IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 679 of 2000. Date of decision: 13.12.2010. State of H.P. ….. Appellant. Vs. Ram Kumar Sharma & Ors. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Rajinder Dogra, Addl.A. G. For the respondents : Mr. A. S. Shah and Mr. Sandeep Chauhan, Advocates vice Mr. Karan Singh Kanwar, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 26.10.1998, accused were put to trial. In terms of judgment dated 13.7.2000 passed by learned Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No. 31-ST/7 of 1999 titled as State of H.P. vs. Ram Kumar Sharma & Ors., accused stand acquitted of the charged offence. 2. It is the case of the prosecution that on 31.10.1998, telephonic message was received in the Police Station, Nahan that a dead body was found near the culvert of the road towards Jamta. F.I.R. No.224/98 (Ext.PQ) dated 2.11.1998 was registered at Whether the reporters of the local papers may be allowed to see the Judgment? 2 Police Station, Nahan under Sections 302, 201 IPC. SI Lalman Sharma (PW-16) proceeded to the spot who prepared inquest reports (Ext.PP, Ext.PP/1 & Ext.PP/2). Dead body was brought to the District Hospital at Nahan which was identified by accused Sanjeev Verma to be that of his father Sh. Kesho Ram. Post mortem was conducted by Dr. Gurdarshan Gupta (PW- 14), who as per report (Ext.PN) opined that deceased died of asphyxia caused by strangulation. Investigation revealed that in the year 1973 Kesho Ram was married to Smt. Kanta Devi at his village Dera in Tehsil Naraingarh. Kesho Ram was employed in the Irrigation Department at Kurukshetra and, as such, used to reside there. He would, however, frequently visit his native village. Accused No.1 Ram Kumar Sharma developed family relations with Kesho Ram. Sh. Mohan Lal (PW-1), brother of the deceased revealed to the police that Kesho Ram used to suspect his wife Kanta Devi of having illicit relationship with accused Ram Kumar, as a result of which Kesho Ram took to drinking liquor. In the month of January/February, 1998, Kesho Ram and accused Ram Kumar Sharma planned to set-up a plastic factory at Ambala. For the said business Kesho Ram advanced a sum of `.90,000/- to accused Ram Kumar Sharma. Out of the said investment accused Ram Kumar Sharma purchased a car. This strained the relations between the two. On 26.10.1998, 3 Ram Kumar Sharma (accused No.1), Sanjeev Verma (accused No.2), Vikram Verma(accused No.3)and deceased Kesho Ram went to Renukaji. On their way they stopped at Jamta and took tea in the shop of Sh. Kulwant Singh (PW-2). There they requested Sh. Kulwant Singh for empty glasses for taking liquor. This was refused. Thereafter all of them proceeded towards Renukaji. There they stayed at the Kisan Bhawan, Dadahu. Accused Ram Kumar Sharma entered his name in the register maintained by Kisan Bhawan. In the room of Kisan Bhawan all took liquor. There accused strangulated the deceased with a Parna (Ext.P2) and threw his dead body in the jungle near Jamta. During investigation accused Sanjeev Verma made a disclosure statement (Ext.PE) dated 13.11.1998 and got recovered Parna (Ext.P2) vide memo Ext.PF. Accused Vikram Verma made a disclosure statement (Ext.PG) dated 13.11.1998 and got recovered wrist watch(Ext.P3)of the deceased vide memo dated 13.11.1998 (Ext.PH). Accused Ram Kumar Sharma made a disclosure statement (Ext.PK) dated 14.11.1998 and got recovered Car bearing regn. No.DDD-7403 vide memo dated 14.11.1998 (Ext.PL). Police took into possession record pertaining to the loan and banking transactions of the deceased and accused Ram Kumar Sharma. With the completion of investigation challan was presented in the Court for trial. 4 3. Accused were charged for having committed offences punishable under Sections 302, 201 both read with Section 34 IPC, to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 16 witnesses and statements of the accused under Section 313 Cr.P.C were also recorded. Accused Ram Kumar Sharma took the defence of false implication and accused Sanjeev Verma and Vikram Verma took the following identical defence: “I am innocent. I have been falsely implicated in this case by my uncle Mohan Lal, who is having land dispute with us. However, my father Kesho Ram was left the house from Kurukshetra with Satpal (a son of sister of my father) to village Dera, Tehsil Naraingarh on 26.10.1998 in the afternoon. I had a telephonic talk with my uncle Mohan Lal at Dera about my father on 29.10.98, who stated that he was here and will be coming back soon.” 5. Court below acquitted the accused of the charged offence, hence the present appeal. 6. There is no direct evidence to the incident. It is a matter of record, as stands proved by the prosecution, that deceased Kesho Ram was last seen on 26.10.1998 and his dead body was discovered near Jamta on 30.10.1998. Significantly Accused-2 & Accused-3 are sons of deceased Kesho Ram. It is also a matter of 5 record that there is no eye witness to the occurrence of the incident and prosecution has relied upon circumstantial evidence to prove the guilt of the accused. 7. Circumstances, as urged by Mr. R. K. Sharma, learned Senior Additional Advocate General, have been culled out by the learned trial Court in its judgment which reads as under:- “(a) All the three accused along with deceased came towards Renuka Ji in Maruti Car No. DDD-7403 on 26-10-1998 and stopped at Himalaya Coffee House at Jamta at 3 P.M. and requested for the glasses for taking liquor. (b) The accused along with the deceased stayed at Kisan Bhawan, Dadahu on 26-10-98 from 4.45 PM to 6.30 P.M. and serve liquor to the deceased. Ram Kumar made the entry in this respect in the register at Kisan Bhawan Ext.P1. (c) Ram Kumar accused while in custody demarcated the spot, i.e. culvert at Jamta- Do-Sarka road on 11-11-1998, where the dead body of Kesho Ram was found on 30-10-1998. (d) Accused Vikram Verma got the wrist watch of the deceased (Ext.P3) recovered on disclosure statement. (e) Sanjeev Kumar got Parna (Ext.P2) recovered on his disclosure statement which was allegedly used for strangulating the deceased. (f) Accused Ram Kumar got the Maruti Car No. DDD-7403 recovered parked in front of his 6 house at Shahbad and produced the R.C. and key of the vehicle. (g) Lalita Devi, the daughter of the deceased produced the documents regarding the loan of Rs.92,000/- by the deceased from the department. (h) Motive.” 8. The law on circumstantial evidence is well settled. To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172)]. 9. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, crime 7 was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. [Trimukh Maroti Kiran vs. State of Maharashtra, (2006) 10 SCC 681.] 10. Keeping in view the principles of law, we shall first deal with circumstance (g). Through the statement of Satpal (PW-11), it is apparent that Kesho Ram had taken a sum of `.92,000/- as house building loan from his department. The amount was disbursed to him in three installments, i.e:- `.36,800/- on 22.9.1997, `.27,600/- on 15.12.1997 & `.27,600/- on 4.2.1998. There is no dispute that this amount stood received by Kesho Ram. 11. From the saving bank account of accused Ram Kumar Sharma (Ext.P8), as proved through the testimony of Sh. O. P. Azad (PW-13), Manager, Central Bank of India, prosecution has tried to prove that the amount withdrawn by Kesho Ram was in fact deposited by accused Ram Kumar Sharma in his account. We are afraid record does not establish this fact. Certain sums were deposited into the account of accused Ram Kumar Sharma. They are; `.27,000/- on 13.11.1997, `.20,000/- on 6.1.1998, `.26,000/- on 9.5.1998 and `.39,600/- on 8.9.1998. Now the total sum of this amount does not tally with the amount withdrawn by Kesho Ram. That apart, the relevant dates of withdrawal and deposit 8 also do not tally. There is no direct evidence, to even remotely suggest that the amount withdrawn by Kesho Ram was either handed over by him to accused Ram Kumar Sharma or that the same was deposited by Kesho Ram directly into the account of the accused. That apart, SI Lalman Sharma (PW-16) admits that during investigation he found that, in fact a sum of `.20,000/- was paid by deceased Kesho Ram to his sister-in-law Pushpa Devi which fact also stands corroborated by Mohan Lal (PW-1). Further there is no circumstance to prove that any Car was purchased by accused Ram Kumar Sharma out of the funds allegedly withdrawn or handed over by Kesho Ram to accused Ram Kumar Sharma. Thus this circumstance, not having been proved, negates the prosecution story. The very genesis leading to the crime is rendered to be false. It completely knocks down the prosecution case. 12. Circumstance (a) cannot be said to have been proved by the prosecution. Kulwant Singh (PW-2) has not supported the prosecution to this effect. His examination does not prove the said circumstance. There is no other witness to prove this fact. Thus it cannot be said that while sitting in his shop accused had asked for empty glasses for consuming liquor. 13. Circumstance (b) also cannot be said to have been proved by the prosecution for the reason that Sh. Ram Kumar (PW-3), Manager of the Kisan Bhawan could 9 not identify the accused to be the persons who had have visited Kisan Bhawan on 26.10.1998. Mere production of register (Ext.P1) showing that one Ram Kumar had made an entry in the register would not automatically prove the prosecution case. In fact authenticity of the register itself is in doubt. It is not maintained in a seriatim order. Trial Court has rightly found that in the register blank and loose pages are there and the possibility of the same being manipulated cannot be ruled out. Further prosecution version that accused along with deceased had consumed liquor in the Kisan Bhawan stands falsified by the viscera report (Ext.PY) which does not find traces of liquor in the body of deceased Kesho Ram. Thus whole theory of the prosecution case that accused murdered the deceased after taking alcohol stands falsified. 14. With regard to circumstance (h), except for the bald statement of Mohan Lal (PW-1), there is nothing on record to show that accused Ram Kumar Sharma had developed illicit relationship with Kanta Devi wife of deceased Kesho Ram. Having gone through the statement of PW-1, we are of the view that he has not come out with complete truth. Also on this point he is not stating the truth. He admits not to have any personal knowledge about the illicit relationship between the accused and Kanta Devi. He presumed it to be so for the reason that Kesho Ram had himself disclosed it to 10 him. This is hearsay. Importantly this version of his does not find mention in his earlier statement recorded by the police (Ext.DA) with which he was confronted with. That apart, we do not find the statement of this witness to be trustworthy. He appears to have deposed falsely. It is unbelievable that sons of the deceased would conspire with the paramour of their mother to kill their father. Conspiracy, if at all, would have been the other way. Father and sons would have killed the paramour or the mother. It is not the case of the prosecution that sons were not enjoying good relationship with their father or for that matter mother had strained relationship with her husband. Also why would a friend make investments in the business of the paramour of his wife. It defies logic. There is also no contemporaneous material on record to establish the factum of illicit relationship. There are no evidence on record establishing this fact. 15. With regard to circumstances (c), (d) & (e), prosecution has relied upon the disclosure statements made by the accused persons. Now if police had already recovered the dead body, then where was the question of recording the statements of the accused with regard to its discovery. Further place of recovery of articles in question itself is in doubt. According to the disclosure statement (Ext.PG), wrist watch was 11 thrown at Dosarka Nahan Road but on record police recovered it from Dosarka Jamta Road. The contradiction is glaring. It appears that witnesses to recovery memos, Balinder Singh (PW-5) and Satya Ram (PW-9), have been introduced lateron and documents prepared only to create evidence. Even with regard to recovery of parna, prosecution case is unbelievable. Parna recovered was new. Importantly witnesses to the statements of the recovery memos do not fully establish the prosecution case, as they themselves admit that papers were not drawn in their presence. 16. Undisputedly the vehicle in question, as per the registration certificate, did not belong to the accused. Its recovery by itself would not be a circumstance which can be used against the accused. Court below has correctly and completely appreciated the evidence on record. 17. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present 12 appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge December 13, 2010 (rana)