IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.345 of 2006 Decided on : March 15, 2010 Balak Ram …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : M/s M.S. Guleria & Rakesh Manta, Advocates. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J(Oral) Appellant Balak Ram is aggrieved by the judgment, dated 11th August, 2006, of the Sessions Court, whereby he has been convicted of offence, under Section 302 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo imprisonment for a further period of one year. 2. Appellant is a Carpenter by occupation. Often he used to be away from his house to earn his livelihood, as he used to work at the places of different persons at different places as Carpenter. He was married to the deceased (Tulsi Devi) five years before her death, which Whether reporters of the local papers may be allowed to see the judgment? …2… took place on the night intervening 14th and 15th August, 2004. The appellant, it is alleged, used to suspect the fidelity of the deceased and because of that illtreat her. Once about a month prior to her death, the deceased was allegedly attempted to be set ablaze, when she was with the appellant at Kullu, where the latter was engaged as Carpenter those days. 3. On the night intervening 14th & 15th August, 2004, dead body of the deceased was spotted in the field by Megh Singh (CW-1) and Hari Singh (CW-2), examined by us during the hearing of the appeal. Both these witnesses immediately informed Nand Lal (PW-2), the Pradhan of the Panchayat, who, in turn, gave a ring to the Police. Police, headed by PW-9 SI Naresh Kumar, reached the spot around 2.30 a.m. Inquest was conducted. Several injuries were noticed on the dead body. It was sent to Zonal Hospital, Mandi, where postmortem was conducted by PW-3 Dr. Jiwa Nand Chauhan, who noticed the following antemortem injuries on the dead body: “1. There was a contusion bluish brown in colour on the left frontal area of the scalp 6x4cm with irregular margins with underlying fracture line in left frontal bone lying obliqually anterior medially. 2. Another contusion on the right parieto- occipital region over scalp and below scalp tissue 3x10 cm with clotted and fluid blood, antimortem. …3… 3. There was superficial contusion more marked on Inner surface on both eyelid (right eye), conjuctiva red-in-colour. 4. Contusion of both eye lids of left eye brownish red on inner surface with slight buldging out of eyeball with superficial imprint abrasions of nail marks in both upper and, lower eye lid outer aspect. 5. There are multiple imprint abrasions, some straight and some cresentric, redish in colour present on the base of the nose, both nostrils, both cheeks, mandibular area, both sides of neck more on both sterno cleidomastoied mussles, antemortem in nature. 6. There were contusions brownish red, on external surface of nose, base with underlying fracture of nasal bone with lot of blood clots and fluid blood inside nostrils. The nasal mucosa was contused redish in colour all over in both nostrils. 7. There are two bluish brown contusions on inner surface of upper lip opposide to both canines 1x1Cm. antemortem in nature. There was also contusion on inner surface of upper lip with split laceration opposite to right lower first premolar dry blood over and the root of the first premolar also contains blood. 8. A big contusion on anterior surface and sides of neck 15Cm in length 4 Cm. wide in centre and 8½ CM wide on sides up to middle of sternocleidomastoid mussles on both sides having multiple overlapping hapazard contusion lines with depressions brownish-in-colour, dry and parchment like infrontal region starting from upper border of thyroid to just above superasternal notch and on the sides 1 to 1½ CM below mandibular margins with some superficial abraided skin and multiple crecentric and straight nail marks abrasions. The Tissue below skin i.e. subcutaneous tissue shows extravasation of blood, brownish red. The mussle below contused area are also …4… congested brownish red on front inside of the neck. The external juglar veins congested, distended and full of thick dark colour blood. The thyroid, cricoid carilage and tracheal rings were contused. Trachea was full of blood stained froth and mucosa of both larynx and trachea contused. There were haemorrhagic spots on pharynx and upper part of oesophagus where inner part of ‘Tili’ (Nose pin) was found. There was contusion of both common carotid arteries and tear on the inner surface of both argeries. After removing the neck tissue, there was contusion on anterior surface of cervical spine at the level of C2-C3, C4 with fracture dislocation of cervical spine C2 at its junction with C3 vertebra with fluid blood at site. Spinal cord intact but neck was highly flexible and movable to all sides due to fracture dis-location. After opening the trachea and going down the bronchi are full of blood stained froth at bifurfaction. 9. There was contusion on the back in infra scalplar region over T2 and T3 thoracis vertebra 3x3Cm. ize brownish red in colour, antimortam in nature more towards left side with irregular margins. 10. There are multiple small petechial haemorrhagic spots in the both cheeks with brownish dis-colouration of the face, Ear lobuls, Nose due to Engorgement of superficial vessles of neck. Haemorrhagic shocks were also present in both lips, and eyelids external surface.” Doctor opined that the cause of death was throttling and smothering and the head injury. According to him, injury on the head could have been caused by means of a Kudali (hoe). The death was opined to have taken place within 2 to 5 minutes of the infliction of the injuries and the time lag …5… between the death and the postmortem examination, which was conducted on 15th August, 2004 at 3 p.m., was 12 to 24 hours. 4. Appellant was arrested by PW-9 SI Naresh Kumar, on 15th August, 2004, from the fields, where he was allegedly hiding. There was some clotted blood on his face. He was allegedly taken to the doctor, who removed the dried stain of blood from his face and sealed the same in a bottle, which was sent to the Chemical Examiner. 5. Appellant was subjected to interrogation, after his arrest. He made a disclosure statement, leading to the discovery of weapon of offence, which is Kudali Ex. P-1. At the time of his arrest, the appellant was wearing only underwear and no other clothe. That underwear was taken into possession and sent to the Chemical Examiner. Blood sample of the deceased was also taken. Blood stained earth was also lifted from the spot. Shirt of the appellant was also found lying in the field, which was identified by his brother Tek Chand (not examined as witness). Weapon of offence, i.e. Kudali Ex. P-1, underwear of the appellant, blood sample of the deceased and the blood stained earth picked from the spot were sent to the Chemical Examiner, who opined that underwear, Kudali and the earth had stains of human blood of Group ‘A’ and the sample blood of the …6… deceased was also of Group ‘A’. Report of the Chemical Examiner is Ex. PW-9/G. 6. Appellant was charged with offences, under Sections 498-A and 302 of the Indian Penal Code. He pleaded not guilty to the charge and was, therefore, put on trial. 7. Prosecution sought to prove the following circumstances to connect the appellant with the commission of the crime: “1. That the accused while in police custody gave disclosure statement U/s 27 of the Evidence Act and in pursuance of the said disclosure statement the accused got recovered spade (Kudali) which on chemical analysis was found to be containing blood stains of the same group which – blood group – the deceased was having. 2. That the T-shirt of the accused which was identified by his brother named Tek Chand to be that of the accused was also recovered from the field where the dead body of the deceased by lying. 3. That the under-wear of the accused on chemical analysis was also found to be containing blood stains of group ‘A’ similar to the blood group of the deceased. 4. That the accused and the deceased were living in the same house and the deceased was in the house of the accused at the date of occurrence and there is no explanation offered by the accused as to how murder of the deceased had taken place at the relevant date. 5. That the relation of the accused and the deceased were strained as the accused used to suspect the character of the …7… deceased and accordingly the same proves the motive on the part of the accused to commit murder of the deceased.” 8. Appellant took the plea that he was not at home on the relevant night and that he had no knowledge as to who killed the deceased and in what manner. 9. Learned trial Court concluded that out of the aforesaid five circumstances, four circumstances, i.e. Circumstances No.1,2,4 and 5 stood proved and proof of these circumstances made a complete chain leading to no other hypothesis except that of the guilt of the appellant and consequently convicted and sentenced him, as aforesaid. 10. We have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. 11. On careful scrutiny and analysis of the evidence, we are of the considered view that the evidence adduced by the prosecution is quite shaky and does not conclusively prove any of the aforesaid four circumstances. 12. First circumstance is regarding the recovery of weapon of offence, i.e. Kudali Ex. P-1, at the instance of the appellant. Recovery is alleged to have been effected by PW-9 SI Naresh Kumar in the presence of PW-2 Nand Lal. No other witness of recovery of Kudali was examined by the prosecution. This recovery was allegedly effected pursuant …8… to a disclosure statement, Ex. PW-2/A, made by the appellant. As per Ex. PW-2/A, appellant told the police that he had kept Kudali Ex. P-1 hidden under the heap of hay in the field. However, PW-2 Nand Lal stated that Kudali was recovered from a cattle-shed. PW-9 SI Naresh Kumar, the Investigating Officer, stated that the Kudali was recovered from the field, which was taken into possession vide memo Ex. PW-2/B. He did not say that it was lying hidden in a heap of hay. His saying that it was recovered from the field implies that it was lying in open in the field. If that is so, it cannot be said that the recovery of Kudali was effected pursuant to the alleged disclosure statement of the appellant. Thus, the first circumstance, regarding recovery of weapon of offence, cannot be said to have been established. 13. Next circumstance is that the appellant was naked, wearing only underwear, when arrested from the field, on the next day at 8.30 a.m. and that his shirt was found lying 20 feet away from the site where the dead body lay. There is absolutely no evidence on record, suggesting that shirt Ex. P-6, which had allegedly been recovered from the field at a short distance from the dead body, is that of the appellant. According to the prosecution, Tek Chand, a brother of the appellant, had identified the shirt to be that of the appellant, at the time when it was picked up and …9… made into a parcel on the spot. Prosecution did not examine Tek Chand nor did it lead any other evidence to prove that the shirt, in fact, belonged to the appellant. 14. Third circumstance pertains to the presence of human blood of Group ‘A’ on the underwear allegedly of the appellant. Underwear was not produced nor has any evidence been adduced to show that the underwear of the appellant had been taken into possession. Trial Court has also held that this circumstance does not stand established. 15. As regards Circumstance-4 that the appellant and the deceased were together in the house on the relevant night, which according to the trial Court stands proved, suffice it to say that not only that there is no evidence, indicating that the appellant was in the house on the relevant night, but there is definite evidence that he was not in the village that night. Reference in this behalf may be made to the testimony of CW-1 Megh Singh and PW-2 Nand Lal. CW-1 Megh Singh very categorically stated that the appellant was away from the village on the relevant night, in connection with his occupation as Carpenter. PW-2 Nand Lal stated that the appellant reached the village next morning. There should be no reason to disbelieve the testimony of these two witnesses, especially when the prosecution did not question the testimony of its witness PW-2 Nand Lal by seeking leave of the Court to cross- …10… examine him. Thus, in our considered view this circumstance also does not stand established. 16. Next circumstance is that the deceased and the appellant were having strained relations, because the appellant suspected fidelity of the deceased. We find absolutely no evidence in support of this circumstance. Father of the deceased, PW-1 Jawahar, very categorically stated that the deceased and the appellant used to live peacefully. Not only this he further stated that he had lodged the report against the appellant only on suspicion. 17. No doubt, PW-2 Nand Lal stated that once it had been reported to him that the deceased had been sought to be set ablaze by the appellant and that the matter had been compromised, but his statement cannot be taken to be gospel truth, because according to him the compromise had not been reduced into writing, while the father of the deceased stated that a writing of the compromise had been prepared and was executed by the appellant. 18. In view of the abovestated position, we are of the considered view that the circumstantial evidence adduced by the prosecution in this case is not enough to reach the conclusion that the appellant is guilty of the offence. Consequently, appeal is accepted, judgment of the trial Court convicting and sentencing the appellant of the offence, under Section 302 of the Indian Penal Code, is set …11… aside and the appellant is acquitted. He being in jail, serving the sentence awarded by the trial Court, is ordered to be released, immediately, in case his detention is not required in any other case. Appeal stands disposed of. ( Surjit Singh ), J March 15, 2010(sd) ( Surinder Singh ), J