IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 331 of 2001 Reserved on: 24.6.2011 Date of Decision : 9th September, 2011 State of H.P. …Appellant. Versus: Paras Ram …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Rajesh Mandhotra, Dy. A. G. For the respondent : Mr. M. L. Brakta, Advocate Sanjay Karol, J. For an offence, which is alleged to have been committed on 1/2.9.1999, accused was put to trial. In terms of judgment dated 20.1.2001 passed by Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, in Sessions Trial No.1 of 2000, titled as State of H.P. vs. Paras Ram, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that deceased Hansu Devi alias Ishwari Devi was married to accused Paras Ram some time in the year 1971-72. Accused was serving in the armed forces and retired in March 1999. In the year 1992, accused had 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 physically assaulted his wife as a result of which she was hospitalized. With the intervention of real brothers of the deceased Sh. Dasmi Ram (PW-1) and Sh. Daulat Ram (PW-7) and also an independent witness Sh. Raftar Singh (PW-19), accused had entered into a compromise. He not only apologized but admitted his guilt and by way of written compromise (Ext.PW-1/D/Ext.PW-13/A) agreed not to subject his wife to further cruelty. On 1.9.1999 accused, deceased and their children, including Swantatar Kumar (PW-4) and one Ms. Shanta Devi (PW-3), daughter of elder brother of the accused, who also was being brought up by them, had their meals in their house at village Dogari and retired for the night. In the morning of 2.9.1999, PW-4 saw the deceased lying dead on the cot in the bed room of the accused. PW-3 was also present at that time. Children, including PW-3 & PW-4, started raising hue and cry which attracted attention of the villagers. PW-1, who was living in village Charmal at a distance of 300 yards from the house of the accused, after hearing cries of the children rushed to the spot alongwith his wife Smt. Maya Devi. He found the body of the deceased lying on the bed and marks of strangulation around her neck. Blood was also oozing from her mouth. Accused was nowhere to be seen. He made inquiries from the neighbours i.e. brother of the accused, who informed him that the accused was present in the house the previous night. Same day PW-1 informed Sh. Mangat Ram (PW-2), Up-Pradhan of Gram Panchayat, Khanag about the incident, who advised to report the 3 matter to the police. Accordingly, PW-1 walked upto the nearest Police Post which was at a place known as Anni and lodged F.I.R. (Ext.PW-1/A) under Section 302 IPC on 3.9.1999 at about 4.15 a.m.. ASI Kanshi Ram (PW-23) commenced investigation by proceeding to the spot. He associated photographer Bhagwan Dass (PW-22) from Anni alongwith himself. On the spot photographs (Ext.P-1 to P-20) were taken. Mattresses (Ext.P-27, P-28), bed sheet (Ext.P-26), one electric wire (Ext.P-29 & P-30), some medicines (Ext.P-31) were recovered by the police from the spot in the presence of Sh. Mangat Ram (PW-2) and PW-7. Inquest report (Ext.PW-1/B) was prepared on the spot and dead body sent for post mortem examination, which was conducted by Dr. R. L. Gupta (PW-10) and Dr. Mohan Lal (PW-14) and post mortem report (Ext.PW-10/B) obtained which revealed that accused had died of esphyxia caused by strangulation. Investigation revealed that accused was present in his house on 1.9.1999, which fact was revealed by PW-3, PW-4, PW-7 and his son Om Parkash (PW-24). Allegedly accused had purchased certain grocery items from the shop owned by PW-7 and run by PW-24 in a nearby village. Police suspected that after murdering his wife accused had absconded from the spot. As such, he was arrested on 6.9.1999 at Anni, where he was interrogated by PW-23. Interrogation revealed that after murdering his wife, accused had left his house in the early hours of 2.9.1999 towards Kullu and Mandi. On 5.9.1999 he stayed at Deepak Guest House, Rampur Bushahr, where he falsely entered his 4 name in the register as Suresh Thakur. This was done in the presence of Sh. Jai Ram (PW-12), Manager of the Guest House. Accused requested him to suggest a name of a lawyer as he had wanted to seek legal advise. Accordingly, name of Sh. Keshav Thakur, Advocate was suggested. During interrogation, accused confirmed having purchased grocery items from PW-24 on 1.9.1999. However, he took up a plea that his wife had committed suicide and not that he had murdered her. Further investigation was handed over by ASI Kanshi Ram (PW-23) to SI Kashmir Singh (PW-20) on 8.9.1999, before whom the very same day, accused made a disclosure statement (Ext.PW-2/D) to the effect that he could get the rope, with which he had murdered his wife, recovered. PW-20, in the presence of PW-2 & PW-7 recovered the rope (Ext.P-32) from the spot. PW-20 also took into possession, from the spot, a note book (Ext.P-34) allegedly containing hand writing of the accused. He also took into possession one envelope (Ext.P-33). Compromise (Ext.PW- 1/D/PW-13/A) was taken by the police from the possession of PW-1. During investigation police also took specimen signatures and hand writing of the accused (Ext.PW-5/B-1 to PW-5/B-10), in the presence of the Chief Judicial Magistrate, Anni, Sh. Rajesh Tomar (PW-5). 3. Documents (Ext.PW-5/B-1 to Ext.PW-5/B-10 and Ext.PW- 13/A/Ext.PW-1/D) were sent for examination to the hand writing Expert Dr. B.A. Vaid (PW-13), according to whom, hand writing on both sets of documents appeared to be of the very 5 same person. Investigation revealed that accused alone had murdered his wife and thereafter absconded from his house. 4. With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed an offence punishable under Section 302 IPC, to which he did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined 24 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded in which he took up a plea of false implication. 6. The Court below acquitted the accused of the charged offence, hence the present appeal. 7. The fact that deceased had died is not in dispute. From the testimonies of Dr. R. L. Gupta (PW-10) and Dr. Mohan Lal (PW-14) as also the post mortem report (Ext.PW-10/B), it stands proved that deceased had died as a result of strangulation. 8. There is no eye witness to the incident. Prosecution case primarily rests upon circumstantial evidence. It is a settled position of law that when the prosecution case rests purely upon circumstantial evidence, prosecution has to prove beyond reasonable doubt the fact that the accused “must be” and not merely “may be” guilty before a Court can convict him. Distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Every possible hypothesis except the one to be proved must be excluded, and there must 6 be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion, consistent with the innocence of the accused and must be shown that in all human probability the act must have been committed by the accused alone. Further circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was in fact committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 9. That the deceased was wife of the accused is not in dispute. There is a dispute with regard to the incident relating to the year 1992. In order to prove this circumstance, prosecution has relied upon testimonies of PW-1, PW-7, PW-19 and document (Ext.PW-1/D/PW-13/A). According to these witnesses, after the accused had physically assaulted the deceased, she was admitted in the hospital for medical treatment at Anni. In their presence, accused admitted his guilt and agreed to mend his ways and not assault his wife in future and consequently executed the aforesaid document. To prove execution therefor, 7 prosecution also took specimen signatures/handwriting of the accused (Ext.PW-5/B-1 to PW-5/B-10), in the presence of PW-5. Signatures/handwriting on both these sets of documents were compared. PW-13 has proved that hand writing on the aforesaid document is of the very same person. Oral testimonies of the prosecution witnesses, to this extent, are worthy of credence. Hence, it stands proved by the prosecution that accused had physically assaulted his wife some time in the year 1992. However, this fact by itself, would not be sufficient to prove the guilt of the accused to the alleged crime. More so, for the reason that none of the witnesses have narrated any incident between the year 1992 and 1999, which would even prima facie show that accused had subjected his wife to cruelty, mental or physical. Even the brothers of the deceased, PW-1 & PW-7, in particular are silent on this aspect of the matter. It is also not the prosecution case that accused had continuously subjected the deceased to cruelty or that relations between the two continuously remained strained or that there was marital discord existing on the date of the alleged crime. 10. According to the prosecution, deceased was present in his house in the night intervening 1st/2nd September, 1999 and after murdering his wife there, absconded in the early hours of 2nd September, 1999. To substantiate this circumstance, prosecution has relied upon testimonies of PW-1, PW-3, PW-4, PW-7 and PW-24. PW-4 is son of the accused. Both he and his cousin Shanta Devi (PW-3), who normally resided with the 8 accused in the same house and in fact was being brought up by the accused and the deceased, have not supported the prosecution case at all. They have, in no uncertain terms, deposed that accused was not present in the house on 1st/2nd September, 1999. According to them, accused had left his house before 1st September, 1999 to purchase a vehicle and gone towards Chandigarh side. Nothing incriminating has been revealed by them. 11. However according to PW-1 & PW-7, when they reached the spot they made inquiries from uncles of the accused, S/Sh. Chuni Lal and Hari Ram and also his brother Sh. Gulab Singh, and were informed by them that accused was present in the house in the night of 1.9.1999. Now these persons have not been examined by the prosecution at all. Why so? has not been explained. Further according to PW-7, he owned a shop in the nearby village which was run by his son “Om Parkash” who also informed him that on 1.9.1999 accused had purchased grocery items from there. In order to corroborate this fact, police has also examined “Om Parkash alias Pammi Thakur” (PW-24). In our considered view, on this point, testimonies of both PW-7 & PW-24 do not inspire confidence. To begin with, PW-7 admits that he did not inform the police about the fact that “Om Parkash” had informed him about the accused having purchased grocery items from the said shop. This witness also admits that police did not interrogate the said “Om Parkash”. This witness also admits that he did not inform the police that Gulab Singh 9 had informed him of having seen the accused in his house on 1.9.1999. Significantly, police has not examined “Om Parkash” in Court. PW-24 in fact is not Om Parkash but Pammi Thakur, another son of PW-7. In fact PW-24 admits that “Om Parkash” is his elder brother. Surprisingly, in Court prosecution has taken a summersault and changed the version by stating that grocery items were purchased from this witness (PW-24) and not “Om Parkash”. Even otherwise testimony of PW-24 does not inspire confidence. He admits that he was never examined by the police nor was his statement ever recorded by them during investigation. This witness further states that prior to the date of his deposition in Court i.e. 1.12.2000, he had not made any statement, though he had informed “others” about this fact. In the same breath, he contradicts himself by stating that he had “not informed others” about the same. But however later on qualifies his earlier version by stating that he had informed his father about the same. For reasons best known to them, prosecution has actually not examined “Om Parkash” in Court. His examination would have only corroborated the version narrated by PW-7 or dispelled the doubt raised by PW-24 that grocery items were in fact sold by him on 1.9.1999 and not his brother Om Parkash. Significantly, PW-1 does not make any mention about this fact. He also does not state that he had himself made inquiries from other persons present at the spot with regard to the presence of the accused. He also does not state that he was informed by these persons that accused had 10 absconded from the spot. According to PW-1, he also did not take any steps to trace the accused. Why so? has not been explained. PW-2 does not state that he had been informed by PW-3 & PW-4 that accused had killed the deceased. He also does not state that PW-1 had informed him about the same. As such, prosecution has failed to prove this circumstance against the accused. 12. In order to prove the fact that on 5.9.1999, accused had stayed at Deepak Guest House, Rampur Bushahr to seek legal advise and there he falsely registered himself as Suresh Thakur, prosecution has relied upon the testimonies of PW-23 and PW-12, who produced copy of the relevant page of the register (Ext.PW-12/A). We find that prosecution has not been able to prove even this circumstance by leading clear, cogent and convincing evidence. According to PW-12, at the relevant time he was working as a Manager of Deepak Guest House, Rampur Bushahr. On 5.9.1999 at about 10 p.m. accused checked in the Guest House and registered his name as Suresh Thakur, son of Sh. Ram Lal. He furnished complete particulars of his residence. Accused wanted to consult a lawyer and in this regard sought his help. Accordingly he recommended name of Sh. Bansi Lal Thakur, Advocate. Now this witness admits that Rajinder, who in fact is the Proprietor of the Guest House, was not present in the hotel at the relevant time. He also admits that he could not identify the visitors after a period of one year. He admits that he was seeing the accused for the first time after a 11 period of one year. If this was so, then how is it that he could identify the accused in Court on the date of his deposition. That apart, according to PW-23, Ext.PW-12/A was handed over to him by the owner of the Deepak Guest House, which fact stands contradicted by PW-12, who states that it was he who had handed over the same to the police. Contradiction stands magnified in view of the fact that owner of the Deepak Guest House has not been examined in Court. Significantly, Ext.PW- 12/A was not sent for opinion to the hand writing expert. Why so? has not been explained. Police could have conveniently sent the same along with the document Ext.PW-13/A/Ext.PW-1/D for comparison with Ext.PW-5/B-1 to Ext.PW-5/B-10. This would have only strengthened the prosecution case. Also PW-23 admits that he had actually not made any inquiries from the person whose particulars were allegedly filled-in the register (Ext.PW- 12/A). Correctness thereof was not got verified. Verification of the same would have only proved the alleged impersonation on the part of the accused. Further according to PW-23, factum of impersonation and filling-up of entries in the register were disclosed by the accused to him, which version does not appear to be true. According to this witness, this fact was narrated by the accused to him when none was present. Now this cannot be true. This witness had interrogated the accused for two days i.e. 6th and 7th September, 1999, yet he did not record any disclosure statement of the accused. According to PW-23, accused was interrogated by him when none was present which 12 version stands materially contradicted by PW-7, who states that PW-1 was present at the relevant time. Disclosure statement (Ext.PW-2/D), was recorded only on 8.9.1999 when investigation was taken over by PW-20. Even in the said disclosure statement, this fact is not so recorded. Further, police has not bothered to make inquiries from Sh. Bansi Lal Thakur, Advocate as to whether the accused had contacted him and sought legal advise from him on 5th/6th September, 1999 or not. In these circumstances, it cannot be said that accused had stayed in the Guest House at Rampur Bushahr by furnishing false particulars and had sought legal advise. 13. We find that police has not bothered to examine other residents of the village. It has come in the version of PW-1, PW- 2, PW-7, PW-20 & PW-23 that there are houses of relatives of the accused in the village. It is not the case of the prosecution that during investigation such relatives were either not co- operating or were supporting the accused. It has also come in the version of PW-1 that before he reached the house of the accused and discovered the factum of death of his sister, 4-5 persons were already present there. Now who were these persons? Why were they not examined? Why did the police not make any inquiries to ascertain their identity? All this has not been explained by the prosecution. These lingering questions raise doubt about correctness of the prosecution story. No doubt, whereabouts of the accused were not known prior to his arrest, but this fact by itself cannot be a deciding factor or proof 13 sufficient enough to prove involvement of the accused in the alleged offence. 14. We also find that even with regard to investigation carried out by PW-23, lot is left to be desired. According to PW- 23, photographs were taken by Sh. Bhagwan Dass (PW-22), who contradicts such version by stating that photographs were in fact taken by his brother Mehar Singh (PW-15) and not by him. Judicial notice can be taken of the fact that Anni is a small place and there are not many shops of photographers there. Even local police is familiar with people in smaller places. According to PW- 23, he had taken the photographer alongwith himself to the spot at the time of investigation. Yet he forgot the identity of the person who had taken the photographs. This only renders the prosecution case of having carried out the investigation, as is so projected to be doubtful. 15. Further, according to PW-20, he commenced investigation on 8.9.1999 when he recovered rope (Ext.P-32) from one of the rooms of the house of the accused. Significantly, wires (Ext.P-29 & P-30), already stood recovered by PW-23 on 3.9.1999 itself. No such rope was seen by PW-23 at that time. It appears that rope (Ext.P-32) was not there at all, otherwise the same would not have escaped the attention of either the residents of the village or police officials present at the spot. Rope was recovered from the house which is not very big. It was thoroughly searched by the police. Many persons were present at the spot. Possibility of the rope being subsequently placed by someone else also 14 cannot be ruled out. Further PW-20 took into possession note book (Ext.P-34) and envelope (Ext.P-33) allegedly containing hand writing of the accused. Even with regard to the recovery of Ext.P-33 & P-34, there is contradiction. Even these exhibits were not sent to the hand writing expert for opinion. 16. On the question of disclosure statement, we find that there is material contradiction. According to PW-2, the same was made in the police station by the accused whereas according to PW-20, disclosure statement was recorded on the spot. This only renders the prosecution version with regard to the disclosure statement to be doubtful. 17. Thus, prosecution has not been able to prove, beyond reasonable doubt by leading clear, cogent and convincing material to the effect that accused is guilty of the alleged offence. 18. From the record, it cannot be said that the hypothesis, other than the guilt of the accused alone has been proved by leading clear, cogent and convincing material on record. Chain of events and the circumstance viewed cumulatively does not lead to an un-escapable conclusion that crime was committed by the accused alone and none else. 19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly 15 appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. September 9, 2011. (rana)