IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 221 of 1997 Decided on : 17.08.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Shanti Swarup and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra Addl. Advocate General. For respondent No.1 : Mr. Praneet Gupta, Advocate. For respondent No.2 : Mr. Bhupender Gupta, Sr. Advocate with Ms Charu Gupta, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 08.01.1997, passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P, in Session Trial No. 31-N/7 of 1996, acquitting the accused-respondents for the offences under Sections 302/34 IPC, in reference to FIR No. 84/96, dated 2.3.1996 of Police Station, Paonta Sahib. 2. On 2.3.1996, dead bodies of Surinder Singh son of Telu Ram and Gyaru Ram son of Ghasi Ram, were found in injured condition and blood stained stones were recovered lying near 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the dead bodies. The above said accused were stated to have killed both the deceased. After investigation both the accused were charged for offences under Sections 302/34 IPC. The case was committed to the Court of Sessions for trial. 3. In order to prove its case the prosecution has examined as many as 21 witnesses. Whereas the accused-respondents have denied the prosecution case. During investigation it was alleged that the accused-respondents had committed murder of both the deceased during the night between 28th and 29th February, 1996. The prosecution proceeded on the presumption that there was no direct evidence except the circumstantial evidence, more so the statement made by accused-respondent Jakir Hussain under Section 164 Cr.P.C before the learned Addl. Chief Judicial Magistrate, Paonta Sahib, stating that they had murdered both the deceased. Dr. Vijay Pabby, PW-10 along with other doctors had conducted the post mortem of the dead bodies of deceased Surinder Singh and Gyaru Ram on 3.3.1996 and issued postmortem reports Exts. PJ and PK pointing out that both the deceased had died because of the injuries on their person. PW-1 Raghubir Singh Pradhan and PW-2 Rameshwar Sharma, Up- Pradhan, Gram Panchayat, Sataun, have noticed the dead bodies of both the deceased lying near Bhoot Khud in Giri Nadi on 2.3.1996 and on their information, inquest reports Ex.PA and Ex.PB were prepared by the police. As per the testimony of PW-2 Rameshwar Sharma, Rakesh Kumar PW-3 had seen Surinder 3 Singh coming in the last bus from Paonta Sahib to Sataun on 28.2.1996, but, in the statement Ex.PG before the police he had stated that Rakesh Kumar had seen him in the bus on 29.2.1996. PW-2 had further stated that Balbir Singh told him that both the accused stayed in the cattle shed of Shyam Singh near village Kamrau, but this version was not found mentioned in his statement Ex.PG. In view of testimony of PW-1 Raghubir Singh, the place where the dead bodies of the deceased were lying was visible from the passage Sataun to Renuka Ji, on which so many persons passes. 4. PW-3 Rakesh Kumar, had stated that though he had seen Surinder Singh in the last bus from Paonta Sahib to Sataun, but, he did not know the exact date. As per the testimony of PW-2 Rameshwar Sharma, on 8.3.1996, accused Jakir Hussain had demarcated the cattle shed of Shyam Sisngh PW-18, near village Kamrau, in the presence of Balbir Singh PW-9. Both Shyam Singh PW-18 and Balbir Singh PW-9, have supported this fact. However, Shyam Singh PW-18 had further stated that he came in the last bus from Paonta Sahib to Sataun on 29.2.1996 and saw accused Surinder Singh sitting in the bus. Since the road was blocked near Katcha Dhank, he and Surinder Singh alighted there and thereafter he went to the house of his sister at Sataun. PW-18 has further stated that on 1.3.1990 when he went to his cattle shed near village Kamrau, he found the sleepers of the cattle shed loose and the quilt was lying on the bed. Therefore, he 4 observed that the bed in the cattle shed was being used by some person in the previous night, i.e during the night of 29.2.1996 and 1.3.1996. PW-4 Sant Ram, conductor of Bus No. HP-17-4135, stated that on 28.2.1996, when he was taking the last trip of the bus at 7.00 or 7.30 PM to Sataun, he observed Surinder Singh sitting on the bonnet of the bus and he wanted to go to Sataun, but, on demanding the fare, he did not pay, therefore, he dropped him at Gondpur. PW-4 has further stated that he along with the driver of the bus went to the hotel of Deep Chand at 8.30 PM, where he observed that Surinder Singh along with the accused was taking meals and on seeing PW-4 Surinder Singh started abusing him. PW-5 Deep Chand, owner of the hotel had supported the version of PW-4. PW-6 Baru Ram had deposed that both the accused were standing with Surinder Singh outside the bus of Sant Ram PW-4. PW-7 Ramesh Kumar Head Constable, had stated that he took Surinder Singh under the influence of liquor to some distance from the hotel of Deep Chand at 10.30 PM on 28.2.1996, but set him free at the instance of both the accused that they would take care of him. PW-11 Meet Singh is not a material witness. PW-13 Guman Singh, driver of truck No. HP-17-4154, observed both the accused standing on the road side on 28.2.1996. PW-15 Khatri Ram was the driver of truck No. HP-17-3338, who had allegedly given lift to Jakir Hussain accused in his truck on 29.2.1996 at about 5.00/5.30 AM from village Tillaurdhar. PW-16 Madan Singh had stated that Jakir 5 Hussain accused had left his jacket in his truck, which was taken by his conductor Dhanvir Singh and after washing the same he produced it to the police on 9.3.1996. PW-14 Man Singh is the photographer. PW-17 Kanshi Ram has prepared the tatima of the place of occurrence. PW-19 ASI Lachhman Dass and PW-21 Inspector Om Parkash are the Investigating Officers of the case. As per their testimonies no blood stains were found on the clothes of Shanti Sarup allegedly produced by his wife Kala Devi. 5. On analysis of the prosecution evidence and material on record, we notice that Surinder Singh while boarding the bus No. HP-17-4135 on 28.2.1996, had not paid the fare of the bus, therefore conductor Sant Ram dropped him at village Gondpur and by such conduct Surinder Singh was annoyed with Sant Ram and had abused him in the hotel of Deep Chand at Sataun at 8.30 PM on 28.2.1996. However, in view of testimony of PW-7 Ramesh Kumar, Head Constable, he had taken Surinder Singh from the hotel in a drunken state, however, thereafter Surinder Singh was found sitting in the said bus at about 9.30 PM or 10.00 PM in bus stand, Sataun and then Sant Ram and driver of the bus asked Surinder Singh to get down from the bus and accordingly Surinder Singh got down from the bus. According to the prosecution, both the accused stayed in the cattle shed of PW-18 Shaym Singh in the night between 28th and 29th February, 1996. But PW-18 Shyam Singh had clearly stated that when he visited the cattle shed on 1.3.1996, he suspected that somebody 6 had used that cattle shed on the previous night, i.e between 29.2.1996 and 1.3.1996. As such, at the most both the accused were last seen with deceased Surinder Singh at 10.00 PM on 28.2.1996 and thereafter were found at a distance of ½ KM at 12.30 mid-night and then with accused Jakir Hussain at a distance of 12 Kms on the morning of 29.2.1996 at 5.00 or 5.30 AM at Tillaurdher. 6. On analysis of the prosecution evidence and material on record, the learned Sessions Judge has arrived at finding that possibility cannot be ruled out if the occurrence had taken place after the evening of 29.2.1996. As such last seen theory of the accused with the deceased Surinder Singh on 28.2.1996, is of no consequence. The learned Sessions Judge had also observed that there is no evidence if the accused had any ill will or enmity with Surinder Singh or Gyaru Ram. Rather both the accused had been the friends and well wishers of Surinder Singh deceased. Even in the prosecution evidence it had come out that both the accused saved Surinder Singh from untoward incidents not only from Sant Ram PW-4, Conductor of the bus, at the hotel of Deep Chand and at the bus stand Sataun, but also got him freed from Head Constable Ramesh Chand PW-7. Both the accused had also time and again advised Surinder Singh not to abuse anybody or quarrel un-necessarily. 7. On analysis of the prosecution evidence and material on record the learned Sessions Judge had rightly arrived at finding that the prosecution had failed to prove its case beyond 7 reasonable doubt and could not bring home guilt to the accused and link has not been made. The prosecution witnesses are not inspiring confidence to link the guilt to the accused. In our considered view also the prosecution has failed to prove that the accused-respondents have killed both the deceased. Consequently, the appeal is dismissed being devoid of any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 17, 2010. (lsp)