1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal Nos. 25, 50, 127 and 199 of 1998 Judgment reserved on : 30.6.2008 Date of decision: 17.9.2008 1. Cr. Appeal No. 25 of 1998 Suresh Kumar .. Appellant Versus State of H.P. Respondent Mr. Chander Shekhar Sharma, Advocate, with Ms. Anu Tuli, Advocate, for the appellant. Mr. Rajesh Mandhotra,l Deputy Advocate General, for the respondent. 2. Cr. Appeal No. 50 of 1998 Smt. Parveen Sabarwal .. Appellant Versus State of H.P. Respondent Mr. Deepak Gupta, Advocate, with Ms. Anu Tuli, Advocate, for the appellant. Mr. Rajesh Mandhotra,l Deputy Advocate General, for the respondent. 3. Cr. Appeal No. 127 of 1998 Rajesh Kumar .. Appellant Versus State of H.P. Respondent Mr. N.K.Thakur, Advocate, for the appellant. Mr. Rajesh Mandhotra,l Deputy Advocate General, for the respondent. 4. Cr. Appeal No. 199 of 1998 Uttam Kumar Kumar .. Appellant Versus State of H.P. Respondent Mr. Deepak Gupta, Advocate, with Ms. Anu Tuli, Advocate, for the appellant. 2 Mr. Rajesh Mandhotra,l Deputy Advocate General, for the respondent. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge Whether approved for reporting?1 ___________________________________________________________ Per R.B.Misra, J. This appeal has been preferred by the accused-appellants (hereinafter referred to as the accused) against the common judgment and order dated 22.12.1997 passed by the learned Sessions Judge, Shimla in S.Tr. No. 28-S/7 of 1997 convicting and sentencing all the accused-appellants as under:- 1.Uttam Kumar Kumar (i) under Sec. 120-B read with Sec. 302 and 382 IPC Life imprisonment and fine of Rs. 5000/- . In default of payment of fine, rigorous imprisonment for two years. (ii) Under Sec. 302 IPC Life imprisonment and fine of Rs. 5000/- . In defaut of payment of fine, rigorous imprisonment for two years. (iii) Under Sec. 382 IPC Rigorous imprisonment for 5 years and fine of Rs.2000/-. In default of payment of fine, rigorous imprisonment for six months. (iv) under Sec. 404 IPC Rigorous imprisonment for one year and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for three months. (v) under Sec. 201 read with Secs. 302, 382, 404 and 120-B IPC Rigorous imprisonment for two years and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for six months. 2.Suresh Kumar (i) under Sec. 120-B read with Sec. 302 and 382 IPC Life imprisonment and fine of Rs. 5000/- . In default of payment of fine, rigorous imprisonment for two years. (ii) under Sec. 302 IPC Life imprisonment and fine of Rs. 5000/- . In default of payment of fine, rigorous imprisonment for two years. (iii) under Sec. 382 IPC Rigorous imprisonment for 5 years and fine of Rs. 2000/-. In default of payment of fine, rigorous imprisonment for six months. (iv) under Sec. 404 IPC Rigorous imprisonment for one years and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for three months. (v) under Sec. 201 read with Secs. 302, 382, 404 and 120-B IPC. Rigorous imprisonment for two years and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for six months. 3.Smt. Parveen (i) under Sec. 120-B read with Life imprisonment and fine of Rs. 5000/- 1 Whether reporter of local papers is allowed to see the judgment? No. 3 Sabarwal Sec. 302 and 382 IPC. . In default of payment of fine, rigorous imprisonment for two years. (ii) under Sec. 302 IPC Life imprisonment and fine of Rs. 5000/- . In default of payment of fine, rigorous imprisonment for two years. (iii) under Sec. 382 IPC Rigorous imprisonment for two years and fine of Rs. 2000/-. In default of payment of fine, rigorous imprisonment for six months (iv) under Sec. 404 IPC Rigorous imprisonment for one year and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for three months (v) under Sec. 201 read with Secs. 302, 382, 404 and 120-B IPC. Rigorous imprisonment for two years and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for six months. Rajesh Kumar Under Sec. 404 IPC Imprisonment for the period for which he has already been in custody during investigation/trial from 16.4.1997 and fine of Rs. 500/-. In default of payment of fine, simple imprisonment for one month. 2. These above appeals were adjudicated earlier and by a common order dated 11.5.2000, the Division Bench of this court has allowed the aforesaid appeals and all the above mentioned accused were acquitted against which the State of Himachal Pradesh preferred Criminal Appeal Nos. 875 to 878 of 2000. Hon’ble Supreme Court while allowing the above said criminal appeals vide its order dated 27.4.2007, has been pleased to set aside the above judgment and order dated 11.5.2000 passed in Criminal Appeal Nos. 25, 50, 127 and 199 of 1998, with direction remanding the cases back to this High Court for reconsideration of the evidence and fresh decision in accordance with law, observing that the opinion expressed by Supreme Court is not final on any factual issue and it would be open to High Court to give its fresh judgment uninfluenced by any observation made by the Supreme Court in its order dated 27.4.2007. 3. In the light of the above directions of Hon’ble Supreme Court present appeals have now been heard at length and are being disposed of by a common judgment. 4. In order to adjudicate the above criminal appeals, it is necessary to deal with the prosecution case. Ramesh Kumar 4 (deceased) resident of village Hat, Tehsil Theog, district Shimla, H.P., was owner of Car No. HP-09-1617 and his brother Vasu Dev (PW-2) was owning a taxi (Maruti Van) No. HP-09-1214. Both of them were present at Chhaila on 1.4.1997. at about 4.00 p.m. where accused Uttam Kumar Kumar approached Vasu Dev to hire his taxi for going to Kalka saying that his brother had met with an accident near Surajpur and was in a serious condition, however, Vasu Dev expressed his inability to take his taxi to Kalka because his taxi was out of order. Accused, Uttam Kumar Kumar implored him that keeping in view the situation in which the accused was, some arrangement might be made for taking him to Kalka. Since Ramesh Kumar was going to Solan for servicing of his car, Vasu Dev asked him to carry the accused upto Kalka. Uttam Kumar Kumar informed them that he wanted to carry two more persons in the vehicle from Mouri-Kiar road and two more persons from Fagu. Thereupon, Ramesh Kumar, deceased, alongwith accused Uttam Kumar Kumar took his car to Mouri-Kiar and from there, they started towards Kalka. On the way, Ramesh Kumar stopped near his house in village Hat and informed his mother that he would be back late in the night or the next morning. Ramesh Kumar, however, did not return home even on the next day, and hence his father Sita Ram (PW-1) asked PW-2 (Vasu Dev) to search for Ramesh Kumar. PW-2 telephonically contacted his relatives at Shimla and other places to find out the whereabouts of Ramesh Kumar and also went towards Kalka in his taxi. On his way to Kalka on 5.4.1997, Vasu Dev made enquiries at Police Station, Dharampur where he was informed that Spatu Police had taken in its possession a car under Section 102 Cr. P.C. as the same was found lying abandoned. Vasu Dev then went to Spatu and recognized the car owned by his brother Ramesh Kumar with the help of a sticker as its number plate was found missing. In the meanwhile, on the same day, Sita Ram (PW-1), father of Ramesh 5 Kumar and Vasu Dev, lodged a report about the missing of Ramesh Kumar since 1.4.1997 at Police Station, Theog. In the evening on the same day, when Vasu Dev returned home, he informed his father about taking in possession of the abandoned car of Ramesh Kumar by Spatu Police. This made Sita Ram apprehensive of the safety of his son Ramesh Kumar. On 6.4.1997, when a head constable had gone to the village of the deceased to make enquiries about the report lodged by his father, PW-1 (Sita Ram) informed him that car of the deceased had been found at Spatu. Thereupon, the said head constable, namely, Ram Singh (PW-15) recorded the statement of Sita Ram under Section 154 Cr.P.C. Ex. PB and as a consequence, FIR No. 50 of 1997 under Sections 364/34 IPC was registered at Police Station, Theog. For almost a week, neither the police nor the relatives of Ramesh could secure any information about the whereabouts of Ramesh Kumar. On 12.4.1997, PW-2 (Vasu Dev) went to the temple of the local Diety in village Guthan to get the blessings of the Diety in tracing out his brother. When he came out of the temple, a resident of the village informed him that a young man and a young woman had been staying in the house of Mast Ram in village Guthan for 20 to 25 days prior to 1.4.1997. Thereafter, Vasu Dev contacted Mast Ram who confirmed the said information given by the villager and it was also found that son of Mast Ram, namely, accused Suresh Kumar had also left the village with the said young man and woman on 1.4.1997 but had not returned back. The villagers and Mast Ram further informed Vasu Dev that the said young man and woman had come to the village in Taxi No. HPY-1992 which remained parked outside the house of Mast Ram even after they had left, but for the last two or three days, the taxi was not there. On the request of Vasu Dev, Mast Ram agreed to send his own son Mohinder Singh with Vasu Dev, next day, so that, both of them could search for Ramesh Kumar and Suresh Kumar. 6 5. On the next day i.e. 13.4.1997, Mohinder Singh came to Chhaila and met Vasu Dev who was at that time accompanied by Inder Singh. He informed Vasu Dev that the young man and young girl who had been staying in his house in village Guthan had given their address to him and that they were residents of Jutogh cantonment. Thereafter, Vasu Dev, Inder Singh and Mohinder Singh came to Jutogh where Mohinder Singh went to the house whose address was available with him while Vasu Dev and Inder Singh remained at some distance. On the call of Mohinder Singh, accused Uttam Kumar Kumar came out of the house and was indentified by Vasu Dev and Inder Singh as the person who had left Chhaila on 1.4.1997 in the car of Ramesh Kumar. Thereafter, Mohinder Singh, Inder Singh, Vasu Dev went to the Police Station, Theog and narrated the aforesaid facts to the Officer-in-Charge of the said Police Station. On receipt of this information, the Officer-in-Charge, Police Station, Theog alongwith a few other police officials, Vasu Dev, Inder Singh, Mohinder Singh and a few other persons of the locality came to Jutogh where the house of accused Uttam Kumar Kumar was surrounded. At about 6 a.m. accused Uttam Kumar Kumar came out of his house and was identified by Vasu Dev and Inder Singh as the person who had accompanied the deceased in his car on 1.4.1997 from Chhaila. Accused Uttam Kumar Kumar was taken into custody by the police and was brought to Police Station, Theog. During the course of interrogation, accused Uttam Kumar Kumar allegedly made a disclosure statement that he and accused Suresh Kumar and Parveen Sabarwal had hidden the dead body of Ramesh Kumar under a culvert near Ganahhati and in that sequence accused Uttam Kumar Kumar got recovered a badly defaced dead body in the presence of Inder Singh and Shiv Dutt who identified the dead body so recovered to be that of deceased Ramesh Kumar. A rope was tied around its neck. The doctor who conducted the post mortem of the dead body 7 noticed two ligature marks on the neck and opined that the cause of death of the deceased was asphyxia resulting from ante mortem strangulation by ligature. Some other external and internal injuries i.e. fracture, contusions and abrasions were also noticed on the dead body. On the evening of 14.4.1997 accused Suresh Kumar and Parveen Sabarwal were also arrested by the police. On 16.4.1997 while in police custody, accused Suresh Kumar allegedly made a disclosure statement in the presence of PWs Om Prakash and Sita Ram that he could point out the spots by visiting the same where he alongwith Uttam Kumar Kumar and Parveen Sabarwal had murdered the driver of Maruti Car No. HP-09-1617, removed the number plate of the car, took off the wearing apparels etc. from the body of Ramesh Kumar and where the dead body was thrown and concealed. He further disclosed that he had hidden the stone and sythe used for preparation of `kiltas’ wherewith the face of the deceased was defaced by him and could get the same recovered. It was also disclosed that they knew the spots where the wearing apparels of the deceased, number plates of his vehicle and documents etc. had been burnt. Pursuant to this statement, a stone and a drati were recovered and were taken in possession by the police at the instance of accused Suresh Kumar. Accused Suresh Kumar and Uttam Kumar Kumar also led the police party to a spot in a forest near Hira Nagar and pointed out a place where some ash, partly burnt pieces of wood and plastic articles were lying. Those were also taken in possession by the police. 6. On the same day i.e. 16.4.1997 accused Parveen Sabarwal also made a disclosure statement stating that she had kept hidden wrist watch of the deceased in the house of the brother of her husband in Jutogh alongwith the clothes of the accused persons which they were wearing at the time of the commission of the offence and which she could get recovered. Pursuant to the said statement, accused 8 Parveen Sabarwal got recovered the wrist watch of the deceased and also some clothes from the residential house of accused Rajesh Kumar at Jutogh Cantt. which were also taken in possession by the police. 7. On 18.4.1997, Rajesh Kumar aforesaid who is brother of accused Uttam Kumar Kumar was also arrested by the police alonwith his Maruti Van No. HP-02-1111. A few tools were recovered from his said van which were identified as belonging to the deceased. On the same day, accused Rajesh Kumar made a disclosure statement that he had kept hidden four rims with tyres and some tools under a culvert near village Dhanda and some parts of a Maruti Car had been kept by him under a culvert near Kachi Ghati. Pursuant to the said statement, accused Rajesh Kumar got four rims and tyres and some parts of Maruti Car recovered which rims and parts were identified by Vasu Dev as those of the car of his deceased brother Ramesh Kumar. On 20.4.1997, accused Uttam Kumar Kumar made yet another disclosure statement to the effect that he had kept hidden the number plate of Car No. HP-09-1617 in the house of his brother Rajesh Kumar. Pursuant to such statement, he led the police party to the house of his brother Rajesh Kumar and got the number plate recovered which was taken in possession by the police. 8. On conclusion of the investigation, the officer-in-charge of the concerned police station submitted a charge sheet against the accused persons under Sections 302, 201, 212, 404, 414 and 120-B IPC. 9. The learned Sessions Judge framed a charge under Sections 120-B read with Sections 302 and 382 IPC; 302 IPC, 382 IPC, 404 IPC and Section 201 IPC read with Sections 302, 382, 404 and 120-B IPC against accused Uttam Kumar Kumar, Suresh Kumar and Parveen Sabarwal and a charge under Sections 120-B read with Sections 382 and 302 IPC, 404 IPC and Section 201 IPC read with 9 Sections 302 and 382 IPC and 120-B IPC was framed against accused Rajesh Kumar. Accused pleaded not guilty to the said charges. 10. To prove the charges against the accused, the prosecution has examined as many as 19 witnesses, i.e. PW1 (Sita Ram), son of Narain Dutt, resident of village Village Haat, Tehsil Theog, District Shimla the father of deceased Ramesh Kumar, PW-2 (Vaudev) the brother of deceased Ramesh, PW-3 (Nek Ram), employed as Naib Nazir in the court of Sub Judge, Theog as an independent witness, PW-4 (Ved Parkash Sharma), associated in the investigation, PW- 5(Mohinder Singh) the brother of one of the accused, PW-6 (Shiv Dutt Bhardwaj) an independent witness, resident of village Sanahu, P.O. Kiar, Tehsil Theog, District Shimla, PW-7 (Inder Singh Chauhan) son of late Shri Chet Ram, resident of Chhaila, Tehsil Theog, District Shimla, PW-8 (Sita Ram), son of Shri Gauri Dutt, resident of Naudi Pargna Palana, Tehsil Theog, District Shimla, PW-9 (Inder Singh), PW-10 (Dharmender Pal) were persons associated with the investigation, PW-11 (Ved Parkash), M.H.C.-cum-Incharge of Malkhana, Police Station, Theog, PW-12 (Bhagwan Singh) Constable Police Station Theog, PW-13 (Harinderjit Singh) Medical Officer in I.G.M.C., Shimla, who conducted the postmortem examination of the dead body of deceased Ramesh Kumar, PW-14 (Birbal Ram) ASI Una, PW-15 (Ram Singh) H.C., Police Station Theog, PW-16 (Sri Ram) ASI, PTC Daroh PW-17 (Basti Ram), A.S.I, PTC, Daroh, PW- 18 (Mohan Singh), SI, Additional S.H.O. Police Station, Dhalli, who conducted the investigation as an Investigating Officer and PW-19 (Ms.Anju Sharma), wife of deceased Ramesh. 11. Statements of the accused under Section 313 Cr.P.C. were recorded wherein accused persons denied the prosecution case. Accused Rajesh Kumar further claimed that at the relevant time, many dead bodies were found in Ganahatti area and the police could not apprehend the real culprits and falsely implicated the accused 10 persons. Accused Uttam Kumar Kumar and Parveen Sabarwal further claimed that they were pressurized/tortured to make the disclosure statements. Accused Suresh Kumar claimed that he had gone to the house of his maternal uncle in village Himri, where he was informed that his brother was arrested. So he went to Police Station, Theog to find out as to why his brother was arrested and when he reached there, police arrested him. The accused, however, did not lead any defence. 12. Learned Sessions Judge has made the following points for determination:- 1. Whether the prosecution has proved beyond reasonable doubt that the accused hatched a conspiracy to commit the robbery of the car of deceased Ramesh Kumar and also to murder him in case he put up resistance and in pursuance of that conspiracy they murdered said Ramesh Kumar and committed the theft of his car No. HP-09-1617 on 1.4.1997 at some place within the jurisdiction of this court ? 2. Whether the prosecution has proved beyond reasonable doubt that the accused persons misappropriated the car, some valuable parts of the car and some personal belongings like wrist watch of the deceased knowing that he was dead and thereby committed an offence under Section 404 of the Indian Penal Code ? 3. Whether the prosecution has proved beyond reasonable doubt that the accused persons destroyed/caused the dis-appearance of evidence of the conspiracy, the murder and the theft with a view to screening themselves from legal punishment ? 4. Final order. 13. On the basis of the material on record, testimony of prosecution evidences and analysis of exhibits, the learned Sessions Judge has arrived at a finding in respect of the aforesaid points as under:- Point No. 1. Yes. However, only three accused namely Uttam Kumar Kumar, Suresh Kumar and Smt. Parveen Sabarwal are proved to have hatched the conspiracy and to have committed the offences of murder and theft in pursuance of the said conspiracy. Point No. 2 . Yes. Pont No. 3. Yes. However, only three viz Uttam Kumar Kumar, Suresh Kumar and Smt. Parveen Sbaarwal and not all the four accused are guilty of this offence. Final Order. Accused Utttam Kumar, Suresh Kumar and Smt. Parveen Sabarwal are convicted of offences under Section 120-B read with Sections 302 & 382 IPC, under Section 302 IPC, under Section 382 IPC, under 11 Section 404 IPC and under Sections 201 read with Sections 302, 382, 404 and 120-B IPC. Accused Rajesh Kumar is convicted of offence under Section 404 IPC. He is acquitted of the remaining two offences, included in his charge sheet.” 14. In support of the findings arrived at, learned Sessions Judge has dealt with the case in the facts and circumstances and keeping in view that there is no direct evidence of the commission of the crime and it was through circumstantial evidence that the prosecution sought to prove the charges. The prosecution, in order to prove the circumstances, has led evidences to make complete chain for concluding and proving the guilt of the accused as below:- i) Accused Utam Kumar and Smt. Parveen Sabarwal stayed in village Guthan at the house of Mast Ram for 20/25 days and when they left his house on 1.4.1997, they had no money with them and borrowed Rs.200/- from Mohinder Singh one of the sons of Mast Ram to meet their travelling expenses and thus they were in need of money. ii) Accused Uttam Kumar Kumar and Smt. Parveen Sabarwal went to village Guthan in taxi No. HPY-1492 belonging to accused Uttam Kumar Kumar, but leaving that taxi in the village, they started back on foot on 1.4.1997. iii) Accused Uttam Kumar Kumar went to Chhaila and pretended to hire the taxi of Vasu Dev for going to Kalka alongwith his companions, though he did not have enough money to pay taxi charges. iv) Accused Uttam Kumar Kumar pretended that one of his close relatives had met with an accident at Kalka and, therefore, he alongwith his companions wanted to reach that place at the earliest possible and requested Vasu Dev to make some arrangement for him upon which Vasu Dev required his brother Ramesh Kumar deceased to take him to Kalka by his car No. HP-09-1617. v) Accused Uttam Kumar Kumar boarded Ramesh Kumar’s car at Chhaila and the car then proceeded towards Mouri-Kiar side and from there it went towards Kalka. vi) The same day, i.e. on 1.4.1997, deceased Ramesh Kumar met Nek Ram, PW-3, at Theog in the evening while driving his car No. HP-09-1617, and at that time accused Uttam Kumar Kumar, Suresh Kumra and Parveen Sabarwal were in his car and deceased Ramesh Kumar had a talk with said Nek Ram for about five-seven minutes. vii) According to the post mortem report, Ramesh Kumar had been strangulated to death on or about 1.4.1997, or say on or about the day when he was last seen in the company of accused Uttam Kumar Kumar, Suresh Kumar and Smt. Parveen Sabarwal. viii) Within a few days of Ramesh Kumar’s dis-appearance, i.e. on 5.4.1997, his car was found lying abandoned, with three of its new rims replaced and 12 stepney and several valuable articles missing, at a place called Dochi near Subathu. ix) Accused Uttam Kumar Kumar, while in police custody, made a disclosure statement leading to the recovery of the dead body of Ramesh Kumar from under a culvert near Ganahati. x) Accused Suresh Kumar made a disclosure statement pursuant to which a stone used in defacing the dead body and a knife in committing the crime were recovered. xi) Accused Uttam Kumar Kumar and Suresh Kumar led the police to a lonely place in a forest where they had burnt the clothes of the deceased, documents of his car and the number plate and ash, pieces of partly burnt wood, charcoal and pieces of partly burnt plastic etc. were recovered from that site. xii) Accused Smt. Parveen Sabarwal made a disclosure statement which led to the recovery of the wrist watch of the deceased. xiii) Accused Rajesh Kumar was found in possession of tool of the car of the