IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 648 of 1996. Decided on: 26.04.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Sada Ram and another. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1.Yes. __________________________________________________________ For the appellant : Mr. Vivek Thakur, Additional Advocate General. For the respondents : Mr. Anand Sharma, Advocate. ---------------------------------------------------------------------------------------- Deepak Gupta, Judge(Oral) : This appeal by the State is directed against the judgment dated 27th May, 1996, delivered by the learned Sessions Judge, Bilaspur in Sessions Trial No. 9 of 1993, whereby he acquitted the accused of having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. The prosecution story, in brief, is that on 15th January, 1993, complainant Budhi Ram (PW-1) lodged a complaint with the Police at Bus Stand Bilaspur, where he happened to meet Inspector Dharam Singh (PW-22). In this 1 Whether the reporters of the local papers may be allowed to see the judgment?Yes. complaint, it was alleged that Parkash Chand was his nephew in relationship. On 8th January, 1993, Budhi Ram had gone to his village and was informed by his wife Smt. Krishni Devi alias Nikki (PW-7) that on 7th January, 1993, Parkash Chand had come to their house, where he took meals. Thereafter, Parkash Chand played Cards till about 10 P.M. and then went to his house. On 10th January, 1993, Sita Ram, father of Parkash Chand enquired from the complainant about the whereabouts of his son and informed the complainant that his son had not returned home after 7th January, 1993. The complainant advised Sita Ram to look for son in the house of other relatives. On 12th January, 1993, Sita Ram again came to the house of the complainant and the complainant inquired about Parkash Chand and then Sita Ram told him that Parkash Chand was not traceable. Then Budhi Ram, complainant went to Shimla to find out the whereabouts of Parkash Chand from his son-in-law Paramjit Singh, who was posted in Police Station, Dhali, Shimla. He asked his son-in-law to find out whether Parkash Chand had reported for duty at Junga or not. He then returned to his village from Dhalli. 3. On 15.01.1993, at about 11 A.M., Jagdish Chand (PW-18) informed the complainant that when he had gone to collect grass and fodder from the jungle, he saw the dead body of Parkash Chand in Jamli jungle under a Khair tree amongst the bushes. There were signs of wounds on the back of the head and neck of Parkash Chand. Then, Jagdish Chand (PW-18) and the complainant came to report the matter to the Police at Police Station Bilaspur, but they met Dharam Singh at the Bus Stand itself. In this complaint, other than the allegation that the deceased was murdered with a sharp edged weapon, no specific allegations were levelled against any person. It appears that in fact, the complainant and his family members were questioned by the Police. Some were arrested and some were interrogated as the needle of suspicion pointed towards these family members. Thereafter, for the first time on 18th January, 1993, they came up with a story that the deceased had played cards with accused Sada Ram and Rattan Lal and they were last seen with the deceased. The accused were arrested. Investigation was carried out and accused were charged with having committed the offence aforesaid. They pleaded not guilty and claimed trial. They have been acquitted by the learned trial court and hence, the present appeal by the State. 4. We have heard Mr. Vivek Thakur, learned Additional Advocate General and Shri Anand Sharma, learned counsel for the accused. 5. The complainant Budhi Ram appeared as PW-1. He virtually repeated what he had stated in the complaint. However, now he added the names of Sada Ram and Rattan Lal. In his statement in the court, he stated that his wife told him that these two persons alongwith Bhag Singh (PW-5) had played cards in his house late in the evening of 7th January, 1993. In cross-examination, this witness admitted that besides his wife his sons, namely, Kartar Singh, Amar Singh and Rattan Chand were also residing at his house in village Jamli. A suggestion was put to this witness that in fact his son Kartar Singh was also present in the house and left immediately for Dehli and did not return for six months. According to this witness his son Kartar Singh was undergoing some training at Sundernagar for this period of six months. His sons, namely, Amar Singh and Rattan Chand were aged 22 and 20 years at the time of occurrence. This witness admitted that on 15th January, 1993, he did not disclose to any person that the deceased and the accused had played Cards in his house on 7th January, 1993. This is highly unusual conduct. The deceased was a nephew of the witness. Admittedly, the deceased could not be traced out by his father for the next 2-3 days. This witness claims that he came to Shimla from his native village to enquire about the whereabouts of the deceased from his son-in-law, who was posted at the Police Station Dhalli. If his wife had disclosed to him that the accused had played Cards with Sada Ram and Rattan Lal and was last seen with two persons, it would have been natural human conduct to have first enquired from these two persons as to where the Parkash Chand had gone after they left. The story of playing cards was not mentioned in the complaint Ex.–PA. In this complaint, the names of the accused are not there. No names of the persons who played cards, were given. It was only on 18th January, 1993 that for the first time, the names of the accused were disclosed, that too after the complainant and his family had come under the scanner of the Police. Admittedly, Amar Singh, Surinder Pal, Shayam Lal and Nikki were arrested by the Police. After two three days, some of those persons were released. PW-1 was confronted with his complaint Ex. –PA as well as supplementary statement recorded under Section 161 of the Code of Criminal Procedure, wherein the names of the accused are not mentioned. A suggestion was put to him that to deflect the inquiry from his family members, he made a false statement, which suggestion he has denied. 6. PW-2 Mahantu only saw the body of the deceased person and informed this fact to PW-18 Jagdish Chand. 7. PW-18 Jagdish Chand states that on 9th January, 1993, when he was grazing his goats in Jamli jungle, PW-2 told him that he had seen one dead body in the jungle. He could not recognize the dead body and according to him, because he was scared, he did not disclose this fact to anybody till 15th January, 1993 when he met Budhi Ram and Gurbax at about 11 A.M. at Jamli and told them that he had seen dead body in the jungle. This statement of Jagdish Chand (PW-18) is contrary to the statement of Mahantu (PW-2) and complaint Ex.-PA. Even according to PW-1, Jagdish Chand accompanied him to the Police Station Bilaspur to lodge the report. Therefore, when the complaint Ex.-PA was being recorded, Jagdish Chand (PW-18) was present. In this complaint, there is no mention that the dead body was discovered on 9th January, 1993. The conduct of Mahantu and Jagdish Chand is also highly unnatural. If an unidentified body was found in the jungle, then these witnesses would have either informed some members of the Panchayat or some of their relatives about this fact. These witnesses, on the other hand state that they kept totally quiet and did not inform anybody till 15th January, 1993, when Jagdish Chand informed complainant Budhi Ram about the fact that he had seen the dead body of a person in the jungle. 8. The next comes circumstance relied upon by the prosecution is that the deceased was last seen in the company of accused on the night of 7th January, 1993. To this effect is the statement of PW-5 Bhag Singh, who is a neighbour of Budhi Ram (PW-1). He stated that he, Parkash Chand (deceased), Sada Ram and Rattan Lal accused played cards till about 10 P.M. Thereafter, he went to his own house and last saw Parkash Chand, Sada Ram and Rattan Lal talking below a mulberry tree. According to him, he learnt about the disappearance of Parkash Chand only when the dead body was recovered, i.e., on15th January, 1993. This is totally contrary to the statement of PW-1 Budhi Ram and the other relatives of deceased Parkash Chand. If this witness had been playing cards with Parkash Chand till late at night, it would have been but natural for the relatives of Parkash Chand to enquire from this witness about the whereabouts of Parkash Chand. This witness was also arrested by the Police and in fact was first suspected to have committed the murder of the deceased. 9. PW-6 Surinder Pal is a witness to this theory of last seen. According to him, he did not play cards, but he saw the other persons playing cards. He admitted that Parkash Chand is his cousin and his house is about two-three K.M. from village Jamli. He stated that he came to know about the disappearance of Parkash Chand after 3-4 days of this incident of playing cards, but he did not tell anybody about this fact that they had played cards at the house of PW-1 Budhi Ram. It is not clear why this witness after coming to know about the disappearance of Parkash Chand did not inform Sita Ram, father of Parkash Chand or Gurbax, grand father of Parkash Chand about these facts. For the first time, he disclosed the names of the accused as the persons who played cards on 18th January, 1993. 10. Krishani Devi alias Nikki, wife of PW-1 Budhi Ram appeared as PW-7. According to her, four days after 7th January, 1993, Sita Ram, father of Parkash Chand enquired from her as to where Parkash Chand had gone after playing cards. By that time, her husband had gone to Dhalli at Shimla in search of Parkash Chand. According to her, her statement was recorded on 16th January, 1993, one day after the recovery of the dead body. She admitted that she did not tell Sita Ram, father of the deceased that deceased Parkash Chand had played cards with the accused persons on the night of 7th January, 1993. She also did not disclose to any person the fact that she last saw the deceased and the accused below a mulberry tree. 11. Sita Ram, father of the deceased unfortunately expired during the course of the trial. His widow, Smt. Roshani Devi was examined as PW-8. She stated that her son did not return to his house on 7th January, 1993 and next day she came to know that her son and the accused alongwith others had played cards in the house of Budhi Ram, and that he had left the house of Budhi Ram at about 10 P.M. Her statement does not inspire confidence because all the other witnesses have categorically stated that they never informed anybody about the fact that the accused and the deceased had played cards together till 18th January, 1993. 12. According to Babu Ram (PW-9), on 7th January, 1993, when he was in his hotel (Dhabha) at about 10 P.M., he saw the deceased Parkash Chand along with the accused going on a walking path (pagdandi) towards Jamli jungle. About 3-4 days later, Sita Ram, father of Parkash Chand came to him and told him that Parkash Chand is missing and he narrated the entire facts to Sita Ram, father of Parkash Chand. He also stated that he told this fact to Sita Ram four days prior to the recovery of the dead body, which means this was done on 11th January, 1993. The statement of this witness is totally unreliable. As per his version, on 11th or latest by 12th January, 1993, he had told Sita Ram, father of the deceased that he had seen the deceased along with the accused persons going on the path leading to the jungle late at night. If he had done so, the villagers would have made efforts to search the jungle and also to make enquiries from the accused which, admittedly, has not been done. 13. Statement of PW-11 Chhotu Ram is not relevant because it is more in the nature of hearsay. He only stated that his father Sita Ram was informed by Budhi Ram (PW-1) about the fact that deceased Parkash Chand was last seen playing cards with the accused in the house of Budhi Ram and they were last seen together talking under a mulberry tree. This is totally contrary to the statement of PW-1 Budhi Ram. He also made various improvements in his statement recorded in court vis-à-vis statement recorded under Section 161 of the Code of Criminal Procedure, making his testimony totally unreliable. 14. PW-12 is doctor N.K. Sankhyan. His initial opinion was that the time between the death and post mortem was between 24-48 hours. The dead body was recovered on 15th January, 1993 and subjected to post mortem on 16th January, 1993 at 9:30 A.M. This would mean that the death occurred after 9:30 A.M. on 14th January, 1993. However, certain questions were put to this witness about the temperature and rain chart of the area and for various reasons, he wanted to change the time of the death and did not rule out the possibility of the death having taken place prior to 48 hours. But this also does not help the prosecution case. In this case, the body was subjected to post mortem after eight days, if the version of the prosecution of last seen is to be believed. There may be a marginal difference, but there cannot be a difference of as many as eight days in the opinion about the time of death. Even in the winter months, the dead body would start putrefying. This witness while changing his opinion has given the following reasons: “That the interval between death and post mortem of deceased Parkash Chand as mentioned in the post mortem report was 24 to 48 hours was according to the findings during post mortem. Because in India, rigor mortis lasts 24 to 48 hours in winter. However, lasts for 2 to 3 days in temperate region. Refer to essentials of Forensic medicine and toxicology by Doctor K.S. Narayan Reddy, 1989, edition, on page No.141 under the heading duration of Rigor mortis. That the greenish discolouration over the caecum and flankes makes its appearance about 12 to 24 hours after death and may be delayed for more than 24 hours in winter.” In fact, this witness while referring to Parikh’s text book on Medical Jurisprudence and Toxicology, 1985 edition, made it clear that even in winter, the colour changes occur within one to three days. Rigor mortis is delayed by cold and accelerated by heat. There may be considerable seasonal variation in the time of on-set and duration of rigor mortis. The delay cannot be of more than one or two days. Similarly, with regard to putrefaction, it has been stated that the same commences at a temperature above 10 degree C. and if temperature is below 10 degree C. putrefaction does not occur. In cross-examination, this witness stated that he cannot say whether from 7th January, 1993 to 15th January, 1993 it had rained and the weather was cold. He relied upon the weather chart proved by PW-13. In this chart, there is no temperature recorded on 8th, 9th and 10th January, 1993. These were three most important days because this was when rigor mortis would have set-in and putrefaction started. Thus, no reliance can be placed on this incomplete chart. In fact, even the temperature mentioned in the chart has not been properly proved since PW- 13 himself had not recorded this temperature and has only produced a copy of the record maintained in his office and the original has not been produced in the Court. He could not even name the officials who had recorded the temperature in the chart. 15. Accused Sada Ram is also said to be linked with the offence on the ground that two blood-stained Pajamas and weapon of offence were recovered on the basis of disclosure statement made by the accused. As far as recovery of the Pajama is concerned, the prosecution would have this court believe that the accused himself came to the Police Station ten days after the murder wearing a blood-stained Pajama. The recovery of the other Pajama has also not been proved in accordance with law. According to PW-23 Shri Kuldeep Sharma, accused Sada Ram made a disclosure statement Ex.- PH under Section 27 of the Indian Evident Act in the presence of Hari Singh. Similarly, disclosure statement of accused Rattan Lal Ex.-PK was recorded by Shri Kuldeep Sharma in the presence of the same witness. Both the disclosure statements are alleged to have been made on 20th January, 1993. PW-4 Sada Ram stated that he was associated with the Police on 18th January, 1993, when the Pajama worn by the accused was taken into possession and on 20th January, he was again associated in the investigation, when the disclosure statement leading to the recovery of a drat was recorded. Interestingly, this witness stated that on 18th January, 1993 when he went to the Police Station, he was asked by the Police to come on 19th January, 1993. He, however, told the Police Officials that he would not be available on 19th January, 1993 and that he would come on 20th January, 1993. He was asked to bring one respectable person from the village alongwith him and, therefore, on 20th January, 1993, he went to the Police Station alongwith Hari Singh, member Panchayat. There is no explanation as to why they had called this witness alongwith another respectable witness. It appears that Police knew that they were going to effect certain recoveries on 20th January, 1993 and, therefore, they had called the witness on a fixed date and time. How they could have been aware that the accused were going to make disclosure statements two days later? Why did they manage the presence of the witnesses before the disclosure statements were made? These questions remain unanswered. Thus, the disclosure statements are totally unreliable. 16. Undisputably, nobody saw the deceased Parkash Chand being killed. The case of the prosecution is based mainly on circumstantial evidence. In a case where the prosecution basis its case on circumstantial evidence, it is the bounden duty of the prosecution to fully establish and prove beyond reasonable doubt all the facts and circumstances which are consistent with the guilt of the accused. These circumstances when linked together should lead to only one hypothesis i.e., the guilt of the accused. In case there is a possibility that the deceased was murdered by some other person or the possibility of the accused not being involved, the accused must be given the benefit of doubt. 17. In the present case, none of the circumstances relied upon by the prosecution, have been proved. The main circumstance relied upon was that the accused and the deceased played cards and were last seen together under the mulberry tree. As pointed out above, this circumstance has not been proved because the story of the accused playing cards with the deceased surfaced for the first time on 18th January, 1993, i.e. 11 days after the death. The relatives, i.e., the mother and brother of the deceased have stated that they were informed by PW-1 Budhi Ram and others that the accused and the deceased had played cards together, but PW-1 and other witnesses have clearly stated that this fact was not disclosed by them to any person till 18th January, 1993. 18. Even, the time of the murder of the deceased Parkash Chand has not been proved beyond reasonable doubt. The first opinion of the doctor was that the death had taken place between 24-48 hours of post mortem, but later he changed his view and gave an indefinite opinion about the time of death. According to him, the death may have taken place more than 48 hours. There is a lot of difference between 48 hours and eight days. No explanation has been given by the doctor, as pointed out above, for changing his opinion. Moreover, even in winter after eight days, the dead body would have definitely started putrefying. As far as the recoveries are concerned, these have not been proved to be at the instance of the accused and in fact, as pointed out above, the disclosure statements were stage managed by the Police. 19. The evidence led in this case, in fact shows that the initial investigation of the Police did not rule out the possibility of the star prosecution witnesses being involved in the crime. This hypothesis cannot be ruled out that the deceased was murdered in the house of Budhi Ram by his sons or other relatives. The sons, who are stated to have been in the house, aged 22 and 20 years, were not examined in the Court. The wife of Budhi Ram and other persons, including his sons were arrested by the Police during investigation. It has also come on record that Budhi Ram alongwith his counsel came to the Police Station Bilaspur to arrange for the release of his wife and other relatives and the main star witness of the prosecution Babu Ram, owner of the Dhaba is the client of the lawyer engaged by Budhi Ram. All these facts, coupled with the fact that till 18th January, 1993, i.e., 11 days of the date of occurrence, all these witness have never named the accused, clearly shows that the accused have been falsely implicated. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge April 26, 2010. (bhupender)