HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.69 of 1997. Decided on: July 05, 2010 State of H.P. …Appellant. VERSUS Rama Nand & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.Advocate General. For the respondents: Mr.V.S.Chauhan, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 22nd August, 1996, passed by learned Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No.42- N/7 of 1995, thereby acquitting the respondents / accused for offence under Sections 302, 201 read with Section 34 of the Indian Penal Code. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the prosecution case. The facts, as Whether the reporters of the local papers maybe allowed to see the judgment? …2… per the prosecution story, are that on 3.9.1994, Mansha Tiwari (deceased) was found lying in unconscious condition with injuries, in the maize field of Darshan Lal on the road leading to village Gada Bhudi. On receipt of such information from Gopal Chand, Ram Chander, the then Pradhan of Gram Panchayat, Bankla went to the spot and finding Mansha Tiwari lying there naked in injured condition and accordingly informed the police at Nahan on phone from Shambuwala. The police reached the spot at 12.30 noon and started preparing Ruka but in the meantime Mansha Tiwari breathed his last and died. A case under Section 302, 201 read with Section 34 IPC was registered at Police Station, Nahan. 3. During investigation, it was found that on the evening of 2.9.1994, the deceased, along with one Ramesh, had visited the house of Rama Nand (accused) in village Rukhari and consumed liquor. Thereafter, the deceased left the house of the accused Rama Nand but the deceased again came to the house of the accused at night. Since the deceased was under the influence of liquor, firstly he fell on the Charpai (cot) lying in the courtyard of the house of the accused and thereafter when the accused opened the door, deceased straightaway went …3… to the Charpai (cot) of Satya Devi (accused) and fell there. Accused Rama Nand inflicted injuries on the person of the deceased with the blunt side of drat and thereafter both the accused undressed Mansha Tiwar and then threw him in the field of Darshan Lal on the road leading to village Gada Bhudi which is at a distance of 400 – 500 yards across the Nullah from the house of the accused. Wrist watch of the deceased was recovered at the instance of accused Rama Nand and on his disclosure statement weapon of offence (drat) with blood stains was recovered from the house of the accused. Blood stains were also found on the wall of the house of the accused and when accused Satya Devi was arrested, she allegedly consumed Organo- Phosphorus. Both the accused were charged under Sections 302, 201 read with Section 34 IPC. The case was committed for sessions trial. 4. In order to prove its case, the prosecution has examined as many as 16 witnesses, whereas, the respondents / accused, in their statement under Section 313 Cr.P.C., has denied the prosecution case. On the scrutiny of prosecution witnesses and material on record, we notice that PW-1 Dr.G.Narang, Radiologist, District Hospital, Nahan, had noticed the following injuries on the person of the deceased:- …4… 1) There was an lacerated would size about 1 ½”X1/2”X1” deep running from the medial end of right eye-brow; 2) Another lacerated wound size about ½”X1/2”X1” above the wound No.1. Distance between both 1. 3) Corresponding fracture of frontal bone in relation to the above injuries. On opening the skull, chocolate coloured blood collection was found at the frontal region. Fracture of right parietal bone with collection of the blood in the extra dural region vis-à- vis duramater and brain matter had torn.” 5. As per the opinion of PW-1, the injuries on the person of the deceased could be sustained by fall and as per the opinion of PW-1 the deceased died due to extra dural hemorrhage caused by fracture of skull. PW-2 Ram Chander (Ex-Pradhan), PW-3 Om Parkash, Assistant Store Keeper, PW-4 Ishwar Chand, Patwari, PW-5 Rajinder Singh, PW-6 M.P.Negi, Sr.Time Keeper, Steel Strips, Dhaula Kuan, PW-7 Maninder Singh, Sr.Manager (Stores), Steel Strips Alloys, Dhaula Kuan, PW-8 Bhagti Devi, PW-9 Gopal, PW-10, Head Constable Bir Singh, PW-11, Head Constable Choli Ram, IRB Una, PW-12 Deep Chand (son of accused Rama Nand), PW-13 Head Constable Kundan Singh, PW-14 (Retired Constable) Raj Kishan, …5… PW-15 Roshan Lal and PW-16 SI/SHO Jai Chand, (Incharge, Police Station, Renuka Ji)were examined by the prosecution. 6. PW-2, Ram Chander, ex-Pradhan, on being informed, went to the spot alone on motor-cycle and noticed that Mansha Tiwari (deceased) was lying naked near the fence near the thoroughfare and his face was swollen and injured and PW-2 informed the police on phone. Police started investigation and statement of PW-2 Ext.PC was recorded. PW-2 has further stated that it was at the instance of Rama Nand accused in police custody, a wrist watch Ext.P-1 was recovered from the bushes near the place where the dead body of the deceased was lying. The blood stained earth and pebbles lying on the thoroughfare were also taken into possession and police also recovered one male shirt and another of female which were already washed, however, had some brownish spots, both were taken into possession and were sealed vide recovery memo Ext.PK. Police party consisting of 5 – 6 persons, including lady police, used to visit village Rukhari, where there were 50 - 60 houses. PW-2 has further stated that house of the accused was across the Nullah where the dead body of the deceased was lying and the house of the accused was 200 – 250 yards and the watch Ext.P-1 was lying at a distance …6… of 10 – 12 feet from the place where the dead body of the deceased was lying. 7. PW-3, Om Parkash, Assistant Store Keeper, has stated that on 2.9.1994 at about 7.45 PM when he was going back to his house he alighted from the bus at Rukhari. He noticed Mansha Tiwari and Ramesh Chand under the influence of liquor. Mansha Tiwari was sitting on the road, whereas, Ramesh Chand was trying to make him stand. 8. PW-4, Ishwar Chand, Patwari, who prepared the map of the field and issued the copy of Jamabandis Ext.P-4 and Ext.P-5. PW-5, Rajinder Singh, Cook in the Police Mess, Police Line, Nahan, has put his signatures on Ext.PM vide which wrist watch was recovered concealed in the bushes. PW-6, P.M.Negi and PW-7, Maninder Singh, however, are not of much importance to the prosecution. 9. PW-8, Bhagati Devi, knew Satya Devi accused and has only stated that Satya Devi was being taken by the police to Nahan and her children be looked after. However, PW-8 has denied that Satya Devi had consumed anything in her presence. 10. PW-9, Gopal, has stated that he had gone to call Ram Chander, Pradhan at the instance of Jai Singh and Roshan Lal informing that the deceased was lying near the orchard of Darshan lal. PW-10, Bir Singh and PW-11 Head Constable Choli Ram, while …7… discharging their official duties, have supported the prosecution case to the extent that they discharged the work as assigned to them. PW-12, Deep Chand, son of Rama Nand (accused) had been declared hostile and nothing could be derived from his statement. 11. PW-15, Roshan Lal, has stated that he was called on the spot by the police on 4.9.1994. The blood stained Drat was lying with the police and then his signatures were obtained on the recovery memo Ext.PR. In cross examination, PW-15 has stated that on 2.9.1994 at about 8 or 8.30 PM he had seen Mansha Tiwari (deceased) going on the Vicky Scooter of Ramesh Chand and they fell on some places also but he did not remember the places. 12. PW-16, SI/SHO, Jai Chand, Incharge, Police Station, Renuka Ji, while conducting the investigation had endeavored to support the prosecution case and stated that during investigation, involvement of accused was found and on going to the house of Rama Nand (accused), a blood stained Drat was recovered lying near the Charpai of his room which was taken into possession vide recovery memo Ext.PR and Rama Nand (accused) was arrested on 5.9.1994 and during investigation on 7.9.1994 he deposed that he had kept concealed the watch of Mansha Tiwari in the …8… bushes near the place where dead body of the deceased was lying. PW-16 has also stated that during interrogation, the accused, though handicapped, however, has demonstrated picking up and carrying the deceased. During interrogation, blood stained clothes, which consisted one male shirt and one female shirt, were recovered from accused Satya Devi which were already washed but there were spots of the blood. 13. On scrutiny of the prosecution witnesses and material on record, it has been noticed that the prosecution case entirely is not a case of direct evidence but of circumstantial evidence which is based only on the recovery of wrist watch (Ext.P-1), allegedly belonging to the deceased, disclosure statement of accused Rama Nand, recovery of blood stained drat from the house of the accused vis-à-vis the medical evidence indicating that the accused had inflicted the injuries on the person of the deceased with drat and thereafter threw his dead body in the field of Darshan Lal with a view to conceal the evidence. In order to prove such prosecution case, we analyze the following aspects; the recovery of wrist watch, recovery of blood stained drat Ext.P-32, recovery of blood stained wall of the house of the accused, blood stained shirts of the accused, and conduct of accused Satya …9… Devi while consuming organo phosphorous and medical evidence. 14. Though at the instance of accused Rama Nand, wrist watch was recovered, however, from the testimony of Rajinder Singh, PW-5, material contradiction is emanating that disclosure statement of Rama Nand (accused) was made between 12 noon to 2 PM on 7.9.1994 and PW-2, Ram Chander, has stated that wrist watch Ext.P-1 was recovered between 11 AM to 12 noon. However, it is important to note that the wrist watch Ext.P-1 could be said to have been recovered before making the disclosure statement of the accused. During the entire occurrence, no independent witnesses have ever been examined to support the prosecution case, despite having very thickly populated village area. Though the wrist watch, Ext.P-1, was lying at a distance of 10 to 12 feet from the place where the dead body of Mansha Tiwari was lying and during investigation right from 3.9.1994 to 7.9.1994. The wrist watch Ext.P-1 could not be traced out, as anybody could have taken the wrist watch without informing anybody, as such, recovery of wrist watch, at the instance of accused, becomes doubtful. Another important point which requires consideration is that no endeavour was made by the prosecution to prove that the wrist watch, already recovered, was …10… relatable to the deceased Mansha Tiwari, from this point of view also, the recovery of wrist watch Ext.P-1 is no help to the prosecution case. 15. Ext.P-32, Drat, allegedly recovered from the house of the accused on 4.9.1994, in the presence of Roshan Lal (PW-15), vide recovery memo Ext.PR, has been taken to be of vital help by the prosecution but neither the blood stains on the drat were examined. Blood group was also not disclosed and link of its use in the said occurrence was also not proved by the prosecution. In absence of such endeavour, recovery of drat Ext.P-32 is also of no help to the prosecution and to make a chain and to link the offence and injury with accused and the manner of assault. In our considered view, Drat (Ext.P-32) cannot be said to be used for inflicting the injuries on the person of the deceased, more particularly from the blunt side of the drat avoiding using the sharp side of the drat. Recovery of blood stains from the wall of the house of the accused, recovery of shirts (male and female), Ext.P-2 and Ext.P-3, and blood stains on these shirts, though washed, were also not related with the blood group of the deceased and with the report of the Chemical Examiner. All these aspects, relied upon by the prosecution, are not much help to the prosecution. …11… 16. We are of the considered view that the learned Sessions Judge has rightly arrived at the conclusion that the verdict of High Court in State of H.P. versus Gulam Hassain & Others, 1995(2) C.L.R. 325 relating to the circumstantial evidence was of no help to the prosecution rather it protects the interest of the accused and makes the entire prosecution case doubtful. At the time of arrest on 7.9.1994, accused Satya Devi was alleged to have consumed some poison (DDT) in a tumbler and she was said to have proclaimed that her children to be taken care of. However, on medical examination and scrutiny of prosecution witnesses, nothing has come on record and cause of consumption of DDT could not be linked with the offence and the role of Satya Devi in the present case as there was no smell of the poisonous solution from the mouth of the accused and nothing was found in the medical report. 17. We are of the considered view that the prosecution has miserably failed to bring home the guilt to the accused and has also failed to prove its case beyond reasonable doubt. As a result, we find no scope for interference in the impugned judgment and the Criminal Appeal, being devoid of any merit, is accordingly dismissed. …12… 18. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B.Misra ), J. July 05, 2010. ( V.K.Sharma ), J. (soni) …13…