1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 238 of 1994. Decided on: 06.06.2008 __________________________________________________________________ State of H.P. ……..Appellant. Versus Kishan Bahadur & another. ……..Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. P.K. Sharma, Additional Advocate General. For respondent : Mr. O.P. Sharma, Sr. Advocate with Mr. Ritesh Sharma, Advocate. ______________________________________________________________ SURINDER SINGH,J (oral). The respondents were tried and acquitted, of the offence under Section 302 read with Section 34 of the Indian Penal Code allegedly for committing murder of Tulsi Ram, an Electrician, employed in Himachal Pradesh State Electricity Board at Rajgarh, by the learned Sessions Judge, which has been challenged in this appeal by the State. In brief, the allegations, on which the respondents put on trial, were that on 11.11.1992 in the evening, the respondents and Tulsi Ram (deceased) alongwith one Bahadur Singh (PW5) consumed one bottle of liquor at the saw-mill of Bhoop Singh (PW8) at village Pabiana. Around 7 P.M., Kishan Bahadur respondent picked up a quarrel with Tulsi Ram aforesaid, on realizing the amount of Rs.300/- which was lent by him to the deceased. Bahadur Singh left the place and went to his house. Thereafter, the respondents and the deceased consumed one more bottle of liquor and took the meals. After taking the meals, they went to their Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 respective houses. It is alleged that after sometime, the respondents visited the room of Tulsi Ram and one of them pressed his testicles and another respondent strangulated him, which caused his death. The respondents concealed the empty bottles of liquor near the saw–mill under the wood dust. Next morning, PW3 Balwanta Ram while returning after defecation, came across the room of the deceased though the door was found shut, but not bolted from inside. He called for the deceased, but there was no response. He opened the door and saw that Tulsi Ram was lying dead on his cot. Some flies were hovering over his mouth. The electric bed-switch wire was inside his quilt. On seeing this, PW3 informed the police. PW1- Ram Sarup, SDO Electricity was informed about the said incident by the police who further contacted PW2 Rajesh Kumar, J.E. Thereafter both of them went to the spot. The police had already reached there. PW2 noticed that the deceased was wearing the shirt and underwear only and blood was oozing from his mouth. The police had also taken in possession a transparent wrapper of cigarette case, which was lying on the spot vide memo Ex.PB. The inquest report Ex.PC was prepared in the presence of PW1 Ram Sarup, SDO and PW2 Raj Kumar JE Electricity department. The autopsy of the dead body was performed by PW13 Dr. O.P. Ramdev. On the medical examination of the dead body, the following antemortem injuries were found:- 1. Abrasion size 3” x 1 ¼” over scrotum on both testicles reddish blue in colour anti-mortem in nature. 2. No visible mark of ligature on neck distending with bluish dcoloouration of skin of neck on dissection petechial haemorrhagic present in sub continuous tissues in front of trachea and larynx fracture of thyroid cartilages. On opening the larynx and 3 thacheamucoss congested lung was found containing blood. Blood was coming out of mouth. Mouth was open. Both the hands were clinched. Postmortem rigidity was present in both upper and lower limb. Postmortem staining present in dependants part of the body. THOREX: Bluish discolouration over upper part of chest and side and back of chest, showed fractures of 5,6,7,8 ribs on right side and fracture 6,7,8,9 ribs on left side. On opening the plural cavity both right and left cavity showed the presence of blood. Both lungs were congested and dark coloured blood oozing out of it. HEART: Right cavity of heart was full of blood. Left cavity was empty. Sample of blood was collected and sent for chemical examination. INTERNL ORGANS OF ABDOMAN: Showed congestion and dark coloured blood oozing out of it. Penis was Retracted, no discharge of semen was found. No stain of semen and blood was on the under-wear. Scrotum showed injuries as already disclosed above. Testicle showed tunica vaginal damaged and testis showed contusion. There was no collection of blood in tunia vaginalis. The samples of stomach, small intestine, liver Spleen, Kidney, lounges, heart and blood were sent for the chemical examination. On the receipt of the report Ex.PM, the doctor opined that the cause of death of Tulsi Ram was due to strangulation alongwith injuries to scrotum and chest leading to Asphyxia and shock. The chemical analysis report had also shown the presence of the alcohol in the blood 0.06% as an 4 associated factor. It was opined that the injury on the scrotum could be caused by the kick blows and on the chest by fist blows. The police recorded the statements of the witnesses. According to PW Ram Swarup, SDO Electricity, there were also some ligature marks on the neck of the deceased and he had tested the wire of the Bed switch in the presence of the Dy.S.P. Though the wire was live but the body was not getting earth or neutral from any side. Therefore, it was not a case of electrocution. The police also prepared site plan Ex.PW16/A and photographs of the dead body Exts. P7 to P9 were taken and the respondents were arrested on 19.11.1992. Respondent Inder Singh, pursuant to his statement recorded under Section 27 of the Indian Evidence Act, got recovered two empty bottles of liquor from the saw-dust near the saw-mill, which were emitting alcoholic smell. On the conclusion of the investigation, the challan was presented in the court for trial for the offence of murder. The respondents were charge-sheeted. They pleaded not guilty and claimed trial. The respondents were acquitted of the charge aforesaid, on the grounds that the entire case of the prosecution hinges upon the circumstantial evidence, which are not of conclusive nature and tendency, hence did not inspire confidence. In appeal, Shri P.K. Sharma, learned Additional Advocate General, for the State has vehemently argued that the learned trial court has not correctly appreciated the circumstances of motive, last seen and the recoveries made by the respondents pursuant to the statement under Section 27 of the Indian Evidence Act, which has caused miscarriage of justice. We have given our thoughtful consideration to the above contentions of the learned Additional Advocate General and have carefully gone through the record. 5 At the very out-set, we would like to say that the death of Tulsi Ram was homicidal, post-mortem report Ex.PL and the unshattered testimony of Dr. O.P. Ram Dev (PW13) is conclusive on this aspect of the case. Now the question is whether the prosecution evidence could link the respondents with the offence charged? On the consideration of the evidence on record, we find the answer of the above query in negative. As already stated above, there is no direct evidence and the case of the prosecution hinges upon the following circumstances: (i) Motive. (ii) Last seen in the company of the deceased. (iii) Recoveries of empty bottles made under Section 27 of the Indian Evidence Act from the saw-mill. We proceed to examine each and every circumstance relied upon by the prosecution. MOTIVE: It is a settled law that if a case hinges upon circumstantial evidence, motive plays an important role. If proved, it explains what otherwise remained un-explained. It supplies an additional link to the prosecution case, but it is equally settled that the failure to prove the motive is not always fatal. In the instant case, the motive as alleged is that after taking the liquor by the respondents and deceased together, the respondent Kishan Bahadur was demanding an amount of Rs.300/- from Tulsi Ram deceased, which he owed. When the deceased was unable to return the said amount an altercation arose and his murder was committed. To prove this fact, the prosecution examined PW4 Moti Lal and PW5 Bahadur Singh. None of them have supported the prosecution case. Though PW4 Moti Lal has stated that Tulsi Ram used to stay at Rajgarh and at that time, Kishan Bahadur was working as a Carpenter in the saw-mill at 6 Pabiana. Tulsi Ram had told him that he owed Rs.300/- to Kishan Bahadur, yet PW5 Bahadur Singh who took liquor in the company of respondents and deceased has stated that there was no quarrel or exchange of hot words inter-se respondents and deceased with regard to the return of money. In view of this evidence, we find that the prosecution has not been able to prove the motive which could allegedly supply a motive to the respondents to kill Tulsi Ram. LAST SEEN: As per the case of the prosecution, the respondents were seen together consuming liquor at the saw-mill of Bhup Singh of village Pabiana in the company of the deceased. PW4 Moti Lal, a Beldar, in the Electricity Department at Rajgarh stated that on 11.11.1992, around 9 a.m. he came to attend his duty at Rajgarh. PW2 Rajesh Kumar sent him to Pabiana with some store articles, which were handed over by him to Tulsi Ram deceased at Pabiana. Both of them worked at Pabiana till 4.30 P.M. Then he returned to his village Matiana while Tulsi Ram stayed in his room at Pabiana. Respondent Kishan Bahadur at that time was working in the saw-mill of Bhup Singh in the same village. He had brought mutton and he had a program to dine together with the deceased. PW-3 Balwanta Ram has stated that Tulsi Ram and respondent Inder Singh were standing on the roadside near the house of Tulsi Ram. Tulsi Ram enquired from him whether he had any arrangement for meals to which he denied. In the evening around 7.15 P.M. PW5 Bahadur Singh also joined them at the saw-mill where Kishan Bahadur respondent, was having his kitchen. The respondents, Tulsi Ram and Bahadur Singh consumed liquor. Bahadur Singh deposed that at that time there was nothing unpleasant between them. After taking meals all of them had dispersed to their respective residences. 7 The prosecution alleged that after some time the respondents came to the room of the deceased where they committed murder of Tulsi Ram, but there is no such evidence led by the prosecution to substantiate this fact. It stands proved on record that the deceased was alive when he left the company of the respondents. Thus the circumstance of last seen vanishes. Even otherwise, last seen does not by itself necessarily lead to inference that it was the accused-respondents, who had committed the crime. It depends upon the facts of each case. Further, the prosecution could also not establish that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime. Contrary the site plan of the place where deceased was found dead in his room Ex.PW16/A also shows that the rooms of deceased Tulsi Ram and respondent Kishan Bahadur are separate and in the different buildings. It is also evident that there are other residential houses in the vicinity including Balwanta Ram (PW3) on the side of a motorable road. Therefore, there is also a possibility of meeting other persons or approaching the deceased before the commission of crime. In cross- examination, PW 16 Basher Singh, I.O. has stated that he had interrogated 6 to 8 persons with respect to the aforesaid incident, in order to find out the real culprit, w.e.f. 13th to 18th November, 1992, which means that till 19.11.1992, there was no clue of the accused, whereas, during this time the respondents and the aforesaid witnesses were present there. It appears that the respondents were apprehended on the basis of suspicion as having consumed the liquor. Thus, this circumstance ‘last seen’ put-forth also stands not proved. RECOVERIES: The prosecution has relied upon the third circumstance, i.e. the recoveries of two empty bottles of liquor. Even if this circumstance is 8 admitted to have been proved, it does not connect the respondents with the offence charged. PW16 Basher Singh, the Investigation Officer, has stated that on 19.11.1992 during interrogation of Inder Singh, in the presence of PW7 Ram Pal and PW8 Bhup Singh made the disclosure statement Ex.PF under Section 27 of the Indian Evidence Act and got recovered two empty bottles, which were taken into possession vide memo Ex.PG. PW7 Ram Pal did not support the version of alleged recovery. Another witness PW8 Bhup Singh has stated that Kishan Bahadur had made disclosure statement regarding the bottles aforesaid but respondent Inder Singh got it recovered from the saw-mill, which fact goes contrary to the recovery memo and the prosecution version. Thus, the evidence of recovery, as discussed above also does not inspire confidence in the light of glaring contractions. On reappraisal of the evidence on record, we hold that the prosecution has failed to prove the guilt of the respondents beyond a reasonable doubt. We have found that the conclusion drawn by the learned trial court for the acquittal of the respondents, are borne out from the record, which cannot be said to be perverse. Therefore, the impugned judgment of acquittal passed by the learned trial court, calls for no interference. The appeal filed by the State sans merit and is accordingly dismissed. The respondents are discharged of their bail bonds entered upon by them at any time, during the proceedings of this case. (Surjit Singh), Judge (Surinder Singh), Judge. June 6, 2008. (Pds)