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2013 DIGILAW 13 (HP)

State of Himachal Pradesh v. Ram Nath

2013-01-02

DEEPAK GUPTA, KULDIP SINGH

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JUDGMENT Deepak Gupta, J This appeal by the State is directed against the judgment dated 30.9.2004 delivered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No.11 of 2004 whereby he acquitted the accused for having committed offence punishable under Sections 302, 201 IPC. 2. The prosecution story is that the four accused were working as labourers with the work force of Boarder Roads Organization at Maling in District Kinnaur. They were residing in labour hutments. According to the prosecution on 23.11.2003 at about 8-9 p.m., two persons of Nepalese origin (Gorkhas), one of whom was young and the second one was older were on their way from Chango towards Yangthang and then to Reckong Peo. These two Gorkhas were carrying their household goods. They went to drink water in the hutments in which the accused persons were residing. After taking water these two Gorkhas left Maling towards Yangthang. The four accused picked up a quarrel with the two Gorkhas. It is also the prosecution case that the accused wanted to rob the Gorkhas of the money available with them. Since the Gorkhas were returning after the work season was over, they might have been carrying huge amount of money with them. 3. The prosecution story is that the four accused caused multiple injuries to these two Gorkhas. The younger Gorkha started running from Maling towards Yangthang. He was chased by the four accused who killed him. After committing the murder of the younger Gorkha, his body was dumped below the NH-22. The older Gorkha was stated to have sustained fatal injuries at some distance from the hutments of the accused persons. Thereafter they had picked up the body of the older Gorkha and dumped it near the bank of river Spiti. The motive ascribed to the accused for committing the offence is the robbery. 4. The information regarding the commission of offence was given by PW-7 Kundan Lal , Chowkidar of the IPH Rest House at Maling who noticed some marks of blood on the National Highway near the hutments of the accused. PW-7 reported the matter to the police. On receipt of such information PW-10 Krishan Lal, Head Constable incharge of the Police Post at Yangthang went to Maling. He carried out extensive search and inspected the Maling area. PW-7 reported the matter to the police. On receipt of such information PW-10 Krishan Lal, Head Constable incharge of the Police Post at Yangthang went to Maling. He carried out extensive search and inspected the Maling area. On 24.11.2003 the dead body of the younger Gorkha was found at a distance of ½ K.M. from Maling towards Yangthang. The belongings of the deceased as also their purses were found lying in the rocks and stones below NH-22. PW-10 during investigation found marks of blood on NH-22 in the area of Maling near the hutments of the accused person. The body of the younger Gorkha which was found on 24.11.2003 was sent for postmortem. 5. The next day i.e. on 25.11.2003, PW-10 in presence of witnesses had again carried out search of Maling area and the dead body of the older Gorkha was found lying near the bank of river Spiti. His body was also sent for autopsy. 6. As per PW-1 Dr. Yogesh Diwan who conducted the postmortem of the younger Gorkha he had been strangulated to death whereas the older Gorkha had sustained multiple injuries including head injury and succumbed to the injuries. On this basis, FIR was registered on 24.11.2003 7. Though during the course of investigation amongst other things near the dead body of the deceased a driving licence in favour of Arjun Singh and an identity card of one Prem Bahadur Adhikari were found. As per the address given in the driving licence Arjun Singh belonged to Bahli Chowki and though the Investigating officer showed the photographs on the driving licence to a number of persons who could not identify any one of the deceased Gorkhas. It appears that no investigation was made to link the identity card in questi on. Therefore, the deceased have not been identified till date. 8. As far as the evidence is concerned, there is no eye witness and the case is based on circumstantial evidence. The law is well settled that in case of circumstantial evidence the prosecution is bound to prove all the circumstantial evidence and link these circumstances in such a fashion that they form a complete chain which leads to only one irresistible conclusion that the crime was committed by the accused and none else. The law is well settled that in case of circumstantial evidence the prosecution is bound to prove all the circumstantial evidence and link these circumstances in such a fashion that they form a complete chain which leads to only one irresistible conclusion that the crime was committed by the accused and none else. In case there is any chance of the crime having been committed by any other person the benefit must be given to the accused. 9. The circumstances relied upon by the prosecution are the recovery of blood stained clothes of accused No.2 Mane Murmu and the recovery of blood stained knife on the basis of disclosure statement of accused No.2 Mane Murmu and the recovery of `750/-at the instance of Ram Nath. All these recoveries have been witnessed by PW-2 and PW-3 and therefore, it would be relevant to refer to their statements. 10. PW-2 states that accused Mane Murmu had made a disclosure statement and stated that he had concealed one knife and blood stained pieces of clothes. The police recorded the disclosure statement of Mane Murmu which is Ex.PW-2/V. Thereafter Mane Murmu got the knife recovered from his hutment. The knife as well as a piece of cloth recovered from the hutment. Both the items were taken into possession vide recovery memo Ex.PW-2/W. 11. PW-3 only states that accused Mane Murmu had made disclosure statement Ex.PW-2/V and stated that he had concealed the knife in his hutment and got the knife recovered. Thereafter Mane Murmu had taken the police, PW-2 and PW-3 to his hutment and got knife Ex.P-1 recovered. PW-3 does not talk of any recovery of clothes at the instance of Mane Murmu. As far as PW-1 is concerned, even he in his cross-examination clearly stated that the accused persons had not made any statement much less a disclosure statement in his presence before the police. He in his cross-examination stated that when the police asked the accused persons as to who had committed the murder, some answer was given which he did not remember. It is also stated that the memos Ex.PW-2/A to Ex.PW-2/S were signed by the witnesses in one-go at the Police Post. The statements of these two witnesses do not support the case of the prosecution with regard to the recovery. Even the blood stained clothes recovered do not show what was the blood group. It is also stated that the memos Ex.PW-2/A to Ex.PW-2/S were signed by the witnesses in one-go at the Police Post. The statements of these two witnesses do not support the case of the prosecution with regard to the recovery. Even the blood stained clothes recovered do not show what was the blood group. Even if it be blood, it has to be linked with the offence in question. The Chemical Examiner found that blood on the piece of cloth was human blood, but could not further identify whether the blood belonged to group B or not which is the blood group of the deceased. As far as the knife is concerned, it could not be identified whether the knife was stained with human blood or not. 12. The second circumstance relied upon against Ram Nath is recovery of `750/-at his instance. PW-2 and PW-3 have not supported this version at all, though, PW-2 has talked about the recovery of some currency notes at the instance of Ram Nath. In cross-examination, he has stated that no disclosure statement was made in his presence. As far as PW-3 is concerned, he only states that Ram Nath got currency notes of `750/-recovered. It is not only necessary to prove the recovery, but it must be proved that a disc losure statement was made and thereafter the person making the disclosure statement led the police and the witnesses to a place where the recovery was made. None of the witnesses has spoken anything in this regard. Even PW-3 in his cross-examination clearly stated that none of the accused persons had made any disclosure statement regarding recovery of knife and according to him currency notes were recovered at a distance of 30 metres from the hutment of the accused persons. This recovery of `750/-is not believable. In case the accused persons had killed the two Gorkhas for money then they would not have hidden a small amount of `750/- out side the hutment in the stones below the road. Furthermore, near the dead bodies of Gorkhas the police found their purses and recovered cash amounting to `4160/-and `2020/-respectively. If the motive was robbery, why would the accused have stolen only `750/- and left more than `6,000/-with the deceased. 13. The only other circumstantial evidence relied upon is that blood was found near the hutment of the accused persons. Furthermore, near the dead bodies of Gorkhas the police found their purses and recovered cash amounting to `4160/-and `2020/-respectively. If the motive was robbery, why would the accused have stolen only `750/- and left more than `6,000/-with the deceased. 13. The only other circumstantial evidence relied upon is that blood was found near the hutment of the accused persons. There is no evidence as far as accused Panma Angchuk is concerned, except the statements of PW-2 and PW-3 that they identified the spot where they had killed the deceased persons. These statements would be inadmissible in evidence. 14. In view of above discussion, this is a case of no evidence. We therefore, find no merit in the appeal which is accordingly dismissed qua respondents No.1,2 and 4. The bail bonds furnished by respondents No.1,2 and 4 are discharged. Since respondent No.3 was declared proclaimed offender, the appeal qua him is consigned to the record room with liberty reserved to the State to apply for revival of the appeal in case he is traced out. In view of the aforesaid order the record of the case shall not be destroyed.