1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 137 of 1999. Reserved on 23.09.2010. Date of decision: 17.12.2010. State of Himachal Pradesh .…Appellant. Versus Baru son of Amin Lal …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon'ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 No. For the appellant/State: Mr. Rajesh Mandhotra, Dy. AG. For the respondent: Mr. Ajay Sharma, Advocate. Deepak Gupta, J. This appeal is directed against the judgment dated 18.12.1998 whereby the learned Additional Sessions Judge-I, Kangra at Dharamshala has acquitted the accused of having committed an offence punishable under Section 392 readwith Section 302 of the Indian Penal Code. 2. The prosecution story, briefly stated, is that PW-4 Kirpal Singh had constructed a Shiv Temple in village Kuthwan, District Kangra adjacent to the Kangra-Pathankot Road. Beside this Temple, a small hut (Kuttia) had also been constructed. 1 Whether the reporters of local papers may be allowed to see the Judgment? 2 Somewhere in the year 1985-86 one Baba Mangalgir came there as a devotee. He started residing in the Kuttia. There was a small spring near this Temple and Kuttia. On 29.5.1997 at about 7:30 a.m. Narinder Kumar took his bath in the spring and performed 'Puja' in the Shiv Temple. He then went inside the Kuttia and found Baba Mangalgir lying on a wooden plank covered with a blanket. When he removed the blanket, he found the face of Baba Mangalgir covered with blood. He immediately came out of the Kuttia and shouted for help. The villagers gathered there and he narrated the said incident to Kirpal Singh PW-4. Thereafter PW-5 Kailash Chand telephonically informed the police about the incident. The police came to the spot. Statement Ext. PW-3/A of Narinder Kumar was recorded under Section 154 of the Code of Criminal Procedure by PW-16 ASI Ramesh Kumar. This statement was sent in the form of 'Ruka' to the Police Station, Kangra and on the basis of this statement, FIR Ext. PW-13/A was recorded. Photographs of the spot and dead body were taken. Inquest papers were prepared and it was prima facie found that the deceased had suffered injuries over his forehead and face. 3. The dead body was sent for post-mortem to the hospital at Dharamshala and post mortem was conducted by Dr. Amarjit Singh PW-12 on 29.5.1997. The post mortem report is Ext. PW-12/A and as per Dr. Amarjit Singh the deceased died due to multiple fractures on the head and face. 3 4. The Investigating Officer took into possession from and near the spot a matress, blood stained stone, blood stained earth, shirt, trouser and parna etc. The statements of the witnesses were also recorded. 5. According to the prosecution, in the evening of 28th May one person was sitting with the deceased in the Kuttia and had been seen by PW-5 & PW-6. On 1.6.1997 when Kirpal Singh PW-4 along with PW-16 ASI Ramesh Kumar was present at bus stand, Jawalamukhi a bus stopped there. Accused Baru Ram alighted from the bus. He was dressed like a Sadhu. He was carrying a Karmandal, Trishul and Jholu. He was apprehended on the basis of suspicion. The accused allegedly stated that he was Baba Mangalgir. The Karmandal, Jholu, Trishul, Watch and four cassettes were taken into possession by the the investigating officer in the presence of Dev Raj and Uttam Chand. PW-4 Kirpal Singh identified these articles as belonging to the deceased. Thereafter identification parade of the accused was got conducted in the presence of Chief Judicial Magistrate, Kangra and during this investigation, the accused was identified to be the person who was sitting with the deceased on the previous evening of 28.5.1997. Further investigation was done and on completion of investigation, challan was filed against the accused. The accused pleaded not guilty and claimed trial. After trial the accused was acquitted. Hence this appeal by the State. 6. Admittedly this is a case where nobody has witnessed 4 the murder and the case is sought to be proved on the basis of certain circumstances. It is well settled law that in a case of circumstantial evidence, the prosecution has to prove its case by not only proving the circumstances, but should also link them in such a fashion that they only lead to one irresistible conclusion, i.e. the guilt of the accused. In case any link is missing or there is any likelihood of the crime having been committed by some other person, then the accused has to be given the benefit of doubt. The prosecution relies upon following circumstances in support of its case. i) 'Last seen theory' that the accused and deceased were last seen on 28.5.1997 at about 5/6 P.M. and on the morning the deceased was found dead, whereas the accused was not found there. ii) That on 1.6.1997 at about 6.6.30 P.M. the accused was apprehended at bus stand Jawalamukhi in possession of Trishul Ex. P21, Karmandal Ex. P22, watch Ex. P23, and cassettes Ex. P24 allegedly belonging to deceased Baba Mangal Gir, which were found missing from the Kuttia of the deceased. iii) The clothes of accused i.e. shirt Ex. P-29, Panjama Ex. P30, Parna Ex. P31 allegedly belonging to the accused were found lying near the dead body of the deceased in the Kuttia, and iv) the accused was identified as the same person during the test identification parade allegedly conducted on 5-6-1997 in district Jail, Dharamshala who was last seen with the deceased on 28-5-1997 at about 7/8 P.M. 7. To prove the first circumstance relied upon by the prosecution, the prosecution examined PW-5 Kailash Chand and PW-6 Ravinder Kumar. According to PW-5 Kailash Chand on 28.5.1997 he went to the Kuttia of the deceased at about 6:00 5 p.m. and found a stranger sitting with him. On enquiry the Baba disclosed that the stranger was a traveller who would stay with him for the night. The stranger was wearing a shirt and pajama and was also carrying a parna. The stranger, according to this witness, was the accused. He also states that next morning he came to know that the Baba had been murdered and he had informed the police about the incident. A stone was also found lying there. The clothes that the stranger was wearing were found lying in the Kuttia and the chola of the Baba was found missing. The clothes of the stranger were taken into possession by the police. 8. This witness also states that on 5.6.1997 he was called by the police to District Jail, Dharamshala, in the presence of Magistrate. There were 10 to 12 peoples standing in the jail and he was asked to identify the person whom he had seen in the Kuttia of the Baba and he had then identified the accused. This witness admits that when he had intimated the police on telephone he had not informed the police that on the previous night he had seen the stranger with the deceased. In fact, according to him, he did not make a mention of this fact to anybody including PW-3 Narinder Kumar and PW-4 Kirpal Singh. This belies the statement of this witness. If he had seen the stranger sitting the previous night with the Baba and he also found the clothes of the stranger at the spot, the only inference he would have drawn was that the Baba had been murdered by 6 such stranger and would immediately informed the police, PW-3 Narinder Kumar, PW-4 Kirpal Singh and other villagers about this fact. There is no explanation as to why PW-5 Kailash Chand kept silent in this regard. 9. PW-6 Ravinder Kumar also deposed that on 28.5.1997 when he went to the Kutia of the Baba, he found a stranger sitting there. The stranger was the accused who was wearing a shirt and pajama and had a parna. Next day he found that the Baba had been murdered. This witness has not been associated in the identification parade and thereafter for the first time he had identified the accused in the Court. He admits that accused was shown to him in the Temple and thereafter got identified by him. Therefore, the statement of this witness is virtually meaningless. It would be pertinent to mention that the Temple is situated on the National Highway and lot of people and vehicles cross the area at night and therefore it cannot be said with certainty that the stranger who was seen at night was the last person with the deceased. 10. According to the statement of PW-5 Kailash Chand and PW-6 Ravinder Kumar they found a stranger sitting in the Kutia on the evening of 28.5.1997. Next morning on hearing of the murder of the Baba, they both reached the spot. Though PW-5 Kailash Chand lodged the complaint with the police, he did not inform anybody about the fact that he had seen a stranger with the Baba on the previous night. PW-6 Ravinder Kumar had 7 also not disclosed this fact to any person at that time. Even the police did not care to record the statement of PW-5 Kailash Chand and PW-6 Ravinder Kumar. At the time when the inquest report PW-4/B was prepared on the spot in the presence of PW-4, PW-5, PW-6 and other persons, it was clear that the Baba had been murdered with a stone. 11. PW-5 Kailash Chand and PW-6 Ravinder Kumar were present when these proceedings were recorded and if they had actually seen a stranger sitting with the Baba, natural human conduct would have been to inform the police about this fact, the next morning. It is also important to note that PW-5 Kailash Chand is the real brother of PW-4 Kirpal Singh and if anything like this had happened, he would have definitely informed his brother about this fact. Therefore, the first circumstance is not proved at all. 12. I shall now take up the second circumstance of the test identification parade which is linked with the first circumstance. To prove this, the prosecution has relied upon the statement of PW-5 Kailash Chand and PW-7 Jagmohan Singh Mahantan, the then Chief Judicial Magistrate, Kangra who got conducted the parade. The statement of PW-7 Jagmohan Singh Mahantan shows that an application Ext. PW-7/A was filed with him for conducting the test identification parade. He then proceeded to the District Jail, Dharamshala and conducted the parade. He got the accused Baru mixed with eight other persons 8 of the same age group and having same type of beard. All of them were made to stand in a single line. The police was not present. PW-5 Kailash Chand was called inside the jail and was asked to identify accused Baru with his finger and the accused had been identified by the witness. This witness when asked how the arrangements were made for getting the identification parade conducted in the jail showed his ignorance about this fact. In his report also there is no mention about the kind of dress the people were wearing at that time. According to the prosecution, the accused was arrested on 1.6.1997 at about 6.6:30 p.m. at bus stand Jawalamukhi in the presence of PW-4 Kirpal Singh who is the real brother of PW-5 Kailash Chand. There is no explanation why the test identification parade was not conducted immediately thereafter on the same day or on the next day. There is delay of 4 days in conducting the test identification parade and therefore the probability of the accused having been shown to the witness by the police at an earlier stage cannot be ruled out. 13. The third circumstance relied upon by the prosecution is that when the accused was apprehended at Jawalamukhi he was in possession of the Trishul Ext. P-21, Watch Ext. P-23 and Cassettes Ext. P-24 which belonged to the deceased Baba Mangalgir. No doubt, PW-4 Kirpal Singh and PW-5 Kailash Chand have deposed that these articles belonged to the deceased, but there is no explanation why this fact was not 9 recorded when inquest was carried out on the spot in the presence of PW-4 Kirpal Singh and PW-5 Kailash Chand. There is no mention in the inquest report that such articles were found missing. In fact, till 1.6.1997 no statement of any person had been recorded that the aforesaid articles belonged to the deceased were missing from the Kuttia. This was a case of murder and if the articles of the Baba especially his Karmandal, Trishul etc. were missing the witnesses would have definitely told the police about this aspect. 14. Another surprising aspect of the matter is that there is no explanation why PW-4 Kirpal Singh and PW-16 ASI Ramesh Kumar had gone to Jawalamukhi. If they had prior information that the accused was going to come there then this fact itself shows that they knew the identity of the accused, but admittedly the prosecution case is that the accused was not known to anybody and it was PW-5 Kailash Chand and PW-6 Ravinder Kumar who seen him on the evening before the murder. On what basis was the accused arrested when he got down from the bus? The articles that is Karmandal and Trishul are not articles which have any distinctive mark on them. PW-9 Dev Raj stated that Baru was arrested. He did not see anything in the possession of Baru and it was the police who told him that the accused was carrying one Karmandal and Trishul. PW-10 Uttam Chand states that on 1.6.1997 a large number of persons had gathered at bus stand Jawalamukhi when the police arrested the accused. The 10 witness was asked to sign some blank papers but nothing was recovered from the accused in his presence. Therefore the entire recovery of Karmandal, Watch and Trishul has not been proved. 15. As far as the last circumstance regarding the recovery of the clothes of the accused from the Kuttia of the Baba is concerned, the same has also not been proved. According to PW-5 Kailash Chand these articles were found lying on the spot and he had seen the accused wearing them on the evening prior to the murder. PW-4 Kirpal Singh also states that these clothes were lying on the spot. Surprisingly there is no mention of these clothes in the inquest report, though in the inquest report there is mention of a stone lying near the spot. As already pointed out the inquest report was prepared in the presence of PW-5 Kailash Chand and PW-6 Ravinder Kumar and if they had actually seen the accused wearing the clothes and sitting with the Baba on the evening prior to the murder they would have definitely informed the police about this fact. In view of the above discussion, we are of the considered view that the prosecution has failed to prove any of the aforesaid circumstances and have failed to bring home guilt of the accused. The appeal is accordingly dismissed. Bail bonds are ordered to be discharged. (Deepak Gupta),Judge. (Sanjay Karol),Judge. December 17, 2010. 11 (Krn Guleria)