IN THE HIGH COURT OF HIMACHALPRADESH SHIMLA Cr. Appeal No.290/2007 Date of decision: 10.12. 2010 State of H.P. …..Appellant Versus Dhan Bahadur and ors. ……Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondents : Ms. Shalini Pandav vice Mr. Arvind Sharma,Advocate for respondent No.3 Surinder Singh, J. (Oral) Leave to appeal was granted by this Court on 22.8.2007. Respondent No.3 was served and Mr. Arvind Sharma, Advocate put in appearance for him. Now, Ms. Shalini Pandav is appearing vice to render assistance to the Court. 2. Respondents No. 1 and 2 are Nepalies and are stated to have gone back to their country. This is an appeal against acquittal, the presence of respondents No. 1 and 2 despite our best efforts could not be procured. Even the non- bailable warrants were also issued against them through the Ministry of Home/External Affairs for its execution, which 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - have not been returned so far. But, now, otherwise we also found that the warrants, summons, notices received from the other countries cannot be served and executed in Nepal, as per the existing law of Nepal. 3. By following precedent of Supreme Court in State of H.P. vs. Satish Kumar in Cr.A. No. 917 of 1997, decided on 31.8.2001, we also feel that no useful purpose will be served by keeping this petiton pending. Ms. Shalini Pandav, who is representing respondent No.3 has consented to be amicus curiae to assist us. The paper-book is already with her and we proceed to hear the matter. 4. In short, the prosecution case is that the deceased Shashi Bahadur, a Nepali Labourer, was employed on daily wages by the complainant Sh. Krishan Chand Manta. On 21.4.2004, he had gone to attend the marriage of his nephew and returned after 3 days. While on his way back to his village, three Gorkhas labourers, who were already working with him, informed that Shashi Bahadur (deceased) was missing from the previous day. Nar Bahadur told him that the deceased and Ganesh Bahadur had gone to Village ‘Kaina’ to the ‘Dera’ (hut) of respondent Dhan Bahadur. Only Ganesh Bahadur had returned to his hut, but Shashi Bahadur was not seen with him. 5. The complainant along with Inder Singh went to the Dera of accused, Dhan Bahadur and made enquires from him and Hari Bahadur. They disclosed that on 23.10.2004, Dhan Bahadur, Shashi Bahadur, Krishan Bahadur and Tilak Bahadur were together and were consuming liquor. - 3 - 6. Next day, Hari Bahadur revealed to the complainant that accused Dhan Bahadur had cut the throat of Shashi Bahadur with a sharp-edged weapon and the dead body was kept concealed in the dilapidated house in Village ‘Maghara’. 7. This information was imparted to police, thereafter statement of the complainant under Section 154 Cr.P.C. was recorded, which culminated into the FIR under Sections 302 & 201 read with Section 34 IPC. 8. The police arrested accused Dhan Bahadur and took into possession a tarpaulin, a danda and a polythene bag from his hut. During his interrogation, he is alleged to have made a disclosure statement with respect to the dead body of Shashi Bahadur which was recovered from the same dilapidated house, as earlier pointed out by Hari Bahadur to the complainant. 9. Thereafter, accused Dhan Bahadur allegedly made another disclosure statement under Section 27 of the Indian Evidence Act, pursuant to which, knife Ext. P5 was got recovered at his instance, in the presence of the witnesses from his Dera. He also produced a jute bag, a rope and a plastic sheet, to the police, which were stained with blood. The wearing apparels of the deceased and sample of blood, which were taken into possession by the police, were sent for Forensic Examination and as per the report, it contained human blood. 10. The investigation of the case further revealed that the deceased was last seen in the company of the respondents. - 4 - They had consumed liquor together. Some quarrel took place between them. They gave beatings to Shashi Bahadur (deceased), thereafter he was thrown in a field. Next day i.e. on 24.10.2004, respondent Dhan Bahadur brought him to a cow- shed and cut his throat and Shashi Bahadur breathed his last. 11. On the conclusion of investigation, Challan was prepared and presented in the Court for the trial of the respondents for the aforesaid offences. Accordingly, they were charge-sheeted, to which they pleaded not guilty and claimed trial. 12. The prosecution examined its witnesses to prove its case and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them. 13. When called upon to enter into their defence, no evidence in defence was led. 14. At the end of the trial, the respondents were acquitted as the prosecution failed to prove the alleged last seen theory and recoveries against the respondents, against which the State filed the present appeal. 15. (i) Last Seen Circumstance:, the main thrust of the arguments advanced by the Senior Additional Advocate General is on the statement of PW5 Ganesh Bahadur, who was present when he and the deceased along with respondents were taking liquor together in the Dera of Dhan Bahadur accused. He stated that all of them had consumed two bottles of liquor and after some time, he went out for urinating, but when returned, - 5 - he was under intoxication. When he tried to enter Dera, Hari Bahadur and his wife caught hold of him from his arm and did not allow him to go inside. Thereafter, he went to his own Dera leaving behind Shashi Bahadur in the company of the respondents. He further stated that next day, he sent his son to the Dera of Dhan Bahadur, who told him that Shashi Bahadur had already left. On the third day, he himself went to hut of Dhan Bahadur, Hari Bahadur informed him that the dead body of Shashi Bahadur was lying at a distance, which was removed by accused Dhan Bahadur with his assistance. He also told him that Shashi Bahadur was beaten up by the respondents and his throat was cut with a knife. 16. On the scrutiny of the above statement, we find that the statement of PW5 aforesaid is based upon the information given to him by Hari Bahadur, who was not examined before the learned trial court, as his presence could not be procured. The attribution of the ‘last seen’ theory to Dhan Bahadur appears to be not tangible because PW5 stated that when he had left the place, the deceased was in the company of Hari Bahadur, his wife and respondents. He did not name Dhan Bahadur. Therefore, the last seen circumstance goes off. 17. Second circumstance is the recoveries. In all probabilities, the prosecution has to rule out the possibility of someone else killing Shashi Bahadur to link the respondents with the aforesaid offence. The help is sought from the disclosure statement made by Dhan Bahadur with respect to - 6 - recovery of a tarpaulin, a danda and a polythene bag from his Dera coupled with recoveries of pants and his jacket and also recovery of the dead body at his instance and thereafter, recovery of knife etc., as stated above. 18. According to the Investigating Officer, he arrived at the spot on 25.10.2004 and he is alleged to have recovered a tarpaulin, a danda and a plastic bag from the hut of the accused Dhan Bahadur in the presence of witnesses Krishan Chand and Bhajan Dass. Whereas, Krishan Chand stated that the police entered into the Dera and recovered blood stained tarpaulin and danda, but did not say about the recovery of plastic bag. This fact is also stated by PW4 Bhajan Dass and PW1 Krishan Chand Manta. Pertinently, PW-1 Krishan Chand stated contrary to above that plastic bag Ext.P7 was recovered from a cliff and not from the Dera and taken into possession vide memo, Ext.PW1/K, whereas PW3 Lokinder Sharma, introduced another story that the above articles along with jute bag and polythene bag were produced by the accused Dhan Bahadur himself to the police, which makes the recovery quite dicey and not confidence inspiring. 19. Further, PW1 Krishan Chand Manta stated that the rope Ext.P9 was not there nor produced by the respondent on 27.10.2004. The blood stained danda, allegedly recovered, is also not a weapon of offence in this case and as per the prosecution, it is only the knife. Therefore, seizure of danda in no way helps the prosecution because post-mortem Ext. PW12/A reveals inasmuch as 7 ante-mortem injuries on the - 7 - person of deceased Shashi Bahadur, as per the statement of the doctor, were of sharp edged weapon and the same could not have been caused by a blunt weapon like danda. 20. Further no blood stains were found on the jacket of accused Dhan Bahadur, however, his pants contained blood of group ‘A’, but as to what was that of the accused could not be classified by the Forensic Expert. Also evidence on record does not reveal that the recovered articles so effected were deposited in the ‘Malkhana’ and sent intact to the Forensic Examination is the another cloud which the prosecution did not remove. 21. In so far as the disclosure statement of the accused Dhan Bahadur is concerned, PW Bhajan Dass, who is witness to it, stated that the police had administered threats to respondent Dhan Bahadur and he confessed to PW5. He categorically stated that the dead body was not recovered at the instance of Dhan Bahadur, rather it was Hari Bahadur, who got it recovered. Rather in cross-examination, he further stated that Hari Bahadur had pointed out the place where the dead body was concealed, on having been pressurized by the police and it was recovered from the ground floor of dilapidated house where they were taken by Hari Bahadur and Dhan Bahadur was not accompanying Hari Bahadur, but he came to the spot later. Therefore, the recovery of dead body is also not at the instance of Dhan Bahadur accused. 22. Further PW2, Inder Singh Manta, also stated that on 25.10.2004 all of them, including police had noticed the dead body during noon-time at the same place and his statement - 8 - on that date was recorded at 3.00 P.M. If the dead body was noticed even before the statement of the complainant, the very alleged disclosure statement of Dhan Bahadur, pursuant to which the dead body was recovered, becomes redundant and meaningless. 23. The statement of accused made before the police is admissible only in so far as it relates distinctly to the fact thereby discovered as a direct and proximate consequence of it, provided it is deposed to by the investigating officer to whom it was given and also says that the discovery was made in consequence of the information. So also it must be shown that the information conveyed by the accused was not previously known to police. 24. Section 27 of the Evidence Act permits, only proof of that part of the relevant information given by the accused. The extent of admissible information and its effect in deciding the guilt will depend upon the facts of cases. That will have relation to the extent of criminality, which the proved information is capable of placing on the accused. The deficiency, if any, will have to be supplied by other items of admissible evidence. The information acting as the ‘cause’ and the discovery of the ‘fact’ operating as the immediate and proximate ‘effect’ of the information, when put together could only lead to the legitimate inference possible. The existence of dead body at a particular place in the instant case, consequent upon discovery in absence of cogent exculpatory explanation, in some cases lead to inference of concealment by the maker - 9 - and his involvement in the crime, provided it inspires confidence of the information only leads to the inference of the knowledge of the maker that the body is there without any involvement on his part in the crime it may not by itself be sufficient to fix criminality and the remaining links may have to be supplied by the prosecution because his knowledge can be that somebody else placed the dead body there. If authorship of the concealment is also part of the information given by the accused that is an additional circumstance to fix criminality on him in the absence of any acceptable explanation leading to innocence. 25. Thus, in the given circumstances, no reliance can be placed upon discovery made pursuant to the disclosure statement and the recovery of the other alleged articles did not connect the respondents with the alleged offence. Thus, in our considered opinion, the prosecution has not been able to prove the case against the respondents beyond a reasonable doubt. The circumstances so putforth are not of a conclusive nature and tending to lead to a conclusion that the respondents have committed the crime. Since, the respondents could not be connected with the commission thereof thus they were rightly acquitted by the trial court by giving them benefit of doubt, as such it requires no interference. 26. The appeal sans merits and is accordingly dismissed. While parting with the judgment we would like to record our appreciation for rendering assistance to the Court by amicus curiae. - 10 - 27. The appeal stands disposed of. (R.B Misra), Judge December 10, 2010 (Surinder Singh), (pankaj) Judge