IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. : 355 of 1995 Judgment reserved on : 25.3.2010 Date of Decision : August 5 , 2010 State of Himachal Pradesh Appellant Versus Bir Singh and another Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Singh Thakur, Addl. Advocate General for the appellant/State. For the respondents : Mr. Suneet Goel, Advocate, for respondent No. 2. Sanjay Karol, J. For an offence, which is alleged to have been committed in the night intervening 12th and 13th of August, 1993, the accused persons were put to trial. In terms of judgment dated 1.12.1994 passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 6-N/7 of 1994, titled as State of H.P. versus Bir Singh and another, the accused stand acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 13.8.1993 Sh. Ganga Ram (PW-2) resident of village Pab Manal was on his way to the temple in village Naya. At about 6.00 a.m. when he reached near a place called Burasali he saw blood splattered on the path. Out of curiosity he looked around and saw the dead body of Sh. Shyam Singh lying in the field at a lower level abutting the path. He rushed to the village and informed the Up-pradhan Sh. Sunder Singh (PW- 5) and Sh. Mania Ram who asked him to inform Sh. Amar Singh (PW-1) son of the deceased at village Pachami. Accordingly Sh. Ganga Ram (PW-2) informed Sh. Amar Singh (PW-1) who in turn went to Police Post at Shilai and lodged a report (Ext. PA) on the very same day. The police swung into action. Report was forwarded to Police Station, Renukaji and police party left for the spot along with a photographer. The S.H.O. Police Station, Renukaji was also informed through a wireless message by the officials of the Police Post, Shilai. S.H.O. Sh. Sant Ram (PW-28) along with the Dy. Superintendent of Police and a photographer also proceeded to the spot. On the spot investigation was carried out. Inquest report (Ext. PB) was prepared and the dead body was sent to the hospital for post mortem which was conducted by Dr. V. B. Sood (PW-25) who filed his report (Ext. PLL) . On the spot four blood stained stones, tuft of hair and blood soaked earth & pebbles were lifted and taken into possession vide memos Ext. PQ, Ext. PO and Ext. PP respectively. Clothes of the deceased were searched and his personal belongings were found which were also taken into 3 possession vide memo (Ext. PN). The shoe of the deceased found near the dead body was taken into possession vide memo (Ext. PS). As per the post mortem report the deceased had died of eleven cut wounds on the head, neck and forearm which could have been inflicted by means of a dangra (Ext. P-12) (axe), weapon of offence. 3. Also during investigation, Sh. Budh Ram (PW-3) resident of village Naya informed the police that in the night of 12.8.1993 when he and his wife had retired for their bed, accused Bir Singh and accused Sant Ram came to his house. He asked his wife to prepare meals for them. In the meanwhile one Sh. Liaq Ram of his village visited his house and asked him to accompany and examine his brother who was unwell. Accordingly Sh. Budh Ram went along with Sh. Liaq Ram to his house. There he was told by Sh. Liaq Ram that there was a rumour in the village that cries of a person were heard coming from the side of Burasali and it appeared that someone was being beaten up. Sh. Liaq Ram inquired as to how the two accused persons happened to be in the house of Sh. Budh Ram. When Sh. Budh Ram returned to his house he noticed blood stains on the clothes of the accused persons. When the accused persons washed their hands to take meals the water also turned red like blood. On questioning, the accused confessed of having killed the deceased by means of a dangra (Ext. P-12). On the basis of this information police arrested the accused persons. Accused Bir singh made a disclosure statement (Ext. PU) which led to the recovery of dangra (Ext. P-12) and blood stained clothes belonging to accused 4 persons. Samples of the hair of the head of both the accused persons were also taken. They were to be tallied with the sample of the hair found at the spot where the body was found. The sealed samples of the articles recovered were sent to the Director, Forensic Science Laboratory for analysis and the report for the same was also obtained by the police. Investigation further revealed that both the accused persons had motive to murder the deceased. Accused Bir Singh was the Pradhan of the gram panchayat. Against him allegations of misappropriation of funds were made in a complaint written to the Deputy Commissioner and other revenue officials. In November, 1992 when Auditor Sh. Jia Lal Kannan (PW-14) had visited the village, he witnessed the deceased and the accused exchange hot words. There the deceased had slapped accused Bir Singh. At that time the accused had threatened that the deceased would have to face music for having publically humiliated him. The motive for accused Sant Ram to kill the deceased was however different and independent. Both Sant Ram and the deceased were interested to purchase the very same land which resulted into their relationship being soured. Investigation further revealed that on 12.8.1993 both the accused persons were seen in the company of each other till late hours near Burasali i.e. the place of crime. They were carrying with them a scythe, rope and a gunny bag. Circumstances proved the complicity of the accused. 4. On the completion of the investigation challan was presented in the Court for trial. The accused persons were charged for having 5 committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code to which they did not pled guilty and claimed trial. 5. In order to prove its case the prosecution examined as many as twenty eight witnesses. The statements of the accused persons under Section 313 of the Code of Criminal Procedure were also recorded in which accused Bir Singh took the following defence:- “It was rainy season those days and due to that it was foggy on the spot. It had rained on the night on which the murder has alleged to taken place. It was also raining when the police came. My signatures had been obtained on two sheets of papers at the time when I produced my shoes. I did not sign any paper before or after that. When the police people came to village Naya in connection with investigation, they suspected the involvement of Budh Ram witness and gave some fist blows and also slapped him. May be that Budh Ram has falsely implicated us to save his own skin.” The defence of the other accused is also on the same lines. 6. The learned Sessions Judge, Sirmaur District at Nahan, H.P. acquitted both the accused persons of the charged offence. The learned Judge held that there was no eye witness to the alleged crime and the circumstantial evidence did not prove beyond reasonable doubt, the fact that the accused had killed the deceased. 7. Heard the learned Counsel for the parties and also perused the record. 6 8. Admittedly there is no eye witness to the occurrence of the alleged incident. It is not disputed that body of the deceased Sh. Shyam Singh was found near the public path in the early hours of 13.8.1993. As per the testimony of Dr. V. B. Sood (PW-25) there were ante-mortem injuries on the body. He opined that injuries caused by a sharp edged heavy weapon on the person, especially on the head and the neck were sufficient to cause death of a person. 9. Conviction of the accused is sought by the prosecution on the basis of the following circumstances which have emerged from the record. (i) Accused persons had strong motive for commission of the offence; (ii) Soon before the occurrence of the alleged crime they were seen in the company of each other near the site of the crime. Almost at the same time and place the deceased also happened to on his way back from Shilai; (iii) The two accused persons went to the house of Sh. Budh Ram (PW-3) wearing blood stained clothes where they washed their blood stained hands to take meals and water turned red like blood. There they confessed before PW-3 to have murdered Sh. Shyam Singh; (iv) Statement of accused Bir Singh leading to the recovery of the weapon of offence and the blood stained clothes of himself and his co-accused Sant Ram; (v) Blood stained hair recovered from the spot tallied with the sample hair of accused Sant Ram and the clothes of two accused stained with human blood. 10. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt 7 is sought to be 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 versus State of Maharashtra, (2006) 10 SCC 681] 11. We shall deal with each of the circumstance separately. 12. Now to prove the motive of accused Bir Singh the prosecution has examined Sh. Jia Lal Kannan (PW-14). According to this witness, on 19th/20th November, 1992 while he was doing the audit work, many persons including accused Bir Singh and deceased Shyam Singh met him. Sh. Shyam Singh made allegations about non payment of wages of certain labourers. A written complaint pertaining to the said allegations had already been made to the higher authorities. When Shyam Singh made accusation against accused Bir Singh the latter took exception and the two started exchanging hot words. Then deceased Shyam Singh slapped accused Bir Singh. He could not follow the language as the words exchanged were in local dialect. The prosecution, through Sh. Shamsher Jang (PW-15) has proved the complaint (Ext. PG). Sh. Sunder Singh (PW-5) has also proved the said fact. Otherwise there is nothing material in their statements. 8 13. Now the said incident took place in November, 1992 and the deceased was killed in the night intervening 12th and 13th of August, 1993. The prosecution has failed to show much less prove that after the incident of November, 1992, hostility between the deceased and the accused had persisted. Except for Sh. Prem Singh (PW-26) none of the prosecution witnesses present at the spot in November, 1992 have stated that the accused had proclaimed that he would kill the deceased. In fact PW-14 categorically states that all the persons present were loudly talking in local dialect and he could not understand anything. PW-26 has deposed that when Sh. Shyam Singh slapped Bir Singh, the latter got enraged and said that he would teach for former a lesson for this humiliation. However this witness qualifies his statement by deposing that the exact words used by accused Bir Singh was “KHAMYAZA” and he is not aware of the meaning of the word “KHAMYAZA”. This does not mean that he had intention of killing the deceased. KHAMYAZA means consequences. In any event this version does not stand corroborated by any of the other witnesses present at the spot. Importantly this witness is related to deceased Shyam Singh through his mother. He is an interested witness. Hence not much reliance can be placed on this part of his statement. Sh. Amar Singh (PW-1), son of the deceased admits that when the police reached at the spot to carry out the initial investigation accused Bir Singh was also there in his capacity as Pradhan of the panchayat. He had also accompanied him along with the dead body to the hospital. He was 9 also present amongst the mourners when the dead body was provided shrouds. This negates the theory of animosity and motive. He further admits that neither did his father nor did he take the threats meted by accused Bir Singh seriously. Thus it cannot be said that accused Bir Singh was holding a motive to kill the deceased. He may be having a genuine grudge but that by itself would not amount to motive to kill. 14. For the aforesaid reasons we differ with the findings recorded by the learned Sessions Judge on this point. 15. With regard to the motive of accused Sant Ram it is the prosecution case that deceased Shyam Singh wanted to purchase the shares of Sh. Dipa Ram, Sh. Tika Ram and Sh. Gulab Singh in the land which was jointly owned with other persons. Since the said persons were not ready and willing to sell their shares to Shyam Singh he therefore approached Sh. Bija Ram (PW-8) to purchase the same in the name of his son Sh. Rattan Singh and later on transfer it to him. Sh. Bija Ram bought the share of Sh. Dipa Ram and Sh. Tika Ram and sent a letter (Ext. PC) to the deceased calling upon him to have discussion in this regard. There is no further evidence than this. Mere fact that two persons are interested in purchasing the very same property by itself would not mean that each one of them would have motive to kill the other so that the survivor may have no difficulty in purchasing the property. The property could have been purchased only if the land owner was desirous of selling the same. The version of Sh. Bija Ram (PW-8), to our mind does 10 not inspire confidence. He admits that Sant Ram’s grand father had filed a case against his father. He further admits that he did not disclose the fact that Sh. Shyam Singh had wanted to purchase the property to the police. Why so? Has not been explained. He appears to be a planted witness. 16. Hence it cannot be said that the accused persons had any motive to kill the deceased. 17. As regard the second circumstance the prosecution has relied upon the deposition of Sh. Amar Singh (PW-7), Sh. Bija Ram (PW- 8), Sh. Madan Singh s/o Sh. Sunder Singh (PW-9) and Sh. Madan Singh s/o Sh. Baru Ram (PW-10). 18. The learned Court below has succinctly dealt with this circumstance by holding that :- “26. … PW-7 Amar Singh has stated that on 12.8.1993 he had gone to Shillai where deceased Shyam Singh met him in the bazaar and around 6.00 in the evening he alongwith the deceased and two other persons, named Dharam Singh and Gulab Singh, started for village Naya and on reaching village Naya while he went to his house, the deceased went to the house of Bija Ram of his village. Bija Ram (PW8) has stated that Shyam Singh came to his house in village Naya on 12.8.1993 around 7.00 PM and left around 8.00 or 8.15 PM. It may be stated here that village Burasli falls on the way from village Naya to village Pab Manal, where the deceased used to reside. The distance between Naya and 11 Burasli is 1/2 KM, per deposition of PW-1 Amar Singh, the son of the deceased. That means, the deceased reached the place where his dead body was found between 8.15 and 8.30 PM. There is no reason to disbelieve the depositions of PW7 Amar Singh and PW8 Bija Ram so far as these pertain to the fact that the deceased happened to pass the site of the occurrence that night between 8.15 and 8.30 PM. PW9 Madan Singh has deposed that on 12.8.1993 he had gone to Shillai and around 5.30 PM he started back for his village Pab in the company of Babu Ram and Bishan Singh and that when they reached near Burasli, accused Bir Singh and Bija Ram also joined them and they had started walking together in the direction of Pab. He has stated that when they went a little beyond Burasli accused Sant Ram appeared from the opposite direction and that he was carrying a bucket, a gunny bag, a rope and a scythe and that while he, Bija Ram, Bishan Singh and Babu Ram kept on walking in the direction of their destination, accused Bir Singh stopped and started talking to accused Sant Ram. PW10 Madan Singh has stated that accused Sant Ram used to work as a labourer alongwith him at a place called Bahattar at the relevant time and that on 12.8.1993 after finishing his work, he went to Shillai and thereafter returned to his village via Naya and Burasli and around 7.15 PM, he saw the two accused in the company of each other at Burasli. He has stated that the two accused were walking in the direction of village Naya. He has also 12 stated that on enquiry accused Bir Singh told him that they were going to village Naya. He has also stated that Sant Ram was carrying a gunny bag, a Darati, a rope and a ‘Dibba’. The police recorded the statements of these witnesses long after the arrest of the two accused. Statement of Madan Singh PW9 was recorded on 23.8.1993. No explanation has been put forward as to why the statement of this witness was not recorded soon after the arrest of the accused. The witness has stated that he did not disclose to anybody, except the police, when he made the statement on 23.8.1993 that the two accused meet each other near Burasli. The witness though says that he had gone to Shillai that day to do shopping, but at the same time he says that he did not buy anything and he returned home empty handed. This suggests that his deposition that he went to Shillai that day and on the way back he saw the two accused in the company of each other near the site of the occurrence may not be correct. PW10 Madan Singh says that the route which he had followed that day was longer than the usual route by which he used to go to his place of work and return to the village. He has stated that he followed the longer route only that day. No explanation has been given by him for following the longer route that day, instead of the usual shorter route. Thus, he is also a chance witness and the possibility of his being a procured witness cannot be ruled out. This is particularly so when the police recorded his statement on 24.9.1993, 13 or say about 1 ½ month after the alleged occurrence and the arrest of the accused. 27. In view of the above discussed position, it cannot be said that the two accused were seen near the site of the occurrence around 8.15 or 8.30 PM on 12.8.1993, when the occurrence is alleged to have taken place.” 19. From the record it could not be pointed out as to how the said findings are false. 20. We may further point out that in his cross examination PW-7 admits that father of accused Sant Ram had filed a case in a civil court against his father and the matter is pending in the Court at Nahan. So false implication cannot be ruled out. To the same effect is the statement of Bija Ram (PW-8). Version of Sh. Madan Singh (PW-9) also does not inspire confidence. He admits his presence at the time when the police came at the spot on 13.8.1993. Yet he did not inform anybody of having seen the accused persons together the previous evening which fact he admits to have disclosed only to the police and that too on 23.8.1993. Admittedly the police had called him to Shilai on the said date. Version of PW-10 also does not inspire confidence for the very same reason. Police had called him to the police post at Shilai on 24.9.1993 where his statement was recorded. 21. In order to prove the third circumstance the prosecution has relied upon the testimony of Sh. Budh Ram (PW-3) and Sh. Liaq Ram (PW-11). Now according to PW-3 on 12.8.1993 when he and 14 his wife, after taking meals had retired to their bed there was knock at their door. He inquired as to who was knocking at the door when Bir Singh replied that it was he accompanied by Sant Ram. Budh Ram opened the door. He inquired from the accused if they had taken their meals. When they answered in the negative he asked his wife to cook food for them. In the meanwhile, Sh. Liaq Ram (PW-11) came to his house and requested him to examine his brother who was seriously ill. In his house, Sh. Liaq Ram told Budh Ram that there was a rumour in the village that some incident had taken place in Burasali and cries of someone being beaten up by somebody were heard in village Naya. On return from Liaq Ram’s house he inquired from the accused as to what had happened at Burasali. After reluctance they admitted to have quarrelled with the deceased Sh. Shyam Singh. To enable the accused to wash their hands his wife brought water. The accused washed their hands in a ‘thali’(plate) and the water collected therein turned red like blood. On query from the accused as to how their hands got smeared with blood no satisfactory reply was given. However, while taking meals they confirmed to have inflicted cut injuries on Sh. Shyam Singh by means of a ‘dangra’ on the village path at Burasali. It is further his version that he noticed stains of blood on the clothes of the accused later. The accused persons demanded gunny bag or ‘kilta’ (large sized conical basket) but when he refused to oblige, accused Bir Singh proclaimed that they were not dependent upon any body and that nobody could come to know about their deed. The accused 15 persons threatened him that in case he opened his mouth and disclosed the incident to anybody he would be done to death. It is further his version that while leaving, both of them left a rope and scythe in his house. 22. Now the version of this witness is highly unbelievable. He does not appear to be a reliable and a truthfull witness. He himself was a suspect. He has made several improvements and contradictions from his previous statement recorded under Section 154 Cr. P.C. In statement (Ext. DD) there is no mention that Sh. Liaq Ram had told him that there was a rumour in the village that cries of someone coming from the side of Burasali were heard. The said statement is also silent about the fact that the accused persons had threatened him when he refused to meet the demand of ‘kilta’ or gunny bag. There is also no mention that accused left rope and scythe at his house. There is also no explanation why he did not inform the police about the same at the earliest. This fact is not recorded in statement (Ext. DE). The same was produced by his wife before the police who has not been examined in Court. PW-2 admits that scythe and rope are available almost in all houses of the area. 23.