IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 590 of 2002. Date of decision: 05.12.2011. State of H.P. ….. Appellant. Vs. Dharam Chand son of Sh. Maghu Ram, Caste Rajput, R/o Chhej, Illaqua Sandhol, Police Station Sarkaghat, Distt. Mandi (H.P.) ….respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Sr. Addl.A. G. For the respondent : Mr. Rajesh Verma, Advocate. Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed during the period between 7.5.2001 to 21.5.2001, accused was put to trial. In terms of judgment dated 28.8.2001 passed by learned Sessions Judge, Mandi, in Sessions Trial No. 37 of 2001 titled as State of H.P. vs. Dharam Chand, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that on 7.5.2001, Kumari Babita (deceased) went with her father (accused Dharam Chand)towards river Beas at village Chhej, Tehsil Sarkaghat, Distt. Mandi. Sh. Shashi Kumar alias Viku (PW-4) son of the accused and brother of the deceased saw the accused carrying a Whether the reporters of the local papers may be allowed to see the Judgment? 2 gunny bag and a rope. Accused also purchased a tube of Celphose (poisonous substance) from Sh. Krishan Pal, Agriculture Extension Officer (PW-6). Later on accused made the deceased eat poison which resulted into her death. The dead body was packed by him in a gunny bag and thrown into river Beas. On 8.5.2001 when accused returned home alone PW-4 made inquiries and was told by the accused that the deceased had stayed back at a place known as Sandhol. On the following morning i.e. 9.5.2001 accused asked PW-4 to call his grand mother and uncle Prem Chand (PW-3). PW-4 called PW-3, when accused had a private conversation with PW-3. Thereafter all three of them proceeded towards Sandhol. They went near the side of the river but could not find traces of the deceased. Thereafter, accused separated himself from PW-3 & PW-4, but did not return till 20.5.2001. Instead accused went to Hoshiarpur (Punjab) where he met his co-brother Milap Chand (PW-12) and confessed of having murdered his daughter i.e. the deceased. Thereafter PW-12 brought the accused to his native village in Himachal Pradesh and informed PW-3 about the confession made by the accused. On 22.5.2001, Sh. Tek Chand (PW-2) another brother of the accused lodged a report (Ext.PE) with the police, on the basis of which F.I.R. No.117/2001 (Ext.PQ) dated 22.5.2001 under Section 364 IPC was registered at Police Station, Sarkaghat. ASI Neel Chand (PW-17) visited the spot and arrested the accused on 23.5.2001. On 25.5.2001, HC Jagat Singh (PW-14) was informed about detection of a dead body 3 wrapped in a gunny bag, which was recovered in a totally decomposed state in the presence of Sh. Hari Dass and Sh. Lalit Kumar (not examined), Pradhan, Gram Panchayat. Body was identified to be that of the deceased and sent for post mortem which was conducted by Dr. B.B. Katoch (PW-1) who submitted his report Ext.PD. As per medical opinion, cause of death could not be ascertained for the reason that body was highly decomposed. No opinion with regard to poisoning of the body could also be given as no such traces were found. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 302 & 201 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined as many as 17 witnesses and statement of the accused under Section 313 Cr.PC was also recorded. Accused did not lead any evidence in defence. 5. Court below acquitted the accused of the charged offences on the ground that prosecution failed to prove its case, beyond reasonable doubt, even though absence of the accused from the house between 7.5.2001 upto 22.5.2001 remained unexplained by him. 6. The fact that the body was identified to be that of the deceased is not in dispute before us. Dr. B. B. Katoch (PW-1) has further clarified that cause of the death could not be 4 ascertained for the reason that the body was decomposed. Also no evidence of poison was found on the body of the deceased, gunny bag, one rope or the mud, weeds or grass found along with the body. 7. It is a settled principle of law that suspicion alone cannot be a substitute for proof. In the instant case, there is no eye witness to the occurrence of the incident. Prosecution case primarily rests upon circumstantial evidence. 8. Law on circumstantial evidence is well settled. To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however, grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172)]. 9. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 committed by 5 the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. [Trimukh Maroti Kiran vs. State of Maharashtra, (2006) 10 SCC 681.] 10. Prosecution case primarily rests upon testimonies of independent witnesses i.e. PW-2, PW-3, PW-4 & PW-12. 11. No doubt, PW-4, son of the accused, has deposed that on 7.5.2001, he had seen his sister accompany his father towards Sandhol side for purchasing certain articles but however there is nothing more in his testimony to prove the guilt of the accused. The last seen theory, in our view is not a circumstance enough to prove the guilt of the accused. It is quite natural for any child to accompany her father to the bazaar. This witness admits that his father used to look after the children properly. Thus there is no motive. It has come on record through the testimonies of independent witnesses that accused had four children who lived with him inspite of the fact that his wife had been living separately with her parents for the last 1½ months, prior to occurrence of the incident. He further states that on 8.5.2001, when his father returned home without the deceased, he made inquiries and was informed that deceased had stayed at Sandhol. Next day, he was asked by his father to call his grand mother and his uncle i.e. PW-3. He did call PW-3. Accused and PW-3 had a private conversation and thereafter all of them went towards river Beas. They looked for traces of Babita. After some time accused separated himself by stating that he would come 6 later in the evening. Accused thereafter did not return but was brought by his uncle Sh. Milap Chand (PW-12) only on 21.5.2001 when the matter was reported to the police. 12. Sh. Tek Chand (PW-2) is real brother of the accused. He got the FIR registered on 22.5.2001. He admits that he is separated from his brother since long. He admits that none from the family of the accused were on talking terms with him. He admits that his other brothers also have litigation with the accused and relations between the parties are strained. In this background, part of the version given by PW-4 does not inspire confidence. There was no occasion for the accused to have asked PW-4 to visit the house of PW-3 and call him specially when relations were strained and there was prior animosity and litigation between the two of them. He may not be privy to the conversation which took place between his father and his uncle but then he was aware that on 8.5.2001 itself they were searching for traces of the deceased. Why is that he did not take up the matter with his relative, panchayat or the police when his father did not return home till 22.5.2001. 13. Coming to the statement of PW-3, we also find that the same does not inspire confidence nor does it substantiate the case of the prosecution. No doubt, this witness fully corroborates the version given by PW-4, but however he also has a different version to narrate. This witness states that on 9.5.2001 itself accused had confessed with him of having poisoned his daughter. Now if this was true then why is it that he did not 7 report the matter to the police the very same day and waited for PW-2 to lodge the FIR. He also does not explain as to why he did not take up the matter with the other members of the family, including PW-2 or the panchayat. Testimony of this witness also does not inspire confidence for the reason that he admits that he had not informed about the discussion which took place between him and the accused in his report Ext.PH. 14. Other independent witness Sh. Milap Chand (PW-12) states that on 20.5.2001 accused had come to his place at Hoshiarpur and confessed of having killed his daughter by giving her poison. But version of this witness, to our mind, does not appear to be true. He admits that accused had informed him that he was at Haridwar between 7.5.2001 and 20.5.2001. This witness is co-brother of the accused. Yet he does not know the status of the relations of the accused with his brothers and he also did not know as to whether they were living separately or not. If his version is to be believed then why is it that he did not straightway take the accused to the Police Station or himself got the FIR registered either at Hoshiarpur or at Sarkaghat. What was the need for him to have taken the accused to PW-2. Significantly PW-2 & PW-3 admit that even they did not trace the deceased after she was found to be missing. Even they did not report the matter to the police prior to 22.5.2001. 15. Prosecution has not examined any other independent witness. Grand mother and other children have also not been examined in Court. Police has also not tried to inquire about the 8 truth from the neighbours. As such, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material and peace of evidence (oral or documentary). 16. Also there has been inordinate and unexplainable delay in lodging the FIR, apart from the fact that there is nothing to link the accused to the alleged crime. 17. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles 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 appreciated the evidence on record or that acquittal of the accused 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. ( R. B. Misra ) Judge (Sanjay Karol) Judge December 05, 2011 (rana)