1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 52/1999 Decided on September 10, 2010 State of H.P. …Appellant. VERSUS Rajesh Singh @ Rajesh Kumar ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl. AG Mr.Anil Jaswal, Dy.AG For the Respondent: Mr. H.K.S.Thakur, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 2.11.1998 passed by learned Sessions Judge, Shimla HP in S.Tr. No. 22-S/7 of 1998, thereby acquitting the respondent / accused for the offence under Section 302 of the Indian Penal Code. 2. The prosecution case is that on 26.12.1997, Neev Kala, wife of deceased Bir Bhadur went to PW-1 Muni Lal, resident of villge Shilad, on whose land the deceased used to work as a labourer, and informed him that Bir Bhadur had died Whether the reporters of the local papers maybe allowed to see the judgment? 2 and his dead-body was lying in his Dera. Muni Lal informed the Pradhan of the Panchayat, namely Mangat Ram, who in turn, informed the police officials, posted at police post, Sarswati Nagar, telephonically at 9.35 PM, accordingly, the report was lodged and police reached the Dera of the deceased. On reaching the village, they recorded the statement of Neev Kala, the wife of the deceased, under section 154 of Cr.P.C, stating that on 25.12.1997, at about 9 PM, accused Rajesh Kumar Bihari, who was known to her, came to their Dera and aftere taking meals slept there. On 26.12.1997, around 10 AM, he started quarreling with the deceased and even slapped him on his face, Neev Kala asked when she had offered meals and has permitted him to sleep at their place, why he was quarreling with her husband. However, after providing meals to the accused and the deceased, she (Neev Kala) went to the Dera of one Dil Bhadur and returned after half and hour and found that the accused was missing and her husband was lying near the hearth. She thought that he might be asleep, but when when she went near him she saw blood was flowing from his neck. Thereafter, she started crying and went to the village to inform the people that her husband had been killed. On the basis of the afaoresaid report, FIR No. 140/97 was lodged. 3. PW-7 Doctor, Laxmi Nand, conducted postmortem examination of the deadbody and noticed a sharp incised wound measuring 10 cm. x 4 cm. x 4 ½ cm. on the left side of the neck and lower jaw extending 3 cm. from tip of the chin across lower jaw to the neck 3 cm. below the left angle of jaw. (PW-7) also 3 noticed a sharp cut on the lower border (across) the mandible with comminuted fracture at anterior part. External carotid artery was cut at the bifurcation of common carotid artery along with muscle in the digestric triangle. (PW-7) opined that the cause of death was excessive bleeding, on account of cutting of external carotid artery and that the death appeared to have taken place instantaneously. (PW-7) also opined that the time lag between the death and post mortem was between 24 to 48 hours. The clothes of the deceased were removed from his dead-body by the doctor and sealed in various parcels. Those clothes along with the axe and the guny bag seized from the spot by the police, were sent to the Chemical examiner, who opined that the same were stained with human blood. After investigation, the respondent was charged of the aforesaid offence and the case was committed to session trial. 4. In order to prove its case, prosecution has examined as many as 8 prosecution witnesses whereas, through his statement recorded under section 313 Cr.PC, accused/ respondent denied the prosecution case. 5. PW-4 Dil Bhadur, in support of the prosecution case, has stated that on the night of 25.12.1997, around eight or nine, the wife of the deceased shouted to him from her own Dera and said that accused Rajesh was in a drunken state and had been quarrelling with her husband. PW-4 has further stated that he went to the Dera of deceased and found that the accused and the deceased were sitting inside the Dera and consuming liquor and further stated that the accused was quarrelling with Bir Bhadur 4 and so he tried to take him away from deceased’s Dera forcibly and pulled him to some distance, but he (accused) got himself released from him and went back to deceased’s Dera. The testimony of the witness is in total contradiction with the earliest version, which was given to the police by the widow of the deceased, namely Neev Kala through statement Ext PC where there was no mention that the accused quarreled with the deceased on the previous night nor was there any mention that the wife of the deceased called PW-4 Dil Bhadur. PW-4 further stated that deceased’s wife shouted by saying that the accused was at Dera and quarrelling with her husband. For the aforesaid variance, the testimony of PW-4 that he saw the accused at the Dera of the deceased, on the night of 25.12.1997 cannot believed. 6. The offence is alleged to have been committed not on the night of 25.12.1997, but on 26.12.1997, during day time after 10 AM and there is no evidence, on record, showing that accused stayed at the house of the deceased for the night and remained there till the killing of the deceased. Only Neev Kala, wife of the deceased, could have proved this fact, but she is not traceable and for that reason the prosecution could not produce her at the trial. Thus, the first circumstance that the deceased was last seen in the company of the accused does not stand proved. PW-4, who is of doubtful nature, hails from Madhya Pradesh and there is nothing on record showing that he has any place of work in the State of H.P. Under such circumstances, it cannot be said that he fled from the area, where the murder has 5 been committed. Nobody has come forward to say that the accused was ever seen in that area, except PW-4 Dil Bhadur, whose testimony does not inspire confidence. According to PW- 4, Neev Kala informed him in the evening at 6/7 PM that her husband had been killed by Rajesh Kumar by inflicting blows of axe on his person. The statement of PW-4 cannot be believed because Neev Kala herself did not report to the police, while making statement Ext PC that she had seen the accused killing her husband, leave alone her having said that she saw the accused inflicting blows of axe on her husband’s body. Not only this, Neev Kala told the police that she was not at the Dera when the crime had been committed. Another reason for disbelieving the testimony of PW-4 is that Muni Lal, who was the first to be informed about the incident by Neev Kala, has no where stated that Neev Kala told him that her husband had been murdered by Rajesh Kumar accused. PW-4 has stated that Neev Kala told him only this much that her husband had died and his dead body was lying at the Dera. The witness stated in the cross- examination that Neev Kala came to him to inform about the death of Bir Bhadur at 2.00 PM. When Neev Kala did not inform Muni Lal PW-1 at 2.00 PM, how her husband had died, the testimony of PW-4 that he was informed at 6/7 PM by the wife of the deceased that it was the accused who had committed the murder by inflicting blows of axe, cannot be believed. 7. On analysis of the prosecution witnesses and materials on record, we notice that none of the prosecution witnesses have seen the occurrence and the accused/respondent 6 assaulting the deceased. The entire prosecution case is based on circumstantial evidence and the prosecution has not been able to link the story that the assault was given by the accused/respondent to the deceased. The entire chain or link is missing. Merely on conjectures and surmises, accused/respondent cannot be held guilty of the offence of keeling the deceased Bir Bhadur. 8. In the facts and circumstances, on the basis of testimony of prosecution witnesses and materials on record, learned Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, we find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 9. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 10th September, 2010 ( V.K.Sharma ), J. (sl) 7