IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.404 of 1996 Reserved on : 20th March, 2010 Date of Decision:15th June, 2010 State of Himachal Pradesh Petitioner Versus Smt. Guddo and others Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Vivek Thakur, Additional Advocate General with Mr.R.M.Bisht, Dy. Advocate General. For the respondent: Ms.Uma Manta, Advocate. Sanjay Karol, J. 1. Dead body of Shri Roz Din was recovered from the jungle on 5.12.1992. His wife Smt. Guddo (A-1/A- 1) was allegedly having illicit relationship with Shri Gurdial Singh (accused No.2/A-2). Amru alias Amro alias Totu (accused No.3/A-3) was working as a truck cleaner with A-2. All the three accused persons allegedly conspired and committed murder of Shri Roz Din, some time on 4.12.1992. They were Whether the reporters of Local Papers are allowed to see the Judgment? 2 charged for having committed an offence punishable under Section 120-B, 302 read with Section 34, IPC. In terms of judgment dated 16.10.1995 delivered by Sessions Judge, Chamba, in Sessions Case No. 20 of 1994, titled as State of H.P. vs. Smt. Guddo and others, the accused persons stand acquitted of the charged offence. 2. The case of the prosecution is as under:- 3. Shri Roz Din was the resident of Village Khalal Lahru, Pargana and Police Station Chowari, District Chamba. He was married to A-1. A-2 used to visit their house which become the cause of quarrel between A-1 and the deceased. A-2 was employed as a truck driver on vehicle No. HIC -404 and A-3 was employed as a helper. The truck was owned by Shri Vinod Kumar (PW-14). On 4.12.1992, A-1 asked the deceased to bring fuel wood from the jungle. At about 8 a.m. the deceased went into the jungle to get the same. On the same day at about 3 p.m., the deceased and A-1 were also seen together in the jungle by Smt. Guro (PW-21). Thereafter A-1 informed Hanif Mohd. (PW-1), a resident of the village that her husband had not returned from the jungle. PW-1 alongwith Shri Rattan and Saino searched for Roz Din in the jungle but in vain. Even the other residents of the village searched for him. Later at about 9.30 p.m. PW-1 alongwith other residents again searched for him in the jungle. On the same day PW-1 was 3 informed by one Shri Jassi Ram that at about 12 noon he had seen A-1 and the deceased together. Next day in the morning PW-1 informed Shri Onkar Nath (PW-2), President of the Gram panchayat that Roz Din was missing. At about 8.30 – 9.00 a.m. on 5.10.1992, Shri Chaman Singh (PW-5) informed PW-1 that dead body of Roz Din was lying in a “Ghalla” (grass land) near his house. The information was passed on to PW-2 who after deputing PW-5 and PW-1 to guard the dead body himself went to inform the incident to the police. On 5.12.1992 at about 10.10 a.m. report (Ext.PM) was lodged with Police Station Chowari. The police swung into action and the dead body of the accused was photographed and sent for post-mortem examination. Inquest report (Ext.PA) was prepared. On the side of the body a Darat (sickle), one pair of shoes, one Chadar (bed sheet) and one pant belonging to the deceased was found. The same was taken into possession vide memo Ext.PD. Investigation revealed that A-3 had been noticed by Rakesh Kumar (PW-6) at Lahru Chowk. The vehicle in question had crossed the barrier at Lahru on 4.12.1992 at about 3.15 a.m. It was going towards the jungle where the dead body of the deceased was discovered. It further revealed that during his life time the deceased had lodged a complaint (Ext.PJ), which was scribed by Shri Rajeev Kumar (PW-19) (with the police against the truck drivers). This application dated 4.8.1992 records 4 that certain drivers used to visit his house and take liberties with his wife. Shri Jaram Singh (PW-12) is alleged to have verbally warned A-2 who allegedly confessed of having illicit relationship with A-1. Rukka (Ext.PI) was prepared by the police and sent to the Police Station, Chowari where FIR(Ext.PH) dated 12.12.1993, under Sections 120-B, 302 read with Section 34, IPC was registered. 4. Dead body of Roz Din was sent for post- mortem which was carried out by Dr.Ravikant Ahuja (PW-11) and report (Ext.PG) was obtained by the police. 5. A-3 who was absconding was finally arrested on 16.3.1994. During the course of investigation, he made statements Ext.PP and Ext.PQ, indicating the place of offence and also the place where the dead body was allegedly thrown by them. Even A-1 had pointed out the place of occurrence of the crime which was reduced into writing vide memo Ext.PC. 6. With the completion of the investigation, challan was presented in the Court for trial. The accused persons were charged for an offence as noticed earlier, to which they did not plead guilty and claimed trial. 7. The prosecution examined as many as 22 witnesses and statements of the accused under Section 313, Cr.P.C. was also recorded. In effect the defence taken by A-3 is that of absolute innocence 5 and false implication in the matter. A-2 admits to have visited the house of the deceased but has taken a defence that A-1 is his God sister, which fact was within the knowledge of the deceased. This is also the defence of A-1. She also claims false implication. 8. We have heard learned counsel for the parties and perused the record. 9. There are very startling features in this case which reveal the callous manner in which the police has carried out the investigation. We are conscious that this fact by itself is not a ground to throw out the prosecution case but certainly it has raised serious doubts about the prosecution version in our mind. 10. The inquest report (Ext.PA) is dated 5.12.1992, yet Rukka (Ext.PI) was prepared on 12.12.1992 and FIR was also registered on the said date. Importantly the police station is only at a distance of 7 km. from the spot of occurrence of the crime. Now no explanation for the delay in lodging the FIR is forth coming. The postmortem report (Ext.PG) is dated 7.12.1992, even at this time FIR was not registered. Importantly, Rukka does not mention the name of any suspect, yet the Police took into possession record (Ext.PE) of Lahru barrier vide memo dated 13.12.1992. This was done only to show the presence of A-2 and A-3 near the spot at the 6 alleged time of occurrence of the crime. Importantly, inquest report revealed that certain articles were found near the body of the deceased yet they were seized only vide memo Ext.PD, which is dated 19.12.1992. The delay is unexplainable. As is evident from the statement of the Investigating Officer SI Nasib Singh (PW-22) A-1 and A-2 were arrested on 15.12.1992. A-1 was released on 16.12.1992. She was interrogated between 13.12.1992 and 15.12.1992. Memo Ext.PC dated 18.12.1992 allegedly records the fact that A-1 shown the site where the deceased had committed sexual intercourse with her and later on put to death. But clothes allegedly worn by her at the time of the occurrence of the crime were taken into possession on 15.12.1992 vide recovery memo Ext.PB. This memo is witnessed by Shri Tara Chand, who has not been examined in the Court. Record also reveals that some articles were seized only on 19.12.1992. Therefore, Ext.PC was falsely prepared by the police. The FSL report (Ext.PF) dated 17.3.1993 revealed that the body parts of the deceased sent for chemical analysis contained minor contents of alcohol. Yet the Investigating Officer did not take into account this aspect of the matter. Most importantly Ext.DA, statement of PW-1 recorded under Section 174, Cr.P.C., is dated 4.12.1992 whereas admittedly the police reached the spot only on 5.12.1992. On the basis of telephonic 7 information given by Shri Onkar Nath, Pradhan, Gram Panchayat, on 5.12.1992 a report (Ext.PM) was lodged at Police Station Chowri. It categorically records that C. Hari Singh (PW-18) stands deputed to inform the SHO at Kuthar and HC Ranjit Singh, C. Roshan Lal, and C.Chain Singh have been deputed for guarding the spot as also the dead body. None of the persons asked to safe guard the body and the site have been examined by the prosecution. Even the Investigating officer Nasib Singh does not mention about their presence. Having reached the spot first what did these persons see or do has not been explained by the prosecution. HC Om Parkash (PW-16) states that a packet containing Chaddar Ext.P-9, PT shoes Ext.P-10, Darat Ext.P-10 and another packet containing shirt Ext.P-3, underwear Ext.P-4 and Sweater Ext.P-5 and another packet containing clothes of the A-1 shirt Ext.P-1, Salwar Ext.P-2 were received by him through PW-2 on 5.12.1992. They were kept in the Malkhana. Now if this is true then obviously recovery memo Ext.PD dated 19.12.1992, which shows recovery of these articles has been prepared as an afterthought. 11. There is no eye witness to the crime and the prosecution case is based on circumstantial evidence. There are four circumstances relied upon by the prosecution, (1) application moved by the deceased before the police authorities alleging threat to his life and the truck drivers coming to his house and 8 teasing his wife, (2) illicit relationship between A- 1 and A-2 which was objected to by the deceased which was the cause of quarrel between the husband and wife, (3), presence of A-2 and A-3 in and around the area of the alleged crime and also the presence of A-1 alongwith the deceased and A-3 in and around the place where the dead body of the deceased was found and (4) confessional statement of A-3 of having killed the deceased and also the statement of A-1 and accused no.3 pointing out towards the place where the deceased was first murdered and later on where his body was thrown. 12. The 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)]. 13. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be 9 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 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.] 14. As per the version of Dr. Ravi Kant (PW-11), who carried out the post-mortem, there were no external marks of violence on the body or ligature mark on the neck. Skull and vertebrae were normal. The parts of abdomen were also normal. However, probable duration between the injury and death was within thirty minutes and between death and post mortem was 48 hours to 72 hours. The cause of death, after the report of FSL was found to be “sympathetic shock due to blunt injury to the right testicle”. 15. Now the prosecution has tried to prove the illicit relationship between A-1 and A-2 by examining ASI Tarsem Ram (PW-12) and Shri Rajeev Kumar (PW-19). Application Ext.PJ scribed by PW-19 does not mention the name of any specific person. It does not even talk of any illicit relationship. PW-19 also does not state that the deceased had suspected A-2 of 10 having illicit relationship with his wife. Version of PW-12 does not inspire confidence at all. He does not recollect the exact date when the application (Ext.PJ) was placed before him. It also does not bear any endorsement nor does it record the action taken thereupon. He admits that he “did not make any entry” regarding the application “in any police record”. Importantly, he is the very same person who recorded FIR (Ext.PH) on the receipt of the Rukka (Ext.PI) yet he failed to mention receipt of the application to the Investigating officer or immediately place it on the record. He admits to have handed over the application to the Investigating officer on 19.12.1992. The possibility of the same having been subsequently prepared to falsely implicate the accused cannot be ruled out. He admits that he does not know many villagers in Lambru bridge. He also does not remember the date on which he had seen the truck driver by A-2 or having reprimanded and questioned him on the contents of the application. Hence the testimony of this witness cannot be relied upon to prove the guilt of the accused. 16. Now the fact that the truck in question had crossed Labru bridge on 4.12.1992 at about 3.15 p.m. stands proved by PW-7. Who was the driver or the cleaner of the truck at that time is not proved. Rakesh Kumar (PW-6) has deposed that in his shop he 11 had seen A-3 in the morning of 4.12.1992. This solitary statement by itself would not prove the guilt of the accused. There is nothing on record to prima facie show as to how A-2 had connived with A-1 and A-3 to murder the deceased. None had ever seen all the three accused persons together. There was no animosity or prior dealings between the deceased and A-3. It is also not the case of the prosecution that A-3 also used to visit the house of A-1. 17. Through the statements of the witnesses and more specifically PW-21 the prosecution has tried to prove that A-1 and the deceased were present in the jungle some time during the day on 4.12.1992. According to PW-21 she saw A-1 and the deceased cross her house at about 9 a.m. PW-21 is not even clear about the date when she had seen A-1 going into the forest. 18. According to Rattan Singh (PW-8) he had met A-1 and Garibo Devi, mother of PW-1 and was informed by them that the deceased who had gone to the jungle had not returned. They all went to the jungle but could not find him. Shri Jassi Ram also informed that he had also seen A-1 and the deceased going towards the house of Chaman alias Chaman Singh and had heard Roz Din giving 5-6 calls to A-1. Through the statement of PW-8, prosecution has tried to prove what was narrated by Jassi Ram, but, however, her statement does not inspire confidence as she admits 12 not to have told this fact to anyone except the police. An incident about the death of a villager had taken place and yet no mention about the same was made to any one. This is not a natural human conduct of a person. The statement does not inspire confidence for this reason. 19. Now, according to Smt. Shukro Devi (PW-3), the deceased had gone into the jungle to get fuel wood and A-1 had followed him. On her return, at about 11 a.m. she changed her clothes and later at about 4 p.m. started complaining that her husband had not come back from the jungle. How can this circumstance prove the guilt of A-2 is unexplainable. Assuming that she had gone into the jungle even then it does not point out towards her guilt. 20. There is nothing on record to prove that A-2 had gone into the jungle. Only A-3 is alleged to have been seen going into the jungle where the dead body of Roz din was found. But this evidence is too weak to even remotely link him to the alleged crime. It is the prosecution version that A-3 had in fact killed the deceased. There is no evidence whatsoever of any conspiracy against A-2. 21. With regard to the deceased frequently quarrelling with A-1 and also objecting to the presence of A-2 in his house, prosecution has examined PW-1, PW-2 and PW-3. The version of PW-2 does not inspire confidence. He claims to have seen 13 a stranger visiting the house of A-1 during the night and yet not lodge any complaint with any one. His claim to have formally counseled her does not inspire confidence. He further states that both A-1 and A-3 had pointed out the place where the deceased was allegedly murdered and memo Ext.PC was prepared and signed by him as a witness. According to him, A-1 showed them two places; one where the deceased was allegedly murdered and the second where his dead body was thrown. He admits the distance between the two is one Furlong. The place where the dead body was found undisputedly adjoining to the public path which is frequently visited by the villagers for collecting fuel wood. Now why would someone kill a person in the jungle and then carry the body to keep it at a place which is frequently visited by the villagers is beyond comprehension. As noticed earlier, except for injury of the testicle no marks were found on the body of the deceased. A-1 is alleged to have made a disclosure statement to the effect that before murdering she had sexual intercourse with the deceased. The parties were not newly married couple. PW-1 admits the deceased and A-1 to be married for about 27 years. They had three children and the eldest one being more than 18 years. Now, why would A-1 have sex with her husband in the jungle whom she had conspired to kill. True that deceased was found only wearing a shirt and an underwear. The 14 possibility of the deceased, in a drunken state, having opened his pant for the purpose of defecating cannot be ruled out. 22. The circumstance of accused No.3 having made a disclosure statement (Ext.PP) and subsequently pointing out the place of occurrence (Ext.PQ) cannot be used against him as a factum of death of the deceased, the place where he was murdered by A-3 was already in the knowledge of the police. A-2 is alleged to have disclosed it earlier. 23. Most importantly, FIR (Ext.PH) records the name of Shri Pappu, son of the deceased, who allegedly had accompanied A-1 to the jungle. Now the investigating agency has not examined any member of the family or the relative to verify the fact of illicit relationship between A-1 and A-2 and suspicion, if any, about the foul play in the death of the deceased. Most of the independent witnesses were in the know of the alleged illicit relationship between A-1 and A-2 and deceased having objected to the same then why none came forward to state this fact to the police at the first instance. This has not been explained. This by itself renders the prosecution story to be doubtful. 24. PW-1 admits having been informed by A-1 that she used to treat A-2 as her god brother. He admits not to have seen or noticed anything objectionable between the said accused persons. His version that 15 he learnt about the same from the deceased does not inspire confidence. This witness admits the deceased had lodged a complaint against him. Admittedly no complaint was made by the deceased with the Pradhan. 25. During the course of trial the prosecution has given up various witnesses without any justifiable reason. 26. There are also certain contradictions in the statements of the witnesses. The version of PW-1 that he and Chaman (PW-5) had informed PW-2 about the death of Roz Din is falsified by the version of PW-2, according to whom, it was only PW-5 who had informed him of having seen the body of the deceased. Though PW-1 has also made material improvement from his earlier statement (Ext.DA) with which he was confronted, we are not taking the same into account. 27. The version of the prosecution that A-3 was working as a Cleaner in the truck in question stands falsified by the owner of the truck Vinod Kumar (PW-14). According to whom, Amar Singh had left the job a night preceding the death of Roz Din. 28. With regard to recording of FIR there is contradictory evidence. According to PW-19 upon receipt of Rukka, Om Parkash (PW-16) recorded the FIR (Ext.PH), whereas according to Jaram Singh (PW-12) it was he who had recorded the FIR. Importantly, it is not the case of the prosecution that the accused had been killed with the Darat found near the body of the 16 deceased. No weapon of offence with which the accused allegedly murdered the deceased has been recovered by the police. 29. The delay in lodging of FIR is fatal as it is definitely a result of due deliberations and prepared only to falsely implicate the accused persons cannot be ruled out. 30. 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 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. 15th June, 2010 (Sanjay Karol) (C) Judge.