, 2004, gave a disclosure statement that he had concealed a handpump handle near Chhaju-Da-Ghraat in Swan Bela area, Gagret, and that he could get the same recovered. Following the disclosure, he led the investigator to the recovery of a handpump handle Ext.P.17 from near Sarkanda bushes near Chhaju-Da-Ghraat in Swan Bela, Gagret. (ix) While in custody, the accused on February 29, 2004, gave a disclosure statement that he had set afire a purse and some papers, including an affidavit, concealed the half burnt purse and the fully burnt affidavit under the soil in his field, and that he could get the same recovered. Following this disclosure, he led the police to the recovery of a half burnt purse-cum-identity card of the deceased’s father Nand Lal Ext.P.10 and a burnt affidavit Ext.P.13 from under the ground in his field. (x) The accused owed to his godbrother Som Nath (PW.33) Rs.50,000/- and promised to pay this amount after the marriage of his …9… brother which was to be solemnised on February 6/7, 2004. He, however, repaied Rs.40,000/- to Som Nath’s wife Krishna Devi (PW.24) on February 3, 2004, that is, before the marriage of his brother and after the killing of Rishu Kumar.” 9. According to the trial Court, the aforesaid circumstances lead to only one and only one hypothesis that the appellant killed the deceased and to no other hypothesis. 10. We have been taken through the entire evidence by the learned counsel for the appellant. Also, we have heard the submissions made by the learned counsel for the appellant and the learned Assistant Advocate General. 11. We may state at the very outset that the appellant is 35 years old. He is afflicted by polio. His right upper limb and left lower limb are affected to the extent of 55 per cent, as per Certificate Ex. DW-1/A, proved by DW-1 Raghunath Singh, an official from the Office of Chief Medical Officer, Una. Deceased was a young man of 24 or 25 years. Prosecution’s story was that the appellant, before committing the crime, administered some pills (numbering three or four) to the deceased, which rendered him intoxicated and when he was in state of intoxication, appellant pulled him to a lonely place and there he hit him with the handle of hand-pump. There is absolutely no evidence in support of the allegation that the appellant …10… administered some intoxicant, in the form of pills, to the deceased. 12. By making the aforesaid allegation, the prosecution, it appears, wanted to pre-empt the likely defence that the appellant, owing to his physical disability, was not in a position to commit the crime. Prosecution’s failure to prove this allegation, in our opinion, weighs in favour of the appellant and against the prosecution. It is in this background that the evidence of the prosecution is required to be appreciated. 13. Trial Court has listed ten circumstances, as reproduced above, which, according to it, stand proved and lead to one and only one conclusion that the appellant is guilty of offence of murder of Rishu Kumar and to no other hypothesis. 14. First two circumstances that the appellant is the resident of the same village as the deceased and was working as Postman, at the material time and that father of the deceased died while serving in Kandi Project at Hoshiarpur and on account of his death a sum of Rs.1,13,000/- was paid to deceased Rishu Kumar’s mother, in no way connect the appellant with the commission of the crime. 15. Third circumstance that on 14th January, 2004, appellant went to the house of the deceased, where latter’s mother told him that she wanted to deposit a sum of …11… Rs.50,000/- with the Post Office and the appellant advised her to make the deposit through an agent, as by that process she would be getting a part of the commission from the agent, is proved. It is also proved, beyond doubt, by the prosecution that the appellant had obtained the signatures of the mother of the deceased on Form Ex.PB and told her that she need not come personally to the Post Office and could send her son (the deceased) with the money and the form and specimen signatures, taken on a separate piece of paper, to the Post Office, on the next following day, i.e. 15th January, 2004. Reference in this behalf may be made to the testimony of PW-4 Nirmala Devi, mother of the deceased, and PW-5 Sunita Kumar, a sister of the deceased. Both of them testified, in no uncertain terms, that on 14th January, 2004, appellant visited their house to collect money for deposit into the Recurring Deposit Accounts of the wives of two brothers of the father of the deceased where he was consulted by PW-4 Nirmala Devi about deposit of Rs.50,000/- in the Post Office. The witnesses have testified that the appellant advised that the money should be deposited through an agent and required PW-4 Nirmala Devi to sign Form Ex. PB and also to put her specimen signatures on a piece of paper Ex. PC. It is also testified by them that the appellant told that Nirmala Devi herself need not visit the Post Office at Gagret and instead could send her son (the deceased) with …12… the money, Form Ex. PB, specimen signatures Ex.PC, on the next following day and he would be waiting for him at 9.15 a.m. at a specified place. The testimony of the two witnesses is corroborated by the fact that Form Ex. PB and specimen signatures Ex. PC were recovered from the dead body, on the very day of the dead body was spotted, i.e. 16th January, 2004, per seizure and recovery Memo Ex. PF and testimony of PW-7 Madhusudan, as also the Investigating Officer of the case, namely PW-34 Kailash Walia. 16. Appellant has denied that he went to the house of the mother of the deceased and made her to sign the aforesaid two documents Ex. PB and Ex. PC or suggested to her that she sent her son Rishu Kumar (the deceased) to the Post Office, on the next following day, with the money and the documents. The effect of this denial is no more than that the appellant has not been able to make any dent in the evidence of the prosecution, with respect to this circumstance. 17. It also stands proved by the testimony of PW-4 Nirmala Devi, as also by the fact of recovery of Form Ex. PB and paper sheet, containing specimen signatures, Ex. PC, from the pocket of the pants worn by the dead body, that on 15th January, 2004, deceased left his house with a sum of Rs.50,000/-, for being deposited at Sub Post …13… Office, Gagret. Thus, Circumstance (iv), listed by the trial Court in para-30 of its judgment, also stands proved. 18. Circumstance (v) that deceased was seen waiting for the appellant at 12.30 or 1 p.m. stands proved, by the per testimony of PW-12 Vishal. The witness very categorically stated that he was waiting for his father at Kaloh Chowk, on 15th January, 2004, between 12.30 p.m. and 1 p.m., when deceased was also present there, who told that he was waiting for the appellant. There does not seem to be any reason to disbelieve the testimony of the witness, especially when the witness was not subjected to cross-examination at all. However, this circumstance does not, in any way, point to the guilt of the appellant nor does it fit into the chain of circumstances sought to be formed by the prosecution. The reason is that the deceased was Lateron seen in the Court premises at Amb, between 3 p.m. and 4 p.m. by PW-10 Achhru Ram, Stamp Vendor, and PW- 9 Om Prakash. 19. PW-10 Achhru Ram stated that the deceased purchased a stamp paper from him between 3 p.m. and 4 p.m., on 15th January,2 004, about which he made an entry in his Register at Serial No.2747 and obtained the signatures of the deceased against that entry. PW-9 Om Prakash stated that the deceased got an affidavit typed on a stamp paper on 15th January, 2004, which was attested by Shri Rakesh Kumar, Oath Commissioner. It can legitimately …14… be inferred that the affidavit was typed on the same stamp paper, which the deceased earlier purchased between 3 p.m. and 4 p.m. from PW-10 Achhru Ram. The fact that deceased was in Court premises at Amb between 3 p.m. and 4 p.m. renders Circumstance (v) totally irrelevant and not fitting in as a link in the chain of circumstances. 20. Circumstance (vi), viz. amount of Rs.50,000/- had not been deposited with any Post Office, in no way suggests that the money was taken away from the deceased or removed from his dead body by the appellant, especially when the money has not been recovered from him. Thus, this circumstance also does not fit into the chain of circumstances by which the guilt of the appellant is sought to be established. 21. We find it difficult to agree with the finding of the trial Court, with regard to Circumstance (vii), to the effect that handle Ex. P-17 was used to cause the fatal injury on the left temporal region of the deceased. Learned trial Court has referred to the statement of Dr. Indu Bhardwaj (PW-25) to come to the conclusion that the injury could have been caused by means of handle Ex. P-17. An overall reading of the statement of this witness shows that she is not sure whether the injury could have been caused by means of this weapon or not. Length of the injury, which is in the nature of cut wound, is 12 cm. The handle, which is 42 inches or say about 107 cm approximately, in …15… length, is blunt almost throughout its length, except 2-3 cm, per testimony of PW-25 Dr. Indu Bhardwaj. The witness admitted that 12 cm cut wound cannot be caused by this weapon, with a straight hit. According to her, for causing such a long cut wound, by means of handle P-17, the blow should be given in such a way that the sharp portion of the handle, after hitting the head at the starting point of the wound, is pulled down with the same force and pressure, as is applied initially. At the same time, the doctor testified that it was impossible to cause such a long cut wound, by means of weapon Ex. P-17. Now, when a witness makes varying statements, with regard to a fact, the statement, which is favourable to the accused is required to be given the same weightage as the other one(s). 22. Circumstance (viii) is also not proved to the hilt. Only one witness was examined by the prosecution, namely PW-23 Kamal Kishore, whose statement is quite vague. He stated that the handle of the hand-pump, in question, was found missing in January-February, 2004. From his statement, it cannot be made out whether the handle was found missing, for the first time on or around the date when the murder took place or after that. May be that it was found missing in the last week of January, i.e. after the murder took place, or only in the month of February and that too at its fag end. As a matter of fact, after the handle …16… of the hand-pump was missing, people of the area were supposed to have complained to the concerned authorities immediately, as the pump is used by the general public, per statement of PW-23 Kamal Kishore himself. It is quite likely that the witness saw the handle of the pump missing only on 29th February, 2004, when it was allegedly recovered, pursuant to the disclosure statement of the appellant and if that is so, there cannot be any escape from the presumption that the recovery is stage managed. 23. Otherwise also, recovery was made from a public place, accessible to the public. It was lying in Sarkanda bushes (reed plants), only 25-30 metres away from the place where dead body was spotted, per testimony of PW-7 Madhusudan. It has come in the evidence that when the dead body was spotted, several persons from the area had gathered. Dead body was found lying near the reed plants, per testimony of PW-2 Gopi Ram. Now, when several persons had gathered around the reed plants (from where the handle Ex. P-17 was recovered, allegedly at the instance of the appellant) on 16th January, 2004, when the dead body was spotted, it can legitimately be presumed that had the handle been lying in those reed plants, it could have been spotted by someone from amongst those, who had gathered on the spot on 16th January, 2004. This fact also suggests that the recovery had been planted. In any case, when the statement of PW-25 Dr. Indu Bhardwaj, as …17… referred to while dealing with Circumstance (vi) indicates that the fatal injury could not have been possible with the handle, this circumstance becomes irrelevant and insignificant. 24. Circumstance (ix) can also not be said to have been proved, beyond reasonable doubt. According to the prosecution, Nand Lal’s Voter Card Ex. P-10 and a burnt affidavit Ex. P-23 had been recovered at the instance of the appellant from the field, where they were lying buried. Voter Card Ex. P-10 and the affidavit had been sealed in a parcel, on the spot, after the recovery, per testimony of PW-14 Naresh Kumar, PW-18 Sushil Kumar and PW-34 Kailash Walia. The sealed parcel was produced in the Court during trial and it was opened with the leave of the Court. However, PW-5 Sunita Kumari, a sister of the deceased, says that when she had been visiting the Police Station, after the arrest of her father’s elder brother Dilbagh Singh (PW-6), Voter Card Ex. P-10 was shown to her by the Police people. PW-6 Dilbagh Singh was arrested on 28th February, 2004 and discharged on or around 4th March, 2004. That means Sunita Kumari saw the Voter Card Ex. P-10, bearing the photograph of her father, at