1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 268 of 1994. Decided on: 05.04.2008 . ____________________________________________________________ State of H.P. ……..Appellant. Versus Prabhat Singh . ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General assisted by Mr J.S.Guleria, Law Officer. For respondent : Mr. Raman Sethi, Advocate. ______________________________________________________________ PER SURINDER SINGH,J. The State has challenged the acquittal of the respondent dated 19th October, 1993 passed by the learned trial court, under section 302 Indian Penal Code, in Sessions case No. 11 of 1992, for allegedly having murdered one Hans Raj during the intervening night of 18/19th March, 1992 in village Narti, District Kangra (H.P.) In brief, the prosecution case, as emerges from the prosecution witnesses, is that respondent was a Chowkidar and deceased Hans Raj was a labourer. Both were the employees of State I.P.H. Department. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 On 19.3.1992 Kartar Chand, younger brother of the deceased, informed Pritam Chand (PW2) that his elder brother Hans Raj was lying unconscious on the path, leading to village Nerti. Pritam Chand instead of going to the spot went to the house of the respondent in village Ladwara. There he came to know that Hans Raj was taken to hospital at Dharamshala. He visited the hospital. Hans Raj had a head injury and was unconscious. Next day, he was referred to P.G.I. Chandigarh, where he remained in comma and ultimately died on 22.3.1992. Police prepared the inquest report (Ex.P-2) in P.G.I. Chandigarh, in the presence of Pritam Chand (PW2) and Lal Chand (PW3) father of deceased. On 23rd March, 1992 dead body was brought to the native village and cremated on the next day. According to the prosecution case, while cremating the dead body PW5 Sahbo Ram (father-in-law of the deceased) told PW2 Pritam Chand that on 18.3.1992 deceased Hans Raj and Rasila Ram (PW11) had consumed liquor in his house. Thereafter they proceeded towards the house of the deceased. Neither Rasila Ram (PW11) nor Prabhat Singh respondent, visited the house of the deceased to mourn his death nor participated in the cremation, which aroused the suspicion. Pritam Chand lodged a complaint (Ex.P-5) with S.H.O. Shahpur (Kangra). Police inquired into the matter and recorded statements of the father-in-law of the deceased, Sahbo Ram (PW5) and Rasila Ram (PW11). Rasila Ram had admitted taking liquor in the house of Sohbo Ram as alleged. According 3 to him it had become dark. Sh. Sohbo Ram, father-in-law of the deceased requested them to stay in his house but Hans Raj told him that the respondent was going to his house he would accompany him. All the three persons left his house. After walking for about half a furlong, Rasila Ram stopped at his house, which fell on the way. He also requested Hans Raj (deceased) to stay with him for the night but he again insisted upon to accompany his friend Prabhat Singh respondent. Next day he came to know that Hans Raj was found in an unconscious condition, on the path leading to village Nerti. Dr. S.K. Sharma (PW1) Of General Hospita Chandigarh performed the post-mortem and found the following injuries on the person of the deceased: 1. Lacerated wound 1½ cm x ½ cm on left eye brow laterally; 2. Abrasion ½ cm x ½ cm on back below left scapula; 3. There was haemotoma under scalp in parietal region; 4. There was fracture of left partial and right parietal bone. 5. There was also sub dural heamotoma on parietal region both the size. In the opinion of the Doctor, cause of death was head injury which was ante-mortem. The probable time between death and injury was about 16 hours, as indicated in the post-mortem report Ex.P-4. On the strength of the aforesaid evidence, respondent was arrested by the police. According to the case of the prosecution, the respondent got recovered two stones Ex.P4 and M-5, which were used as weapon of offence, pursuant to a disclosure statement Ex.P-11 of the respondent, recorded under section 27 of the 4 Evidence Act, made in the presence of Bansi Lal (PW13) vide memo Ex.P12. Police also took photographs of the site in question and also prepared the site plans Ex. P 24 and Ex.P-25. Muster roll (Ex.P-18) with respect to the attendance of respondent, wherein he was shown absent from the duty on 19th and 20th March, 1992 was also taken into possession by the police. After completing the investigation, challan was presented against the respondent for his trial in the court. Respondent was charge-sheeted for murder of Hans Raj to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses. The learned trial court did not rely upon the prosecution case, accordingly acquitted the respondent at the end of trial, as such his acquittal has been challenged in this appeal. Mr. Rajesh Mandhotra, Deputy Advocate General duly assisted by Mr J.S.Guleria, Law Officer has forcefully argued that the circumstance of last seen coupled with the recovery of stones and also the false denial in his statement, under section 313 Cr.P.C ,proves the case of the prosecution against the respondent which was wrongly rejected by the learned trial court. Sh. Raman Sethi, learned counsel for the respondent has repelled the above arguments by making submissions that the circumstances put forth did not 5 connect the respondent with the alleged offence. It is also argued that failure of the respondent to explain the circumstance of last seen cannot be taken as additional link due to a long time gap between the respondent last seen in the company of the deceased and the alleged crime. The recovery of stones is also surrounded by suspicion, therefore, the grounds recorded for acquittal are perfectly correct. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully scanned the evidence on record. It stands proved on record that respondent Rasila Ram (PW11), the deceased and the respondent took liquor together in the evening on 18.3.1992 in the house of Sohbo Ram, his father-in-law (PW5), and also that all the three persons had left the house of PW-5 when it had grown quite dark. The deceased did not stay in the house of his father-in-law, despite his request, rather he told him that he would accompany the respondent. Next day i.e. 19.3.1992 Hans Raj was found with the injuries on his head, lying unconscious on the path leading to village Nerti and later he succumbed to his injuries on 22.3.1992 in the P.G.I. Chandigarh. PW2 Pritam Chand and PW-3 Lal Chand father of the deceased had accompanied the deceased from Badsar hospital to P.G.I. Chandigarh till post-mortem. Up to the time of cremation all were of the view that Hans Raj had died on 18.3.1992 around 7.30 p.m. due to fall while walking 6 under the influence of liquor. This fact is also reflected in the death summary Ex.P-3 prepared by the Doctor at Chandigarh. Police was informed from Chandigarh about the death by Pritam Chand. Pritam Chand (PW2) had filed complaint Ex.P5 on his suspicion, as per the information received from Shri Sohbo Ram. The police investigated the case but did not find any eye witness. Rasila Ram who was a suspect, was arrayed as a witness with respect to last seen. The entire case hinges upon circumstantial evidence and the circumstances put forth to prove the charge against the respondent are as follows: 1. Last seen; 2. recovery of stones, pursuant to disclosure statement, made by the respondent, under section 27 of the Evidence Act; 3. false denial by the respondent in his statement under section 313 Cr.P.C. Before examining the aforesaid circumstances, we feel it necessary to mention here that when the cases rests upon circumstantial evidence, such evidence must satisfy the following tests: 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 7 2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3. the circumstances, taken cumulatively, should for 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 none else; and 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis that 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.” In the light of the aforesaid stated principles, we proceed to examine each of the circumstance, mentioned above, turn by turn: (i)LAST SEEN: The prosecution has placed reliance on the testimonies of PW5 Sahbo Ram and PW11 Rasila Ram. On 18th March, 1992, at about 5.45 pm Hans Raj (deceased) along with the respondent came to the shop of Lala at Rait, as stated by Rasila Ram (PW11). He offered him tea but Hans Raj told that he wanted to take liquor. Thereafter, Rasila Ram accompanied the respondent and deceased to the house of his in-laws 8 (PW5) Sahbo Ram, where all of them consumed liquor. In the meantime Sahbo Ram also reached there but he refused to take liquor. They consumed half bottle of liquor and thereafter proceeded to their respective villages. It had grown dark. Hans Raj did not stay in the house of his in-laws even on the request of PW5. He told him that the respondent was going to his village; therefore, he would accompany him. Then all of them left the place. Pw5 Sahbo Ram has corroborated his version. According to Rasila Ram (PW11) he stayed in his house, which fell on the way at a distance of about half a furlong. It was 7 p.m. He also requested them to stay in his house but the respondent and deceased went ahead towards village Ladwara-Nerti. Next day he came to know that Hans Raj was taken to hospital Dharamshala. On the day of cremation he was told by the father in law of the deceased that all the three had visited his house, on the day of Holi and consumed liquor. According to Pritam Chand (PW2) he was informed by Kartar Chand (not examined) the younger brother of the deceased that his elder brother was lying on the path of Nerti in an unconscious condition he did not specify the time when he was informed and did not state as to how he came to know that his elder brother was lying in an unconscious condition on the path leading to village Nerti. As noticed above, till the date of lodging the complaint (Ex.P5) no such story was put forth. However, it is pertinent to note that 9 on 22.3.1992 Pritam Chand (PW2) had made a statement Ex.DA to the police before lodging the complaint (Ex.P-5) on 19.3.1992 around 5 p.m. that Kartar Chand had informed him that Hans Raj (deceased) had a fall from hillock and sustained injuries and has been shifted to hospital at Dharamshala, but no record of Zonal Hospital, Dharamshala, about the time and date of admission of the respondent has been produced in evidence. On the critical examination of the aforesaid evidence it cannot be said that the deceased Hans Raj had died during the intervening night of 18th-19th March, 1992. There is nothing on record to show as who was the first person who had seen the deceased lying unconscious and what was the time. Further the Muster roll, referred above, shows that respondent was absent from duty on 19th and 20th March, 1992 but there is no evidence on record to show whether he was a night Chowkidar or was deputed on duty during the day and it cannot be deciphered from the Muster Roll, whether he was marked on duty for the day or night time. In order to appreciate the last seen theory, duration of time gap, when the deceased was last seen in the company of the respondent and duration of crime are absolutely very material. Normally such evidence is taken into account, where prosecution establishes that the said time gap was so small that possibility of any other person being with the deceased could 10 completely be ruled out but it cannot be said that in all cases where there is a long time gap between the above two points, the evidence of last seen together is to be rejected. But in such cases the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime. Last seen does not by itself necessarily lead to inference that it was the respondent-accused who had committed the crime. It depends upon the facts of each case. There may be cases, where, on account of close proximity of place and time between the event of accused having been last seen with the deceased and factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the instant case, it stands proved on record that during the intervening night of 18th and 19thMarch, 1992 the deceased and respondent were seen together but there is no evidence on record to show that at what time the deceased was found unconscious with the head injury on the next day nor Pritam Chand (PW2) has stated as to when Kartar Chand had come to know, when and by whom the deceased was found on the spot. Hans Raj was lying on the village path, any body 11 could have seen him on the very first sight in the morning, but no evidence was put forth by the prosecution in order to cut down the proximity between the last seen and the alleged incident. In the present case, there being a considerable time gap between the persons seen together and the proximate time of alleged crime, thus the circumstance of last seen together could not be taken into account to fasten the guilt on the respondent. Therefore, this circumstance got vanished. (ii)Recovery of the stones : As far as second circumstance of recovery of stones is concerned, on the face of the record, it appears to be farce for the reason that as per the case of the prosecution it was complete dark, when the alleged incident had taken place, if that being so, how the respondent could identify the stones Ex.P-4 and Ex.M5 having been used by him as the weapon for committing the offence and later got it recovered vide memo Ex.P-12. The size and shape of stones do not find mention in the recovery memo. There were no blood- stains on the stones and these stones were not shown even to the Doctor in the court to extract his opinion whether it could cause the fatal injury to the deceased. The alleged recovery of the stones has been disputed in the cross-examination of Chaman Lal Inspector (PW22). Therefore recovery of stones cannot be relied upon. 12 (iii) False denial: Tough it stands proved on record as per the version of Rasila Ram (PW11) and Sahbo Ram (PW5) that all the three persons had taken liquor in the house of PW 5 aforesaid. Thereafter they left his house when it had grown dark. This circumstance was put to the respondent in his examination under section 313 Cr.P.C. which was denied by him. By now, it is now well settled that where a case hinges upon circumstantial evidence, false denial of proved facts, supplies an additional link and a circumstance to the case of the prosecution. In the instant case, as discussed above, circumstance of last seen and recovery of stones stand rejected. As already stated above, the prosecution did not put forth any evidence to cut down the proximity between the last seen and the alleged incident. In these circumstances of the case, the respondent not giving any explanation in his examination under section 313 Cr.P.C. could not be taken to be a circumstance pointing towards irresistible conclusion that he is involved in the commission of crime. To come to this conclusion, we put our reliance to a judgment of the Supreme Court in State of Goa vs Sanjay Thakran and another (2007)3 SCC 755. Otherwise also false denial of the above proved fact alone is not sufficient to prove the charge against the respondent. 13 For the reasons aforesaid and on careful scrutiny of the evidence of the prosecution, we do not find any perversity in the impugned judgment of acquittal; therefore, it calls for no interference. In result, the appeal fails and is accordingly dismissed. The respondent is discharged of the bail bonds entered upon by him, during the proceedings of this case. (Surjit Singh), Judge (Surinder Singh), Judge. April 5, 2008. (D/Pds)