IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.163 and 196 of 2005 Decided on: August 4, 2008. Cr. Appeal No.163 of 2005 Rakesh Kumar and another Appellants Vs. State of Himachal Pradesh Respondent Cr. Appeal No.196 of 2005 State of Himachal Pradesh Appellant Vs. Satish Kumar Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 No. For the Appellant(s) : Mr. N.K. Thakur Advocate in Cr. A. No.163/2005 and Mr. P.K. Sharma, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G. in Cr. Appeal No.196/2005 For the Respondent(s) : Mr. P.K. Sharma, Addl. A. G. with Mr. Anil Jaswal Dy. A. G. in Cr. A. No.163/2005 and Mr. Ajay Sharma, Advocate in Cr. A. No.190/2005. Surjit Singh, Judge (oral) We are disposing of both these appeals by a common judgment, because the trial Court’s judgment, assailed in both the appeals, is the same. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Appeal No.196 of 2005 has been filed by Rakesh Kumar and Kashmir Singh, who are real brothers. They have been convicted of offences, punishable under Sections 302, 201 read with Section 34, IPC and Section 120-B IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 30,000/- each, in respect of offence under Section 302 IPC read with Section 34 IPC, rigorous imprisonment for three years and fine of Rs.5000/-each, in respect of offences under Section 201 read with Section 34 IPC and rigorous imprisonment for six months and fine of Rs.5000/- each, in respect of offence under Section 120-B IPC, for allegedly murdering one Sudershan Kumar. 3. Appeal No.196 of 2005 has been filed by the State challenging the acquittal of Satish Kumar, respondent in the said appeal, who was tired alongwith the aforesaid two appellants. 4. Facts relevant for disposal of both the appeals may be stated thus. Three persons, namely Rakesh Kumar and Kashmir Singh, appellants in Criminal Appeal No.163 of 2005 and Satish Kumar, respondent in Criminal Appeal No.196 of 2005, were sent up for trial for offences, punishable under Sections 302, 201 read with Section 34 IPC and Section 120-B IPC, for allegedly conspiring to murder deceased Sudershan Kumar and ultimately murdering said Sudershan Kumar in prosecution of that conspiracy and then disposing of his dead body, with a view to screening themselves from punishment. …3… 5. Sessions Court at Una, which tried the matter, found Rakesh Kumar and Kashsmir Singh (appellants in appeal No. 163 of 2005) guilty and convicted and sentenced them, as aforesaid. The third accused, namely Satish Kumar (respondent in appeal No.196 of 2005) was acquitted. 6. Allegations, which were made against appellants and respondent Satish Kumar, were as follows. 7. Deceased Sudershan Kumar was resident of village Ujey, falling within the jurisdiction of Police Station, Dehra. He was a blacksmith by occupation. He set up a workshop at a place called Chambi, falling within the jurisdiction of Police Station, Amb. Adjacent to his workshop, appellants Kashmir Singh and Rakesh Kumar, who, as already noticed, are real brothers, had their shop. On 26th March, 2001, Sudershan Kumar came to Chambi, to work at his workshop from his native village Ujey. He did not return that day. Next day, i.e. on 27.3.2001, his brother PW-10 Rattan Chand went to Chambi with his meals. He did not find the deceased at Chambi. Appellant Rakesh Kumar, who was present in his shop, told PW- 10 Rattan Chand, on an inquiry by the latter, that deceased had gone to Hoshiarpur to buy some material to be used by him at his workshop. Deceased did not return to the village even on 27th and 28th March, 2001. PW-10 Rattan Chand then informed his brother PW-8 Surjit Singh, on telephone, at Delhi, where he (PW-8 Surjit Singh) was employed as a carpenter. PW-8 Surjit Singh came to the village on 30th March or 1st April, 2001. He …4… went to Police Station, Dehra and lodged report, copy Ext.PW13/A, that his brother Sudershan Kumar had been missing from his workshop at Chambi, since 26th March, 2001. Police could not get any clue of the deceased for more than 13 months. 8. On 3rd May, 2002, PW-8 Surjit Singh, who had by then started working at the workshop of Sudershan Kumar, saw appellant Kashmir Singh, wearing a wrist watch. That wrist watch belonged to his missing brother Sudershan Kumar. PW-8 Surjit Singh enquired from appellant Kashmir Singh about that wrist watch, but the latter did not give any satisfactory reply. Instead he concealed the wrist watch somewhere and started saying that he did not have any wrist watch with him. PW-8 Surjit Singh then went to PW-11 Vijay Kumar and one Madan Kumar and told them that he had seen the wrist watch of his missing brother Sudershan Kumar with appellant Kashmir Singh. They advised him to report the matter to the police. PW-8 Surjit Singh then went to his village Ujey and informed PW-12 Harbans Lal, a retired commandant from Border Security Force, about his having seen appellant Kashmir Singh wearing the wrist watch of his missing brother. 9. Next day, PW-8 Surjit Singh, accompanied by PW-12 Harbans Lal, went to Police Station, Dehra. Around 10 or 11 AM some police people from Dehra Police Station came to Chambi. On reaching Chambi, those police officials told PW-8 Surjit Singh and PW-12 Harbans Lal that since the area fell within the …5… jurisdiction of Police Station, Amb, they should lodge the report at Police Post, Chintpurni, situated at a short distance. Both of them then went to Police Post, Chintpurni and lodged report, copy Ext.PW4/A. This report was entered in Rojnamcha. Its copy was sent to Police Station, Amb, where the case was formally registered, vide FIR Ext.PW5/A. 10. PW-20 ASI Jaspal Singh reached the spot. He made inquires with the people, present on the spot, and recorded their statements, under Section 161 Cr. P.C. Appellants Kashmir Singh and Rakesh Kumar were arrested around 4.30 PM. Appellant Kashmir Singh made a statement that he had kept concealed a wrist watch in the drawer of the counter of his shop and could get the same recovered. That statement was reduced into writing, in the form of memo. Ext.PW12/B. On the basis of this disclosure statement, wrist watch was recovered from the aforesaid drawer, which was taken into possession vide memo. Ext.PW8/A. Appellant Rakesh Kumar also made a statement on the same day that dead body had been burnt by using diesel in Bhadra Kali Khad, and that skull and some bones of the deceased were still lying on the spot. That statement was also reduced into writing, in the form of a memo., which is Ext.PW12/C. Thereafter appellants Rakesh Kumar and Kashmir Singh led the police to some bushes, in Bhadra Kali Khad, at a distance of 8-10 kilometers from Chambi. A human skull and some bones were found lying, which were taken into possession. PW-16 Dr. D.K. Ghosh, a Forensic Science Expert, gave the …6… opinion that the skull and the bones were of a male human being, aged between 25 to 30 years. Bones and the blood samples of the parents of Sudershan Kumar were sent for DNA tests to Central Forensic Science Laboratory at Chandigarh, where PW-22 Rajiv Garoti, carried out the test and gave the report that DNA profile of the parents of the deceased matched with the DNA profile of the skull and bones of the deceased. 11. It is clear from the summary of the allegations, which the prosecution made against the appellants, that the prosecution sought to connect the appellants and their accomplice Satish Kumar, who allegedly assisted them in disposing of the dead body, with the crime, by the alleged disclosure statements of the appellants, leading to the recovery of the wrist watch of the deceased and the skull and the bones of the deceased. 12. Prosecution examined PW-8 Surjit Singh, a brother of deceased Sudershan Kumar, PW-12 Harbans Lal and PW-20 Jaspal Singh, to prove the alleged disclosure statements and the recovery of the wrist watch and the skull and the bones of the deceased, pursuant to the alleged disclosure statements. 13. Trial Court believed the evidence adduced by the prosecution so far as appellants Kashmir Singh and Rakesh Kumar are concerned and convicted and sentenced them, as aforesaid. So far as Satish Kumar, the accomplice of the appellants, is concerned, the trial Court acquitted him holding …7… that there was no evidence to connect him with the alleged crime.. 14. We have heard the learned counsel for the appellants as also the learned Additional Advocate General and also gone through the evidence. On appraisal of the evidence we find that the testimony of PW-8 Surjit Singh, PW-12 Harbans Lal and PW- 20 Jaspal Singh, regarding making of the alleged disclosure statements by the two appellants and the discovery of the wrist watch and the skull and bones of the deceased, pursuant to the aforesaid statements, is contradictory, inconsistent and full of infirmities and hence, does not prove the case. A bare reading of the testimony of PW-8 Surjit Singh suggests that it was on 3rd May, 2002 itself, when he saw Kashmir Singh wearing the wrist watch of his brother Sudershan Kumar, that the police reached the spot, recorded the statement, under Section 27 of the Indian Evidence Act of appellant Kashmir Singh and recovered the wrist watch and it was also on that very day that appellant Rakesh Kumar made disclosure statement leading to the discovery of the skull and 7-8 bones, from bushes in Bhadra Kali Khad. He stated that he and PW-12 Harbans Lal, made a telephonic call on 3rd May, 2002 itself and that soon thereafter some policemen from Police Station, Dehra reached there and told that since the place fell within the jurisdiction of Police Station, Amb, the matter was required to be reported at Police Post, Chintpurni. He further stated that he and PW-12 Harbans Lal then went to Police Post, Chintpurni and lodged report Ext.PW4/A and after that people …8… from Police Post, Chintpurni and Amb reached the spot and recorded the aforesaid disclosure statements of the two appellants and effected recoveries of wrist watch and skull and bones. He has nowhere stated that he and Harbans Lal (PW12) went to Police Station, Dehra on the next following day, i.e. 4th May, 2002 nor does he say that the policemen from that Police Station accompanied them to Chambi and asked them to lodge report at Police Post, Chintpurni. The record, however, shows that disclosure statements were made and recoveries pursuant thereto were effected on 4.5.2002. 15. PW-12 Harbans Lal, however, says that on 3rd May, 2002, in the evening, PW-8 Surjit Singh came to his place in village Ujey and told that he had seen Kashmir Singh wearing his missing brother Sudershan Kumar’s wrist watch and that not only he did not give any satisfactory explanation for being in possession of his brother’s wrist watch, but also concealed that wrist watch and that next day he accompanied by PW-8 Surjit Singh went to Police Station, Dehra and some people from that Police Station came to Chambi and advised that matter was required to be reported at Police Post Chintpurni as the area fell within the jurisdiction of Police Station, Amb and both of them then went to Police Post Chintpurni and lodged the report. This statement of PW-12 Harbans Lal is contradictory to the testimony of PW-8 Surjit Singh. Contradictions in the two statements are not only with regard to the day on which the two appellants allegedly made disclosure statements and got …9… recovered the wrist watch and the skull and the bones, but also as to the manner in which the officials of Police Station, Dehra were informed about appellant Kashmir Singh being allegedly in possession of wrist watch of deceased Sudershan Kumar. PW-8 Surjit Singh says that the police was called telephonically, while PW-12 Harbans Lal says he and PW-8 Surjit Singh went to Police Station, Dehra to call the police. 16. PW-20 ASI Jaspal Singh stated that it was on 4th May, 2002 that report Ext.PW4/A was lodged at Police Post, Chintpurni and that he reached the spot, i.e. village Chambi, around 3.30 PM and then arrested the two appellants, after making inquiries with the residents of the area. He stated that after that Kashmir Singh made a statement leading to the discovery of wrist watch and Rakesh Kumar made disclosure statement leading to the recovery of skull and bones of the deceased from the bushes in Bhadra Kali Khad. According to the testimony of this witness, he reached the spot at 3.30 PM, then made enquiries with the people and thereafter arrested the appellants. That means, the alleged disclosure statements were made by the two appellants much after 3.30 PM and it was thereafter that the recoveries were effected. However, PW-8 Surjit Singh says that police reached the spot at 2 PM and immediately thereafter appellant Rakesh Kumar was called by the police from his house. 17. PW-8 Surjit Singh stated that when the police was led by the appellants to Bhadra Kali Khad for recovery of skull …10… and bones, only the two appellants, he and the policemen were there and after some time a photographer also reached. He does not say that PW-12 Harbans Lal or Smt. Sarita Rana, Pardhan of the Panchayat and one Suram Singh, were also there at the time of the recovery of the skull and the bones. However, recovery and seizure memo of skull and bones, Ext.PW12/A, is signed by Smt. Sarita Rana, Pardhan of the Gram Panchayat and one Suram Singh, both of whom were not examined by the prosecution. 18. Story of the prosecution that appellant Kashmir Singh got recovered the wrist watch of the deceased also does not appear to be natural. It is the prosecution’s own story that when on 3rd May, 2002, appellant Kashmir Singh was seen wearing the wrist watch by PW-8 Surjit Singh and the latter questioned him as to where did he get that wrist watch from, appellant Kashmir Singh not only did not give any satisfactory explanation, but also concealed the wrist watch and started saying that he did not have any wrist watch with him. 19. If appellant Kashmir Singh had been seen wearing the wrist watch of the deceased on 3rd May, 2002 and he had concealed it, when PW-8 Surjit Singh saw him wearing that wrist watch and enquired about the same, it is not believable that he would have kept the same in the drawer of his counter or would have allowed it to remain there, even after the policemen from Police Station, Dehra had visited the place and told PW-8 Surjit Singh that the matter was required to be reported at Police …11… Station, Chintpurni, as the place fell within the jurisdiction of Police Station, Amb. 20. For the foregoing reasons, we are of the considered view that the trial Court has fallen in grave error by relying upon the evidence of PW-8 Surjit Singh and PW-12 Harbans Lal to hold appellants Rakesh Kumar and Kashmir Singh guilty. Consequently, appeal No.163 of 2005, filed by them is accepted and the judgment of the trial Court convicting and sentencing them is set aside and they are acquitted. They being in jail, serving out the sentence awarded by the trial Court, are ordered to be released, forthwith, in case their detention is not required in any other case. 21. As a result of the above stated position and also the fact that there is absolutely no evidence against Satish Kumar, the accomplice of appellants Kashmir Singh and Rakesh Kumar, appeal No.196 of 2005 filed by the State against him is dismissed. 22. Both the appeals stand disposed of. ( R.B. Misra ), J. August 4, 2008, (ss) ( Surjit Singh ), J.