IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.637 of 1996. Date of decision: 22.4.2010 State of H.P ..Appellant Versus Bhag Singh & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Rajiv Sharma, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General. For the respondents: Mr.K.D.Batish, Advocate for the respondents. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 27.6.1996 delivered by the learned Sessions Judge, Hamirpur in Sessions Trial No.10 of 1995 whereby he acquitted the accused of having committed offences punishable under Section 302 read with Section 34 of the Indian Penal Code. 2 The prosecution case, in brief, is that on 9.9.1994 deceased Sarwan Kumar and accused Sukhdev Singh consumed liquor in the house of accused Bhag Singh. A quarrel took place between these two persons. The third accused Surjit Kumar also joined the quarrel. Sukhdev Singh and Surjit Kumar beat the deceased. It has come in evidence that a video film relating to the wedding of one Jaswant was being shown in the house of Duni Chand, neighbour of Bhag Singh. A number of villagers had collected in the house of Duni Chand to see this video film. Bhag Singh left his house and went to the house of Duni Chand and proclaimed that Sarwan Kumar and Sukhdev Singh are fighting and somebody should take them away. Some persons from the house of Duni Chand went to the house of Bhag Singh but by that time, deceased Sarwan Kumar had left the house of Bhag Singh and Sukhdev Singh went to sleep in the house of Bhag Singh. It has come in evidence that the village of deceased Sarwan Kumar is across the Nalla from the house of Bhag Singh. It is not denied that calls from the 3 house of Bhag Singh accused can be heard in the village of the deceased. The prosecution case is that Bhag Singh shouted towards the village of deceased Sarwan Kumar and demanded that Sarwan Kumar and Sukhdev Singh be removed from his house otherwise he would report the matter to the police and hand over these two people to the police. Thereafter, two brothers of deceased Sarwan Kumar namely Dhanu Ram and Bhag Singh came to the house of Bhag Singh, accused but by the time they reached there, Sarwan Kumar was no longer there. After searching for him for sometime, they returned to their village. In the morning, they again searched for Sarwan Kumar but his whereabouts could not be traced out. During the day time, the dead body of Sarwan Kumar was found lying on the rear side of the house of one Sh.Munshi Ram. Thereafter, the matter was reported to the police and the police officials arrived at the spot. Inquest report was prepared and other investigation was completed. The dead body of Sarwan Kumar was sent for post mortem examination and a case was registered against the three accused. After completion of the investigation, 4 challan was filed in the Court and the accused were charged with having committed the offences detailed here-in-above. They pleaded not guilty and claimed trial. After trial, the accused were acquitted. Hence the present appeal. Admittedly, this is a case of circumstantial evidence and nobody witnessed the murder of Sarwan Kumar. In fact, it is not clear whether he was murdered or died due to a fall. Even assuming that he was murdered, it was for the prosecution to prove who murdered the deceased. It is well settled law that in the case of circumstantial evidence, the prosecution must not only prove all the circumstances against the accused but should also link the circumstances in such a fashion that the only irresistible conclusion which can be drawn is the guilt of the accused. The hypothesis of guilt should be conclusive, consistent and should exclude any chance of any other person having committed the offence. In case there is any chance of the accused being innocent, the Court has to decide the matter in favour of the accused. 5 The only circumstance relied upon by the prosecution is that there was a quarrel between deceased Sarwan Kumar and accused Sukhdev Singh. It was further alleged that in this quarrel, Surjit Kumar also took a part. The only role ascribed to Bhag Singh, accused is that the quarrel took place in his house. It is not disputed that both Sukhdev Singh and Sarwan Kumar consumed liquor in the house of Bhag Singh. In fact, Bhag Singh, accused has not denied this fact. He in fact, went to the house of Duni Chand where a video film was being shown and requested the villagers to remove these two persons who were quarreling in his house. He also shouted towards the village of the deceased and asked his brothers to take away Sarwan Kumar and Sukhdev Singh. PW/2 Sujju Ram is the elder brother of the deceased. He stated that at about 10.30 or 10.45 p.m, he heard the shouts of Bhag Singh to the effect that they should take away Sarwan Kumar (deceased) and Sukhdev, accused otherwise he would send both of them to the police station. He did not respond to this call of 6 Bhag Singh. He again heard another call at about 11.15 p.m to the same effect and then he deputed his younger brothers namely Bhag Singh and Dhannu Ram to go to the house of Bhag Singh accused to bring back his brother Sarwan Kumar. They returned after sometime but without the deceased. Next day at about 2.00 or 2.30 p.m, he came to know that the dead body of Sarwan Kumar was lying in the street behind the cattle shed of Munshi Ram. This place is at a distance of 50-60 yards from the courtyard of Bhag Singh, accused. PW/3 Bhag Singh is the brother of the deceased. According to him, he and his brother Dhannu Ram were deputed by their elder brother to go to the house of Bhag Singh, accused and bring back his brother Sarwan Kumar to their house. They went to the village of Bhag Singh and were informed by the wife and brother-in- law (Sala) of Dharam Singh that accused Surjit and Bhag Singh had inflicted 5-7 danda blows to Sarwan Kumar and thereafter, Sarwan Kumar had left the house of Bhag Singh. At that time, Sukhdev, accused was sleeping in the house of Bhag Singh. Both of them returned to their house 7 and next day came to know that the dead body of Sarwan Kumar was lying in the street behind the cattle shed of Munshi Ram. This witness was confronted with his statement recorded under Section 161, Cr.PC, Ext.PC, wherein it is not recorded that he was informed by the wife and brother-in-law of Dharam Singh that they had seen Bhag Singh and Surjit inflicting danda blows on the deceased. PW/5 Dhannu Ram is the brother of the deceased who had accompanied Bhag Singh, PW/3. His statement is to the similar effect. According to him, when they reached the village of Bhag Singh, accused, they went to the house of Dharma who told them that Sarwan Kumar had already left and must have reached his house. In cross-examination, this witness stated that other than Dharam Singh alias Dharma, referred to in his examination-in-chief, they did not meet any other person in village Panoh. Thus the statements of these two witnesses are diametrically opposite. Whereas according to PW/3 they met the wife and brother-in-law of Dharm Singh who told them that Surjit and Bhag Singh, accused 8 had given danda blows to the deceased, the other brother, PW/5 states that they only met Dharam Singh. The statements of these two brothers are also contradicted to the statement of PW/20 Sagro Devi, wife of Dharam Singh. According to her, she was watching a video film of the wedding of Jaswant Singh in the house of Duni Chand when Bhag Singh came and said that Sarwan Kumar and Sukhdev were exchanging abuses after having consumed liquor and, therefore, somebody should take them away. She further stated that then Surjit alongwith Manoj Kumar, PW/19 and Deepak, PW/18 went to the house of Bhag Singh and after some time they returned saying that neither Sarwan Kumar nor Sukhdev were present in the courtyard of Bhag Singh. Though this witness was declared hostile and was cross-examined by the prosecution, nothing material has been extracted in her cross-examination. Therefore, she belies the statement of PW/3 that she informed him that the deceased was beaten by Bhag Singh and Surjit. PW/18 and PW/19, Deepak and Manoj Kumar corroborate the statement of PW/20 Sagro Devi. According to them, after 9 Bhag Singh complained about the behaviour of Sarwan Kumar (deceased) and Sukhdev, accused, they went to the house of Bhag Singh. Sarwan Kumar ran away and Sukhdev who was highly intoxicated was made to sleep in the house of Bhag Singh. PW/11 Rattan Chand stated that at about 11 or 11.30 p.m Bhag Singh, accused came to his house and requested him to make a telephone call to the police station complaining about the conduct of Sarwan Kumar, deceased and Sukhdev, accused. This witness stated that he refused to make the call but went to the house of Bhag Singh after 15 minutes. When he reached the house of Bhag Singh, Sarwan Kumar had already left and Sukhdev was sleeping in the house of Bhag Singh. This witness was declared hostile and was cross-examined but to no avail. These are the witnesses with regard to the occurrence which took place on 9.9.1994. None of these witnesses stated that they saw any of the accused beating the deceased. All that they said is that after the deceased and Sukhdev consumed liquor, they quarrelled 10 with each other. Thereafter, Bhag Singh complained about the behaviour of these two persons and requested his co-villagers to separate them and to ensure that they leave his house. It also stands proved that Sarwan Kumar left the house of Bhag Singh all by himself and Sukhdev went to sleep. There is not a word in the statement of any witness that any of the accused gave a beating to the deceased. The only statement in this regard is of PW/3 which is totally hearsay and the persons from whom he has received the information have denied making such a statement. Therefore, there is no evidence whatsoever to connect the accused with the death of the deceased. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 22nd April, 2010 (Rajiv Sharma) (m) Judge 11