Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.155 of 1993. Judgment reserved on: 05.03.2008. Dated of Decision: March 13th, 2008. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Bhupinder Singh ……. Respondent. Coram The Hon’ble Mr. Justice V.K. Ahuja, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes . For the Appellant : Mr. P.K. Sharma, Addl. Advocate General. For the Respondent : Mr. N.S. Chandel, Advocate. Surinder Singh,J. : The respondent was tried and acquitted for the offence under Sections 302 of the Indian Penal Code, allegedly for causing the murder of one Davinder Singh. The State felt aggrieved by the impugned judgment of acquittal and accordingly, the instant appeal has been filed. We have heard the learned counsel for the parties and gone through the evidence on record in meticulous details. Succinctly, the case of the prosecution is that the respondent is employed as a labourer in Military Engineering Service (MES) at Dhariwal. Deceased Davinder Singh was a matriculate and was an unemployed youth, resident of village Mal Samrahana of district Gurdaspur. Said Davinder Singh (deceased) and the respondent - 2 - were known to each other and were in visiting terms in the houses of each other. The deceased was in search of a job and requested the respondent to help him in getting the job. The respondent assured to get him recruited in the Indian Army and demanded Rs.15,000/- for the said purpose, which money was to be paid to the Recruiting Officer. The deceased approached his brothers and told about it. They arranged Rs.12,000/- and paid to the respondent with the assurance to pay the balance amount of Rs.3,000/- later on. The respondent took the deceased with him on 22nd July, 1991 on the pretext for recruiting him in the Army. Both went to Pathankot. It is alleged that on reaching Pathankot, the deceased was administered liquor. Thereafter he was taken in a lonely place at ‘Dhangupir’, there he was killed by the respondent by inflicting injury with a knife. The dead-body was thrown in the shrubs nearby and so the knife. Respondent returned to his village with the bag of the deceased which was containing the matriculation certificate and wearing apparels of the deceased. The respondent is alleged to have informed the brothers of the deceased that he was recruited in the Army and he was posted in Ladakh. Thereafter the respondent wrote letters to the brothers of the deceased impersonating as Davinder Singh. The conduct of the respondent was such that the relatives of the deceased did not suspect him and presumed that the letters were in fact written by the deceased Davinder Singh. The respondent demanded the balance amount of Rs.3,000/- and also a blanket to provide it to the deceased in Ladakh. In the meantime, the marriage of the sister of the deceased was fixed, but till December, 1991, the deceased did not return. Thus, they got suspicious and - 3 - asked the accused about the whereabouts of the deceased. The respondent informed them that the deceased had deserted the Army and in doing so, he had decamped with the service- riffle. He further informed that an Army Superintendent had come from Ladakh for the recovery of the riffle. Therefore, they should arrange the money of Rs.6,572/- as the price of the riffle. He further informed that the deceased had joined the Militants in Punjab. The suspicion of the family members of the deceased got strengthened and they put the pressure on the respondent to tell them the try story. Then he informed that he dropped the deceased at Pathankot in the month of July, 1991. PW Nissan Singh, one of the brothers of the deceased went to Pathankot in the month of January, 1992 alongwith 2-3 persons, but they did not fine any trace of the deceased. There he was informed by someone on 15.1.1992 that an unclaimed dead-body was lying at Dhangupir in the month of July, 1991. He went to police-post Dhangupir which was under Police Station Nurpur. He was informed there by the police that an unclaimed decomposed body was lying in the shrubs on 24th July, 1991, the autopsy of which was performed on 25.7.1991. An FIR No.248/1991 dated 30.7.1991 stood already registered in police station Nurpur. Then he went to Nurpur where he was shown photograph of the unclaimed dead-body, met with a homicidal death, who identified him as his brother Devender Singh. According to them he was taken by the respondent on 22.7.1991 for recruitment. On this the Station House Officer, Police Station Nurpur, suspected that the respondent had caused the death of Davinder Singh aforesaid. He arrested the respondent from his residence and booked him for the murder of Davinder Singh. The specimen writings - 4 - of the respondent were taken before the Judicial Magistrate, which were sent for the comparison of the letters alleged to have been received by the brother of the deceased, to the Government Document Examiner and as per the report, it was found to be in the hands of respondent. The police recorded the statements of the witnesses and after completing the challan presented the case for the trial of the respondent. The respondent was charge-sheeted for the murder of Davinder Singh under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charge, but it failed in securing the conviction as the learned trial Court held that the circumstances put-forth were not established beyond doubt and the prosecution had felt to connect the respondent with the alleged offence and the dead-body could not be identified to be that of Davinder Singh. We have reappraised and legally scanned the evidence on record. Admittedly, there is no direct evidence of the alleged crime against the respondent. The entire case hinges upon the circumstantial evidence. The prosecution banks upon the following circumstances:- (i) Last seen with the accused; (ii) Identification of the unclaimed dead-body by photograph Ex.D1, alleged to have been found in the pocket of wearing apparels of the unclaimed dead-body; (iii) Letters Exts.P13 to P15 alleged to have been written by the respondent to the brothers of deceased; and (iv) Recovery of knife and the bag and wearing apparels of the deceased from the house of the respondent. - 5 - It is a cardinal principle of criminal law that in a case of circumstantial evidence each one of the circumstance has to be established beyond a reasonable doubt and all the circumstances if put altogether must lead only one inference and i.e. the guilt of the accused. At the very out set we would like to say that the prosecution has failed to prove that Davinder Singh for whose murder, the respondent has been charge-sheeted was murdered and the unclaimed dead body was that of Davinder Singh. Admittedly, the police had recovered a dead body of one Sikh gentleman lying in a Nallah at Dhangupir on 24.7.1991. It was unclaimed. The FIR was lodged in Police Station, Nurpur. The police took photographs Exts.P22 to P34 in different portions of the dead body. Only photo Ex.P29 shows the front portion thereof. This photo was sought to be got identified by the police with another photo Ex.D1, which, according to the Investigating Officer was found on the search of the dead-body on 24.7.1991. Even if this fact is admitted, even then it is not sufficient to connect the respondent-accused with the alleged crime. There is also no resemblance of the two photos at all. We have found the story of recovery of photo Ex.D1 from the dead body to be incorrect for many reasons. When the unclaimed dead-body was recovered at Dhangupir, the inquest report Ex.PB was prepared, there is no mention of this photo having been recovered, as alleged. The post-mortem report Ex.PA also does not say anything like the photograph having been found in the clothing of the deceased by the Doctor. There is no other document to show its recovery as alleged. It remains a mystery how this photo came in possession of the police. It appears that an attempt has been made - 6 - to plant the photograph Ex.D1 of Davinder Singh by the police in the above manner. As already stated above the physical features of photograph Ex.P29 does not tally with photograph Ex.D1. None of the brothers and the mother of the deceased have deposed that there was some other resemblance mark of identification on the dead-body. No identification of the clothes found on the dead-body during investigation were conducted by the police to prove it to be that of Davinder Singh. Even the watch Ex.P8, found on the wrist of the dead-body and removed by the Doctor at the time of post- mortem, was not got identified as having belonged to Davinder Singh. Therefore, in our considered opinion the prosecution has not been successful in establishing the identity of the unclaimed corpse to that of Davinder Singh. Further, as per the case of the prosecution, the liquor was administered to the deceased by the respondent and then he was hatched to death. Firstly, there is no evidence to this fact further but on the examination of the viscera of the unclaimed dead-body, the Chemical Examiner did not find alcohol in its contents. Dr. Dev Raj Riyal (PW1) though performed the post-mortem on 24th July, 1991 had found anti- mortem injuries on the dead-body, but he waited for the final opinion of the chemical analysis and it is surprising that he gave his final opinion on 31.3.1992 that the deceased had died due to shock and hemorrhage due to incised wound in the neck that too after the arrest of the respondent on 16.1.1992. This delay is not explained by the prosecution. The alleged recovery of the knife Ex.P1 from the place of incident, after a gap of about six months from the nearby spot where the dead-body was found appears to be illusory. It took three days to the police in recording the disclosure statement of the respondent - 7 - after his arrest pursuant to which the alleged recovery is made. Such a disclosure statement has to be viewed with suspicion, as it can be a tainted one also for the reason that the recovery of the knife is stated to be from the place about 10 to 12 feet away where the dead body was found in the month of July, 1991. It beats the imagination of any common man that when the dead body was found by the police on 24th July, 1991 and the knife which was at a close distance, how could it escape the notice of the police. Thus, no reliance can be placed on such a recovery to pass the judgment of conviction or even to admit at a circumstance weighing against the accused. The next circumstance against the respondent is the letters Exts.P13 to P-15 alleged to have been written by him to the brother of the deceased. The specimen writing Ext.PW17/A to PW17/18 were taken before the Judicial Magistrate Shri K.P. Singh (PW18) when the respondent was in the custody of the police on 30.3.1992. A perusal of the cross-examination of the statement of Shri K.P. Singh shows that the respondent was also produced before him for his specimen writing even earlier to that. According to the Magistrate he had refused to give his specimen writing. But no such record was produced by the police during the trial of the accused. One note- book Ex.P16 was alleged to have been recovered from the house of the respondent which contained the writings of the respondent, it was sent for comparison. But there is nothing on record to show that the writing in Ex.P16 was in the hand of the respondent. Further Dr. B.R. Sharma (PW17) had examined the alleged hand writing of the respondent on the letters with the specimen writings. He only illustrated the points of similarity in the alleged admitted and - 8 - specimen writings. The points of similarities were not counted by him and no record of the similarity was either prepared by him. It is an established principle of law that the opinion of the handwriting expert had to be taken with great caution. It is only an opinion to guide the Court with the reasoning furnished by the Expert and it is not always safe to act upon the opinion evidence unless there is some corroboration. In the instant case, the brothers of the deceased at any point of time did not raise any suspicion that these letters were not that of the deceased. Thus, the aforesaid opinion remained uncorroborated and it is not safe to act upon the opinion of the handwriting expert in the given circumstances. Insofar as the recovery of the bag of the deceased containing wearing apparels and certificates from the trunk of the respondent is concerned, is also surrounded by suspicion. According to Joga Singh (PW4), the police came to village Mal Samrahana on 15.1.1992. He alongwith some other persons, went to the house of the respondent, who was found sitting in the courtyard of his house, where he was arrested by the police. His house was found locked. On interrogation, he told the police about the aforesaid articles and he took out the key from his pockets, opened the door and got recovered these articles vide memo Ex.PN, whereas, Sant Ram (PW13), Investigating Officer says that he went to the house of respondent on 16.1.1992 and not on 15.1.1992. Avtar Singh, Nissan Singh and Teja Singh were also with him. He did not say anything about the arrest of the respondent, but according to him, the respondent was asked regarding the clothes and blanket of the deceased and also the reasons as to how he had killed the deceased and recorded the statement Ex.PL. This alleged - 9 - disclosure statement with respect to the clothes pursuant to which he got recovered the articles aforesaid vide memo Ex.PN, is not at all admissible in evidence. If the accused was arrested, as stated by the witnesses aforesaid even on 16.1.1992, the Arresting Officer was required to prepare a memo of his personnel search. With respect to the articles found in possession of the accused, no such document was produced in evidence showing that the accused was having the key of the house with him which was found locked. Thus, the recovery of the aforesaid articles is also not free from doubt. The theory of taking the deceased by the respondent on 22.7.1991 does not prove the case of the prosecution mainly for the reason that the prosecution has failed to prove that the unclaimed dead-body of the deceased found at Dhangupir on 24.7.1991 was that of Davinder Singh and the attendance Register of the respondent shows overwriting marked for his presence on the said date. Therefore, the circumstances regarding the recoveries of knife and the wearing apparels are also shrouded by the suspicious circumstances and uncorroborated testimony of the document expert in the circumstances, discussed above, could not prove the case of the prosecution beyond a reasonable doubt. For the reasons aforesaid, on the reappraisal of the evidence in our considered opinion, the prosecution could not establish the chain of circumstances pointing out towards the guilt of the respondent conclusively and with certainty. We find that the findings of acquittal recorded by the learned trial court is borne out from the evidence on record and we see no reasons to interfere with it. Accordingly, the appeal is dismissed. - 10 - The respondent is discharged of the bail bond entered upon by him at any stage during the proceeding of this case. Send down the records. (V.K. Ahuja) Judge. March 13th, 2008. (Surinder Singh) (Pds) Judge.