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2012 DIGILAW 545 (HP)

State of Himachal Pradesh v. Dev Raj

2012-09-13

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT Per Deepak Gupta, J 1. This appeal by the State is directed against the judgment dated 1.4.2004 delivered by the learned Additional Sessions Judge, Fast Track Court, Kullu, in Session Trial No. 86 of 2003, whereby he acquitted the accused of having committed an offence punishable under Section 302 of IPC. 2. The prosecution story, in brief, is that on 22nd February, 2003, the incharge Police Post, Sainj sent telephonic information to Police Station, Kullu that a human dead body lying on the Neuli road. Thereafter, PW-15 Sanjay Kumar along with other police officials went to the Neuli where they recorded the statement of complainant PW-1 Jiwan Lal. As per this complaint Ext. PW-1/A Jiwan Lal in connection with the election had come to village Sainj. On 22nd February, 2003 at about 12.00 noon when he reached at Sainj he came to know that the dead body of some person who was a resident of village Sarchi is lying at Neuli. He thereafter went to Neuli and found that on the path next to the veterinary dispensary the dead body of Govind was lying. He also found a red colour cloth (Parna) around the neck of the dead body. There were some injuries on the face and nose. Blood was coming out from the mouth and nose. There were signs of injury on both the cheeks. Blood was found at a distance of about 60 feet away from the dead body. There were dragging marks which indicated that the body had been moved. One shoe was found at a distance of 27 feet from the dead body. The complainant suspected that the deceased had been murdered. 3. On this information, FIR Ext. PW-13/A was recorded and the investigation was carried out. During the course of investigation police found that deceased Govind was running a dabha at Neuli. Further, as per this investigation accused Dev Raj and the deceased were found roaming together prior to the incident at Bus stand, Neuli where they met PW-4 Giridhar. Thereafter both of them went to the shop of PW-8 Devi Ram along with PW-4 and they all consumed liquor there. At about 7.30 p.m. accused told the deceased to go to the bus stand in order to have the meals. Thereafter both of them went to the shop of PW-8 Devi Ram along with PW-4 and they all consumed liquor there. At about 7.30 p.m. accused told the deceased to go to the bus stand in order to have the meals. It was also alleged that the accused was demanding that the deceased handover a bag to the accused but the deceased declined to do so. Both the accused and the deceased left the shop of PW-8 Devi Ram at about 8.00 p.m. After about half an hour accused Dev Raj was seen running towards the village holding the same bag which was earlier being carried by the deceased. When PW-4 Giridhar was on his way to village Satesh, he saw the dead body of Govind on the way. The motive ascribed to the accused is that he had a dispute with his wife and was in dire need of Rs.10,000/- to settle the dispute. It is alleged that he murdered deceased Govind to get the money which was kept in the bag and according to the prosecution he strangled the deceased by using Muffler/Parna and also caused injuries to the deceased. The further evidence led is that the accused also suffered certain injuries during the scuffle which took place between him and Govind. On the basis of the aforesaid evidence, the accused was charged with having committed the offence aforesaid. 4. Admittedly there was no eye witness to the incident and the case is based on circumstantial evidence. The learned trial Court held that none of the circumstances relied upon had been proved and hence acquitted the accused. The State has challenged this judgment by means of this appeal. 5. We have heard Mr. Rajesh Mandhotra, learned Deputy Advocate General on behalf of the State and M/s I.S. Chandel and Neeraj Sharma, Advocates on behalf of the accused. 6. As already mentioned above, this case is based on circumstantial evidence. The law with regard to circumstantial evidence is well settled. It is for the prosecution to prove the circumstances and link them in such a manner that they lead to only one irresistible conclusion that the crime was committed by the accused and none else. In the presence case the prosecution has relied upon the following circumstances:- 1. That the deceased and the accused were last seen together. 2. The injuries on the person of the accused 3. In the presence case the prosecution has relied upon the following circumstances:- 1. That the deceased and the accused were last seen together. 2. The injuries on the person of the accused 3. Extraordinary judicial confession made by the accused 4. Disclosure regarding the recovery of bag of the deceased at the instance of the accused. 7. As far as the first circumstance is concerned, PW-2 Sabha Chand when he appeared the witness box turned hostile and stated that he had not seen anything. According to him he was only told by his wife that one dead body was lying near the dispensary early in the morning when he was returning after answering the call of nature. PW-2 thereafter, informed PW-3 Kahan Chand, village Chowkidar who in turn informed the Police Post Sainj. This witness was declared hostile and cross-examined by the prosecution. He denied the suggestion that on 21st February, 2003 Jiwan Lal, Beli Ram, deceased and the accused had consumed liquor in the fields. He also denied that on 21.2.2003 the deceased and the accused had met him while he was on his way to his shop after the school hours. 8. PW-3 Kahan Chand states that on 22nd February, 2003 PW-2 told him that one dead body was lying near the veterinary dispensary. He thereafter, telephonically informed Police Post, Sainj. PW-4 Giridhar has denied that he knows the accused. According to him he never met the accused or the deceased at Bus Stand, Neuli. His version is that on 21.2.2003 he went to village Satesh along with his wife and stayed there for the night. He denied that the accused had made any statement to the police in his presence. This witness was also declared hostile but stuck to his version that he knew nothing about the accused. Though he admits that he knows Devi Ram PW-8. He denied that after dropping his wife at village Satesh he returned to village Neuli and sat in the shop of Devi Ram. PW-5 Sangat Ram also turned hostile and did not support the prosecution. According to him nothing happened in his presence. PW-8 Devi Ram denied that the accused and the deceased had liquor in his shop. According to him he did not know the deceased at all. He also denied that the accused had made any statement in his presence. PW-5 Sangat Ram also turned hostile and did not support the prosecution. According to him nothing happened in his presence. PW-8 Devi Ram denied that the accused and the deceased had liquor in his shop. According to him he did not know the deceased at all. He also denied that the accused had made any statement in his presence. Thus, none of the material witnesses has supported the prosecution and the first circumstance that the deceased was last seen with the accused has not been proved. 9. Coming to the second circumstance i.e. the injuries on the person of the accused. PW-7 Dr. Ranjit Thakur examined the accused on 24.2.2003 and found certain scratch marks on his forehead, nose, wrist and forearms. He also found bruise on his forehead and abrasion on the cheeks. According to him the injuries could have been 3 to 4 days old. He in cross-examination admitted that these injuries are possible in day today agricultural work. Therefore, though the prosecution has proved that there are certain injuries on the persons of the accused but it has been unable to prove that these were caused in a scuffle with the deceased. This circumstance by itself cannot lead to the conclusion that these injuries were caused in a scuffle between the accused and the deceased. 10. As far as the third circumstance of extrajudicial confession relied upon by the prosecution is concerned, there is virtually no evidence worth the name to support the case of the prosecution. The extraordinary judicial confession was supposed to have been made before PW-5 Sangat Ram. According to the police PW-5 Sangat Ram met the accused on 22nd February, 2003 and enquired from the accused how he had suffered the injuries. The accused told him that he had a quarrel with Govind who had caused the said injuries on his face. This cannot be said be an extraordinary judicial concession by any stretch of imagination because even if this be taken as a gospel truth there is no confession of having committed the crime of murder of Govind. At best this could be used as a circumstance to prove the injuries and link them to a scuffle. PW-5 Sangat Ram when he appeared in the witness box turned hostile and did not support the prosecution. At best this could be used as a circumstance to prove the injuries and link them to a scuffle. PW-5 Sangat Ram when he appeared in the witness box turned hostile and did not support the prosecution. He denied that he had met the accused or that the accused had made such an extrajudicial confession. Therefore, the prosecution has also failed to prove this circumstance also. 11. The last circumstance relied upon by the prosecution is the recovery of a bag of the deceased. The witnesses to the recovery i.e. PW-4 Girdhar and PW-8 Devi Ram have not supported the prosecution case at all and both have denied that any bag was recovered in their presence. PW-4 has also denied that he saw the accused running with this bag and in fact the prosecution has even failed to prove that this bag belonged to the deceased. Therefore, this circumstance is also not proved. 12. In view of the above discussion, we are of the considered opinion that the learned trial Court was fully justified in acquitting the accused. Therefore, we find no merit in this appeal, which is according dismissed. Bail bonds are discharged.