IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 93 of 2001. Date of decision: 22.12.2010. State of H.P. ….. Appellant. Vs. Ram Singh …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr Rajinder Dogra, Addl.A. G. For the respondent : Mr. Om Parkash Sharma, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 28/29.5.1999, accused was put to trial. In terms of judgment dated 20.9.2000 passed by learned Sessions Judge, Kullu, in Sessions Trial No. 38 of 1999 titled as State of H.P. vs. Ram Singh, accused stands acquitted of the charged offence. 2. It is the case of prosecution that on 15.6.1999, Sh. T. R. Thakur, Dr. S. Kaul and Dr. Chhering (PW-1) had come to the Primary Health Centre, Gondhla for holding Family Planning Camp. Dr. Hira Lal (PW-3) was Incharge of the Centre. In the said Centre, Sh. Dildar (deceased) was working as a Pharmacist and accused Ram Singh was working as a Sweeper. Since Dildar was absent from duty w.e.f. Whether the reporters of the local papers may be allowed to see the Judgment? 2 27.5.1999, Dr. Hira Lal brought this fact to the notice of the visiting team. On 15.6.1999, residential quarter of Dildar was checked by Dr. Chhering (PW-1), Dr. Hira Lal (PW-3) and other officials. They found the door locked and foul smell coming from within. Suspecting some foul play they associated Amar Chand (PW-2), Vice President of the Gram Panchayat. Lock of the door was broken open by Shyam Chand (not examined). After entering main room of the house they found fuel wood scattered all over the place. Then they entered another room and found half burnt clothes scattered all over the floor. In the third room of the house they noticed a dead body in a sitting position facing towards the wall. Body was burnt and from the physical features deceased could be identified as Dildar. On the asking of the Chief Medical Officer, Dr. Chhering lodged a report with the police and F.I.R. No.40/99 (Ext.PW-1/A) dated 15.6.1999 with Police Station, Keylong under Sections 302, 201 IPC was registered. SHO Nand Kishor (PW-22) commenced investigation by visiting the spot and preparing inquest report (Ext.PW-2/T). He associated independent witness Amar Chand. Investigation revealed that accused was having animosity with deceased Dildar. Dispute was with regard to a stabilizer, which allegedly was taken away by the accused from the stores of which Dildar was Incharge. During investigation police took into possession lock (Ext.P-1) along with the key (Ext.P-2). Fuel sticks (Ext.P- 3 & Ext.P-4) were taken into possession vide memos (Ext.PW- 2/A and Ext.PW-2/B). Blood stained fuel sticks (Ext.P-5 to 3 Ext.P-8) were taken into possession vide memo (Ext.PW-2/D). Stains of blood from the wall and other pieces of wood were taken into possession vide memo (Ext.PW-2/E & Ext.PW-2/F dated 16.6.1999). Pieces of blood stained, match box and biri were also taken into possession vide memo (Ext.PW- 2/H). Hair allegedly belonging to the accused Ext.P-13 were taken into possession vide memo (Ext.PW-2/J). Certain other articles belonging to the accused, including his personal apparels and other half burnt clothes were taken into possession vide memos (Ext.PW-2/K, Ext.PW-2/L, Ext.PW-2/M, Ext.PW-2/N & Ext.PW-2/O). Police also discovered that w.e.f. 27.5.1999 both the accused and the deceased were absent from duty. Dead body was sent for post-mortem which was conducted by Dr. Gurmit Singh (PW-9) who gave his report (Ext.PW-9/A). Articles taken into possession by the police from the place of crime were sent for chemical analysis and report of the Chemical Examiner (Ext.PW-9/A) was taken by police. Accused was arrested on 19.6.1999 and got medically examined through Dr. Gurmit Singh (PW-9) who issued MLC (Ext.PW-9/C). In order to match the hair found at the spot of crime, sample of hair of the accused was also taken and sent for chemical analysis. Opinion of an Expert (Ext.PW-22/G) was also taken by the police. On 23.6.1999, accused made a disclosure statement in the presence of Dr. Hira Lal (PW-3) and Amar Chand (PW-2). On the basis of disclosure statement (Ext.PW-2/P), on 23.6.1999 accused led to recovery of the wooden stick (Ext.P-23) which was blood stained. Same was recovered from 4 the house of the deceased. It was taken into possession vide memo Ext.PW-2/Q. Accused further led to recovery of steel glass, bottle & cup (Ext.P-26, Ext.P-27 & Ext.P-28) which were seized vide memo Ext.PW-2/S dated 23.6.1999. Further investigation revealed that accused was seen by PW- 6 & PW-7 with his hands burnt. Finger prints of the accused were also taken by the police and sent to the Director, Finger Print Bureau. As per reports (Ext.PW-22/J to Ext.PW- 22/M), finger prints found on the bottle, cup and glass tallied with that of the accused. Police also recorded statement of Amin Chand (PW-12) who disclosed that on 27.5.1999 accused received vaccine from him vide indent (Ext.PW-12/E) and at that time hands of the accused were not burnt. Stabilizer (Ext.P-114) given by Lokesh Verma (PW-8) to the police was taken into possession vide memo Ext.PW-8/A. 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 22 witnesses and statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offences, hence the present appeal. 6. Death of Dildar is not in dispute. There is no eye witness to the occurrence of the incident. Prosecution has invited our attention to depositions of prosecution 5 witnesses to show that there is enough circumstantial evidence, proven on record, against the accused. 7. Law on circumstantial evidence is now well settled. In a case of circumstantial evidence, prosecution has to prove beyond reasonable doubt, that circumstance established are consistent only with the hypothesis of the guilt of the accused and not in consistent with his innocence. Possibility of guilt of a person other than the accused is to be specifically excluded. 8. In the instant case our attention has been invited to the following circumstances, as culled out by the Court below in its judgment, against the accused: (i) Motive of disputes between the deceased and the accused on account of nonreturn of voltage stabilizer of the PHC, Gondhla by the accused which was under charge of the deceased; (ii) Absconding of the accused from 29.5.99 till arrest on 19.6.99 after unauthorizedly absenting from duty; (iii) Making of extra judicial confession by the accused; (iv) Getting weapon of offence recovered consequent to disclosure statement made to the police; (v) Presence of burn injuries on hand of the accused; (vi) Presence of hair of the accused on wooden pieces recovered on 16.6.99 from residential quarter of the deceased; (vii) Presence of finger prints of the accused on steal tumbler found from room of the deceased. 6 9. Before we deal with each circumstance separately, we may point out that none of the prosecution witnesses have revealed the material on the basis of which the Investigating Officer suspected involvement of the accused in the alleged crime. Crime allegedly took place sometime in the night intervening 28/29.5.1999 and accused was arrested on 19.6.1999. Neither Dr. Chhering (PW-1) nor the Investigating Officer (PW-22) have disclosed the basis of such a suspicion. Prior to arrest of the accused, Investigating Officer does not state that he had recorded statement of any witness including PW-1. If this was so, then on what basis was the accused arrested or even suspected of having committed the alleged crime. We may however, clarify that this fact has not weighed with us while arriving at our conclusions. 10. From the statements of Dr. Gurmit Singh (PW-9) and Dr. J. N. Chauhan (PW-19) as also post mortem report (Ext.PW-9/A) and opinion (Ext.PW-9/B), it stands proved that the deceased died due to head injury. 11. Identity of the accused is also not in dispute. 12. According to Dr. Hira Lal (PW-3) there was a dispute between the accused and the deceased over a stabilizer. Stabilizer was taken away by the accused from the store of which deceased was Incharge. Now this circumstance cannot be said to have been proved on record. There is no written complaint or report of the stabilizer found to be missing from the store or custody of the 7 deceased. Stabilizer was not private property of the deceased. Importantly Dr. Hira Lal admits that stabilizer was allegedly taken away by the accused much prior to his joining the office. Who told him? How did he came to know about the same is not disclosed. In any event it is hearsay evidence. Hence except for this bald statement of Dr. Hira Lal there is nothing on record to prove this fact. Further none has come forward to prove that stabilizer actually belonged to the Government and was under the charge of the deceased. Thus it cannot be said that accused had any motive or harboured any animosity against the accused. 13. Our attention was invited to the statement of Lokesh Verma (PW-8) who is only an employee of a shop at Keylong, where the stabilizer was given for repair. According to him, accused came to the shop to enquire about the stabilizer given for repair. Now this witness is not the owner of the shop. Who gave the stabilizer for repair is also not disclosed by him. No doubt, he identified the stabilizer in Court but however, does not state that it was this very stabilizer which was handed over by the accused for repair. Consequently statement of this witness cannot be said to be of any consequence. 14. To prove the second circumstance, our attention was invited to the statements of Dr. Hira Lal and Amin Chand. According to the prosecution, accused was found absconding from 28.5.1999 till the time he was arrested by the police. In this regard our attention has also been invited to the application (Ext.PW-3/B) for leave submitted 8 by the accused. Police took into possession attendance register (Ext.P-30 & Ext.P-31). Dr. Hira Lal also sent report (Ext.PC) pertaining to the absence of the accused to the headquarter. 15. Having gone through the material on record, we are of the view that even this circumstance cannot be said to have been proved against the accused. We find that accused otherwise had been absenting from duty. Earlier in the month of May, 1999 he had absented on three occasions. That apart, we find that deceased Dildar was absent from duty w.e.f. 27.5.1999, whereas it stands proved through the testimony of Amin Chand (PW-12) that on 28.5.1999 accused was present and in fact had taken the delivery of vaccine which he was asked to do by Dr. Hira Lal. Delivery note is also on record. Accused had no intention of absconding from the scene of crime or from the area in question. This is quite apparent from the testimony of Lal Chand (PW-7) as also Nawang (PW-6), as accused was noticed having tea in the tea stall run by PW-6 on two different occasions i.e. on 13.6.1999 and 16.6.1999. Thus it cannot be said that accused had any intention or in fact had absconded from the place of occurrence of crime. As a matter of right, he had moved an application for leave on which due action taken by the authorities. We may also note that report prepared by PW-3 was sent much after the arrest of the accused. Consequently even this circumstance cannot be said to have been proved by the prosecution. 9 16. With regard to the extra judicial confession made by the accused, our attention was invited to the deposition of Amar Chand (PW-2) and Dr. Hira Lal (PW-3) as also the Investigating Officer (PW-22). According to PW-22, even though accused was arrested on 19.6.1999 but during interrogation he was taking a vacillating stand but eventually on 23.6.1999 made a disclosure statement (Ext.PW-2/P) in the presence of Amar Chand and Dr. Hira Lal. In the said statement, accused has simply stated that he can get the weapon of offence recovered from the place where it was hidden by him. Having minutely examined the statements of the relevant prosecution witnesses, to our mind, doubt has arisen about the voluntary nature of the statement. There are some contradictions and improbabilities on record which go to the root of the matter. According to PW-22, disclosure statement was made in the PWD Rest House at Gondhla, whereas according to Sh. Amar Chand (PW-2), disclosure statement was made near the place of the incident i.e. the courtyard of the house of the deceased. Further according to the prosecution accused led to recovery of weapon of offence i.e. blood stained wood stick and fuel wood (Ext.P-23 & Ext. P-24) vide recovery memo Ext.PW-2/Q. Importantly, recovery of weapon of offence took place from the house of the deceased. Recovery was effected on 23.6.1999 from the very same place where police had actually taken into possession blood stained wood and other articles on 16.6.1999 itself. It is improbable, impossible and unbelievable that on 16.6.1999 10 itself police would not have noticed or recovered the weapon of offence from the place of crime. This totally renders the prosecution case to be doubtful. We may further add that disclosure statement is also hit under the provisions of Indian Evidence Act. Undisputedly, place of recovery stood already searched and inspected by the police party even prior to the arrest of the accused. Further the weapon of offence was not sent for serological examination by an expert. Weapon of offence was simply shown in Court to the Doctor who had conducted the post mortem. There is nothing to link the blood recovered from the spot and also found on the weapon of offence being that of the deceased. Consequently this circumstance cannot be taken to have been proved and established by the prosecution on record. 17. Our attention has also been invited to the statements of the Investigating Officer as also Dr. Chhering in whose presence the tumbler, glass and bottle (Ext.P-26 to Ext.P-28) were taken into possession by the police vide memo Ext.PW-2/S on 23.6.1999. It is the case of the prosecution that immediately prior to the occurrence of the crime both the accused and the deceased were seen together. Recovery made vide memo Ext.PW-2/S dated 23.6.1999 was effected from the place of crime. Surprisingly on 16.6.1999 prosecution did not notice these articles at the place of crime. How could they miss out on the same. Even prior to the disclosure statement made by the accused on 23.6.1999 they did not notice the same. Investigation was going on. What transpired between these 11 two dates at the spot is not clear. While dealing with this circumstance, Court below has observed as under: “The quarter of the deceased was initially visited, checked on 16.6.99, when all incriminating articles were seized by SHO Nand Kishor under memos Ex.PW-1/C to PW-1/0 respectively. But the steel tumbler EX.P-26, glass bottle EX.P-27, cup EX.P-28 were seized under memo Ex.PW-2/S on 23.6.99 on which date accused allegedly in police custody disclosed and consequently got recovered wooden stick and wood piece, the weapon of offence with which he allegedly struck scalp of the deceased. Photographs of the dead body and room or places around there to Ex.P-32 to P-66 and P-68 to P-72 were taken on 16.6.99. Likewise photograph EX.DA was taken on 16.6.99 EX.DB (also exhibited as P- 67) was taken on 23.6.99 showing position of the room of the deceased as stated by Sh.Nand Kishor SHO. In EX.DA photograph taken on 16.6.99 glass, bottle are missing. In photograph Ex.DB steel tumbler is shown kept nearer to the fire place on a tray. This glass as such was found in the room on 23.6.99 but from photograph EX.DA dated 16.6.99 tumbler is missing from that place, nor glass bottle are visible. According to narration of Nand Kishor SHO accused on 23.6.99 showed the steel glass, bottle and cup which under memo EX.PW-2/S were seized. Steel tumbler EX.P-26, bottle EX.P-27, cup Ex.P-28 were openly placed in the room. They were not concealed, covered or hidden anywhere. It is on this tumbler Ex.P-26 that finger prints of the accused were available and subsequently they were compared with his finger prints. This appears to be planted, fabricated evidence by the prosecution. As had 12 the tumbler with finger prints of the accused, glass bottle, cup been in the room, they ought to have been taken in to possession on 16.6.99. But on that day they were not taken in possession nor any of the witness referred to presence of these articles inside the room. Consequently these articles are missing from photograph EX.DA on 23.6.99 after arrest of the accused; these articles appeared in the room as well as in photograph EX-DE. This circumstance makes me to believe that it is a planted evidence to implicate accused in the crime. Director, Finger Print Bureau, Phillaur vide opinion Ex.PW-22/K found similarity between finger prints of the steel tumbler and specimen finger prints of the accused. I am convinced that this is planted evidence and therefore opinion of the Director Finger Print Bureau, Phillaur would be of no help to the prosecution.” 18. We are in total agreement with the aforesaid observations. Further we may add that finger prints of the accused were taken by the police without prior permission of the Court. In these circumstances, report of the Finger Print Expert cannot be looked into. Assuming that the finger prints on the said articles were actually that of the accused; even then, in our considered view, it cannot be used as circumstance against him. After all accused and deceased were colleagues and presence of the accused in the house of the deceased would not make him a suspect in any manner. In any event prior to the occurrence of the crime none have seen them together in the house of the deceased. Accused may have been there on an earlier occasion. For the 13 same reason circumstance No. (vi) cannot be said to be proved. Thus it cannot be said that prosecution has been able to prove, beyond reasonable doubt, even this circumstance. 19. Our attention was also invited to the statements of Dr. Chhering (PW-1), Amar Chand (PW-2), Dr. Hira Lal (PW- 3), Nawang (PW-6), Dr. Gurmit Singh (PW-9) and Amin Chand (PW-12) to show that burn injuries were found on the hands of the accused. From the testimonies of the aforesaid witnesses, it is quite apparent that prior to 16.6.1999 accused had no burn injuries on his hands. As per the opinion of the Expert, on the burn injuries rested patches on the dorsum of the hands were found. According to the Expert, granulation tissue starts only two weeks after healing. To this extent, Court below has come to the conclusion that prosecution has been able to prove that on the dorsum point of right hand of the accused, there were burn injuries. However, in our considered view, this by itself is too weak to a circumstance to connect the accused with the crime. 20. We have also examined the statements of Sushil Kumar (PW-4), Mohan Lal (PW-5), Ved Parkash (PW-10), Kamal Kishor (PW-11), Megh Singh (PW-13), Prem Singh (PW-14), Kunj Lal (PW-15), Ishwar Singh (PW-16), Rakesh Kumar (PW- 17), Baljit Singh (PW-18), Sonam Dawa (PW-20) & Yog Raj (PW-21). These are police officials. From their statements, it cannot be said that any of the circumstance stands established. 14 21. For the aforesaid reasons, we find no reason to interfere with the well reasoned findings returned by the Court below. 22. 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 22, 2010 (rana)