IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 458 of 1996 Date of decision: 19.04.2010 State of H.P. …. Appellant Vs. Sham Lal and others ... Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 For the appellant-State: Mr. Vivek Singh Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Dy. Advocate General For the Complainant: Mr. Rakesh Jaswal, Advocate For the respondent No.1: Mr. Vinay Thakur, Advocate. Deepak Gupta, J.(oral) Respondent No. 2 was declared a proclaimed offender and, therefore, this appeal is being heard on merits, qua respondent No. 1 only. 2. This appeal by the State is directed against the judgment dated 30th March, 1996 delivered by the learned Additional Sessions Judge, Shimla in Sessions trial No. 22-S/7 of 1994 whereby he acquitted the accused of having committed an offence punishable under Section 302 read with Section 34 IPC. 1 Whether the reporters of the local papers may be allowed to see the Judgment. 2 3. The undisputed facts are that the dead body of Chander Krishan (deceased) was found in the morning of 14.11.1993, at about 6-7 A.M. in Tikkar Bazar. His brother, PW-1, Jai Kishan was informed about this fact. He left his home and reached the spot and then telephonically informed the SHO, Police Station, Rohru about the murder of his brother. Report in this behalf being Ext. PA was recorded by PW-24, Inspector Rikpa Giachho at Police Station, Rohru. Thereafter, the police came to the spot. PW-11 Sita Ram was interrogated by the police on 14th and 15th November, 1993. Thereafter, he left for his native village at Nalagarh and according to the prosecution, came back on 25.11.1993. 4. On his return, he made a statement to the police to the effect that he alongwith the accused Sham Lal was running a meat shop as partner and they had employed Sunil(accused No.2), a Gorkha as an employee in the shop. All of them were residing with Sham Lal. He further stated that on the night intervening 13th and 14th November, 1993, all of them consumed alcohol in the house of deceased Sham Lal. Thereafter, they all lay down in one room. Then, accused No. 2, Sunil, gave a fist blow on the neck of Chander Krishan. Thereafter, the two accused took Chander Krishan outside the room and he kept sleeping in the room. Both the accused persons returned after about two hours and their clothes were stained with blood. The accused made an extra judicial confession before PW-11 Sita Ram and stated that they had 3 killed the deceased Chander Krishan. They, however, threatened him that if he disclosed about this fact to anybody, he would also meet the same fate. According to PW-11, thereafter, he did not disclose this fact to anybody. He woke up next morning at 9-10 A.M. He was asked by accused No. 1 to give Rs.1000/- to accused No.2. He gave this amount under duress to accused No. 2 and thereafter accused No. 2 absconded. 5. Statement of PW-11 was recorded before the Sub Divisional Magistrate under Section 164 Cr.P.C., but the same has not been proved on record. 6. On the basis of the statement made by PW-11, accused Sham Lal was arrested and interrogated by the police. During the course of investigation, he allegedly made a disclosure statement Ext. PM, under Section 27 of the Indian Evidence Act, in which he stated that he had hidden the blood stained clothes below a cot in his room at Tikkar. This statement was recorded on 29th November, 1993. On the basis of this statement the recovery of incriminating articles was effected. 7. The clothes, weapons of offence and other articles were sent to chemical examination who opined that the blood found next to the dead body, the blood of the finger prints on the pillar, blood on the stone, blood on the knife and blood on the clothes was of Group ‘A’. The blood on certain clothes worn by the accused was found to be human blood but grouping 4 could not done. On the Tokka the quantity of blood was very small and could not be analyzed. 8. On completion of investigation, report under Section 173 Cr. P.C. was filed against the accused. Since the offences with which the accused were charged were exclusively triable by the Court of Sessions, the case was committed to the learned Additional Sessions Judge. The accused was summoned and charged for offences committed as aforesaid. He pleaded not guilty and claimed trial. The learned trial Court after trial has acquitted the accused. Hence, the present appeal. 9. We have heard Shri Vivek Thakur, learned Additional Advocate General, Shri Rajesh Mandhotra, learned Deputy Advocate General, Shri Rakesh Jaswal, learned counsel for the complainant and Shri Vijay Thakur, learned counsel for respondent No.1. 10. The whole case of the prosecution revolves around the statement of PW-11 Sita Ram and the recovery of the clothes of accused, tokka and knife which according to the prosecution, bear human blood of Group ‘A’, which is the same group as that of the deceased. 11. This is admittedly a case which is based on circumstantial evidence, since there is no eye witnesses to the occurrence and the prosecution has relied upon the following three circumstances in support of its case :- i) Motive of crime; ii) Extra judicial confession made by the accused to PW-11. iii) Recovery of clothes. 5 12. As far as the motive is concerned, in the complaint Ex.PA filed by brother of the deceased PW-1, there was no mention that the deceased had taken some money from Sunil accused No.2. In the complaint, it is not recorded that why the accused took money from the deceased and when the deceased asked him to return the money, a quarrel took place. PW-1 in his statement stated that about 3-4 days prior to the occurrence, he was told by certain villagers to warn his brother to be careful from the accused. In case this was true and the witness had been warned by his co-villagers that his brother(deceased) should be wary of accused No. 1 Sham Lal, as soon as this witness came to know that his brother had been murdered, he would have immediately expressed his suspicion and told the police that he suspected the involvement of accused No. 1 in the murder of the brother. However, the first complaint Ext. PA is totally silent in this regard. In fact, in the first version as has come in the investigation there was no motive ascribed to any person. It is only after the statement of PW-11 was recorded under Section 164 Cr.P.C. that this motive was brought in. Therefore, this circumstance has not been proved against the accused. 13. The second circumstance is the extra judicial confession. Here, we have to test the veracity of the statement of PW-11, Sita Ram. His version is that 13.11.1993 was Diwali day. On that day, firstly, accused No. 2 borrowed some money from Sham Lal accused No.1. Thereafter, in the evening they all 6 consumed liquor. Then the two accused persons alongwith the witness (PW-11) and deceased Chander Krishan gathered in the house of Sham Lal where they consumed liquor. They decided to sleep in the same room. In the meantime, a quarrel took place between the two accused on one side and deceased Chander Krishan on the other side. The accused No. 2 gave a fist blow of fist on the neck of Chander Krishan but Chander Krishan did not respond. Thereafter, accused No.1 and accused No. 2 took Chander Krishan outside the room. They returned after two hours and their clothes were stained with blood. Without the witness even asking any question, they themselves confessed that they had killed Chander Krishan. Thereafter, accused No.1 demanded money and virtually directed the witness, PW-11 Sita Ram to give Rs.1000/- to accused No.2 Sunil. He stated that he was scared and gave the money as demanded by accused No. 2. Thereafter, accused No. 2 went away. Then accused No. 1 and this witness went to sleep and got up at 9-10 A.M. next morning and by that time dead body of Chander Krishan had already been discovered. 14. It is very important to note as per the version of this witness he was kept by the police in the police station for three days. Though he was not formally arrested, but the fact remains that he was interrogated for three days in the police station. During this period from 14th, 15th and part of 16th November, 1993, the witness did not say a word to the police implicating any of the two accused with the commission of the 7 offence. He thereafter on 16th November, 1993, left for his village and returned on 25th November, 1993. The statement of this witness cannot be relied upon at all as one portion of the statement shows that he remained in police custody and was interrogated and in the other part of the statement, he states that on 14th and 15th November, 1993, he stayed in the same room alongwith Sham Lal. Even if we do not take note of this fact, the main issue is as to why this witness kept silent about the alleged extra judicial confession? The explanation of the witness is that he had been threatened and was scared. One can accept this explanation at best for the first night when he was sleeping in the same room. This explanation cannot be accepted for the next three days when witness was being interrogated by the police. He could have easily told the police about the extra judicial confession. In fact, when he was being treated as an accused, natural human conduct would have been to tell the police about the extra judicial confession made by the accused to him. There was nothing which prevented PW-11 from making a statement before the police, especially when he was being interrogated in the matter. 15. Another very surprising co-incidence is that admittedly, PW-11 went to his native village near Nalagarh on 16th November, 1993. He returned on 25th November, 1993 and suddenly he made statement not only to the police but also before the Magistrate. The statement before the learned Magistrate has not been proved and, therefore, we are not 8 discussing the same in detail. The Magistrate has not been examined as a witness and was given up. There is nothing on record to show that the statement made by this witness was made after following the procedure prescribed under law. As we are not relying upon such statement, we need not dilate on this aspect of the matter. However, we cannot loose sight of the fact that it is only after this statement was made that the accused No.1 Sham Lal was arrested. 16. According to PW-11, he, the deceased and both the accused consumed liquor. The viscera of the deceased was sent to the chemical examiner for analysis. The report of the chemical examiner Ext. P-24/Q-4 is absolutely clear that no alcohol was found in the viscera of the deceased. Therefore, the version of this witness that all of them had consumed liquor appears to be false. It is apparent that he is not telling the truth and, therefore, his statement is highly unreliable and cannot be made the basis to convict the accused. 17. Coming to the third circumstance, i.e. recovery of blood stained clothes and weapons of offence, we are of the considered view, as held by the learned trial Court, that the very recovery itself is extremely doubtful. The accused had 12 days from 14th November to 26th November, 1993 to hide the clothes and weapons of offence. Why did he keep them in his house under the cot? This itself makes the recovery not free from doubt. 9 18. The accused allegedly made the disclosure statement on 28th November, 1993 at Rohru. What prevented the police to immediately proceed from Rohru to Tikkar which is hardly 25 kms from Rohru to make the recovery. We are, here, not dealing with petty crime, but a heinous crime of murder and if a person during the investigation makes a disclosure statement regarding the weapon of offence, then it would be reasonable to expect the police to be prompt and to take immediate action to recover the same. But in the present case the police waited till the next day. The possibility of the recovery being delayed so as to get convenient witnesses cannot be ruled out. 19. The most important fact which makes the entire recovery extremely doubtful is that admittedly PW-11 Sita Ram himself was arrested at the initial stage and was being interrogated by the police. If he was being interrogated what prevented the police from searching the house between 14th to 16th November, 1993? Any Investigating Officer, who knows his job even slightly, would have searched the house of a suspect. It is obvious that the whole story of the recovery has been concocted at a later stage. 20. The law with regard the circumstantial evidence is well settled. It is for the prosecution to prove beyond reasonable doubt all the circumstances from which the conclusion of the guilt of the accused is to be drawn. All these circumstances should be linked together in such a manner that they form a 10 complete chain which is consistent only with one hypothesis i.e. the guilt of the accused. No other hypothesis but the guilt of the accused should be possible. If there is the slightest possibility of some other person being guilty or the accused being innocent then the accused must be given the benefit of doubt and acquitted. 21. In the present case, the prosecution has failed to prove or link the circumstances in the manner required by law. Not only have these circumstances not been proved as pointed out above, but, they have also not been linked in such a manner which leads to the irresistible conclusion that the accused alone and none else could possibly have killed the accused. In the present case, the possibility of the star witness PW-11 Sita Ram himself being perpetrator of the crime cannot be ruled out. Therefore, the learned trial Court was justified in acquitting the accused. We find no reason to differ with the findings of learned trial Court. 22. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge (Rajiv Sharma) Judge April 20, 2010 *brb* 11