Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1131 (HP)

Ramesh Kumar v. State of H. P.

2014-08-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 10.6.2010 and consequent order date 11.6.2010, rendered by the learned Additional Sessions Judge, Fast Track Court, Chamba, in Sessions Trial No. 20 of 2009, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 302 and 201 IPC, was convicted and sentenced for the offence punishable under Section 302 IPC to undergo imprisonment for life and to pay fine of Rs. 20,000/- and in default of payment of fine amount he was ordered to undergo rigorous imprisonment for six months. However, he was acquitted under Section 201 of the Indian Penal Code. 2. The case of the prosecution, in a nut shell, is that Piar Singh was working as beldar. On 11.2.2009, he had gone to his work at Pukhri and his wife had also left to the house to her maternal uncle. On 12.2.2009, at about 9:00 AM, when Veena Devi wife of the deceased came back to her house she came to know that her husband Piar Singh had not come back from his duty on the night of 11.2.2009. Smt. Malti, a local resident, informed her that the dead body of her husband was lying at Khalui morh in the fields. She rushed to khauli morh alongwith other villagers and found that blood stained jacket, sweater and one shoe of her husband were lying on the road. Blood was also lying on the road. She found the dead body of her husband below the road. There were marks of injury on his head and face. Bruise marks were also present on the body. The police was informed by one Surinder. The police reached the spot. Her statement was recorded under Section 154 Cr.P.C. Ext. PW-4/A. FIR was registered on 12.2.2009. Post mortem on the dead body was conducted by Dr. PW-15 Dr. Vishal Mahajan. He issued post mortem report Ext. PW-15/A. According to him, the deceased died due to head injury leading to cardio-vascular collapse. The matter was investigated by the police and clothes were taken into possession along with the stone. PW-9 Deepak Handa, informed the police that on 12.2.2009 at about 12:00 PM, the accused had come to his shop. His sweater and pant were stained with blood. He asked the accused about the blood stains on his clothes. The matter was investigated by the police and clothes were taken into possession along with the stone. PW-9 Deepak Handa, informed the police that on 12.2.2009 at about 12:00 PM, the accused had come to his shop. His sweater and pant were stained with blood. He asked the accused about the blood stains on his clothes. Firstly, he stated that these were the stains of water but thereafter he stated that he has committed murder of Piar Singh and thrown his dead body below the road. The accused was arrested. His clothes were taken into possession. Viscera was sent to chemical examination. The investigation was completed and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 20 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Ajay Sharma, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, learned Addl. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Fast Track Court, Chamba, H.P. dated 10.6.2010 and consequent order dated 11.6.2010. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1 Duni Chand has prepared the tatima of the spot Ext. PW-1/A. He also issued jamabandi Ext. PW-1/B. 7. PW-2 Const. Latif Mohammad deposed that accused made disclosure statement under Section 27 of the Indian Evidence Act to the effect that he had concealed the sweater and could get it recovered. The disclosure statement is Ext. PW-2/A. He appended signatures on Ext. PW-2/A. 8. PW-3 I.O. Anirudh deposed that on 14.2.2009, the accused has got recovered sweater which was concealed in bushes. It was taken into possession vide seizure memo Ext. PW-3/A. The accused also took the police party at Khileu morh where he had committed the murder. He disclosed to the police party that on 11.2.2009 at about 9:30 PM he had committed murder of Piar Singh, dragged the dead body and thrown it in the field. Memo to this effect Ext. PW-3/C was also prepared. The sweater is Ext. P-2. 9. PW-4 Veena Devi is a material witness. He disclosed to the police party that on 11.2.2009 at about 9:30 PM he had committed murder of Piar Singh, dragged the dead body and thrown it in the field. Memo to this effect Ext. PW-3/C was also prepared. The sweater is Ext. P-2. 9. PW-4 Veena Devi is a material witness. She deposed that on 11.2.2009, her husband had left for duty. She had also left and children remained at house with mother-in-law. She came back on 12.2.2009 at about 9:00 AM. Malti Devi came to her house and told that her husband has been murdered and dead body was lying down the road at a place known as Tridu. She alongwith the other villagers went to the spot and noticed that the dead body was lying down the road. His sweater, jacket and stone were lying on the road. Blood stains were present on the jacket. There were injury marks on the ear, nose and face. Blood was oozing from the nose. About 15 days prior to the death, her husband used to tell her that someone was giving threats to kill him but he did not disclose the name of the person who had been giving threats to him. The villagers present on the spot told her that Ramesh alias Bhoori Singh has committed murder as the accused had disclosed about the murder to vegetable vendor at Balloo and the vender had telephonically informed the father of the accused. The police visited the spot and recorded her statement under Section 154 Cr.P.C. vide Ext. PW-4/A. The police took into possession jacket, sweater and shoe of black colour. She identified the clothes. She admitted in her cross-examination that she has not lodged any report to the police that her husband told her that someone was giving threats to him. Her husband had been taking liquor occasionally in small quantity. The distance of her house from the duty place of her husband is about 3 kms. She stated to the police that vegetable vendor at Balloo had telephonically informed his father that the accused had committed the murder. She was confronted with statement Ext. PW-4/A, where it is not so recorded. 10. The distance of her house from the duty place of her husband is about 3 kms. She stated to the police that vegetable vendor at Balloo had telephonically informed his father that the accused had committed the murder. She was confronted with statement Ext. PW-4/A, where it is not so recorded. 10. PW-5 Surinder Singh deposed that on 12.2.2009, at about 8-8:30 AM after coming to know from the local people that dead body was lying near Khileu morh, he went to the spot and noticed that a dead body was lying in the field. From the spot itself, he informed the police. 11. PW-6 Narayan Parshad, deposed that on 12.2.2009 at about 12:00 noon, he received a phone call on his mobile from his son. His son stated that Bhooru had disclosed to him that he had committed the murder of Piar Singh. He told him that Bhooru had visited his shop and his clothes were smeared with blood. He admitted before him to have committed the murder. His son also told him that he should give information to the police. He went to the spot and told the police about the phone call. SHO asked him the mobile number of his son and his son told the SHO that the accused had boarded the bus which was proceeding towards Sahoo. In his cross-examination, he deposed that he had given his son’s mobile number to the police while making statement. (Confronted with statement mark ‘N’ wherein mobile number is not recorded.) He stated in the statement recorded by the police that his son told him on phone that he should visit the spot and tell the name of accused to the police( confronted with statement mark N wherein it is not so recorded). The SHO asked the mobile number of his son as he wanted to talk with him (confronted with statement mark N wherein it is not so recorded). The accused worked at his son’s shop for about 15 days and also worked in their fields for 15-20 days. He had been paying daily wages to the accused. 12. PW-7 Ved Parkash, deposed that he received a phone call from his uncle Kalyan Singh that Piar Singh had died and his dead body was lying at Khileu morh. He reached the spot at about 9:30 AM. Police had also reached. He had been paying daily wages to the accused. 12. PW-7 Ved Parkash, deposed that he received a phone call from his uncle Kalyan Singh that Piar Singh had died and his dead body was lying at Khileu morh. He reached the spot at about 9:30 AM. Police had also reached. He noticed that lot of blood was lying on the road. The police started the investigation. One jacket, one sweater, one button, one stone of weight about 500-700 gms. smeared with blood stains and one shoe were taken into possession by the police. On 13.2.2009, the shirt of the accused was recovered vide recovery memo Ext. PW-7/D. Pant of accused was also taken into possession vide seizure memo Ext. PW-7/E. 13. PW-8 Bhoginder Kumar has taken photographs of the spot vide memo Ext. PB/1 to PB/11. 14. PW-9 Deepak Handa, testified that on 12.2.2009 at about 12 noon accused came to his shop at Ballu and stayed there for some time. He thereafter told him that “he had committed murder of Piaro”. He noticed blood stains on his sweater and pant. Thereafter, he made telephone call to his father and informed him about the incident. In his cross-examination, he deposed that he had consumed liquor when the accused came to his shop. He also admitted that accused was working at his shop earlier. Nobody was present at that time when accused admitted before him that he had committed murder of Piar Singh. He also admitted that Baloo is a busy place. He also admitted that there are several shops at Baloo and adjoining his shop there are many shops. Shop keepers were present in their shops when the accused has told him that he had committed the murder. He did not inform the police when accused allegedly admitted before him to have committed the murder. 15. PW-10 Bhagat Ram, deposed that he was running teacum- vegetable shop at Mani. One country liquor shop is situated adjoining to his shop. On 11.2.2009 at about 6-6:30 PM, accused along with Piar Singh came to his shop. He prepared egg bhujia for them. They brought liquor bottle from the shop and consumed liquor outside his shop. They left his shop at about 8-8:30 PM. In his cross-examination, he admitted that the accused and Piar Singh had left his shop after consuming liquor and proceeded to their houses. 16. He prepared egg bhujia for them. They brought liquor bottle from the shop and consumed liquor outside his shop. They left his shop at about 8-8:30 PM. In his cross-examination, he admitted that the accused and Piar Singh had left his shop after consuming liquor and proceeded to their houses. 16. PW-11 Yog Raj, deposed that on 12.2.2009, accused came to his house at 1:30 PM. He took lunch with them at his house. He was wearing a sweater smeared with blood stains. He asked him about the blood stains on his sweater. Accused replied that a dog had bitten him. He asked the accused as to how the blood was oozing from leg could come on to his sweater. The accused replied that while attended to the injury, blood has trickled on his sweater. The accused has got the sweater recovered, vide recovery memo Ext. PW-3/A. In his cross-examination, he has deposed that blood was oozing from one of his wound. He categorically stated in his cross-examination that sweater Ext. P-1 was already with the police. The accused has not disclosed to the police in his presence that he could get the sweater recovered. 17. PW-12 Malti Devi, deposed that she noticed the dead body of Piar Singh near Mani. Piar Singh’s wife had gone to her parents’ house. She informed about the death of Piar Singh to his wife when she was at her house. 18. PW-13 Kailash Chand, deposed that S.I. Diwan Chand deposited with him three parcels pertaining to this case on 12.2.2009. The parcels contained clothes of the deceased, blood stained stone and leaves lifted from the spot. On 13.2.2009, S.I. Diwan Chand deposited with him one parcel and he made entry in the Malkhana register. On the same date, Constable Parbhat Singh deposited with him blood sample of the accused sealed with one seal of R.H. Chamba. One parcel containing viscera was also deposited with him. One parcel containing shirt of the accused was also deposited with him. He made entries in the Malhkana register. On 14.2.2009 one parcel containing sweater of the accused was deposited with him. He made entry regarding the same in the Malkhana register. All the parcels along with the sample seals, seizure memos and photocopies of FIR and PMR were sent to FSL, Junga through Constable Rakesh Kumar vide RC No. 34/09. He made entries in the Malhkana register. On 14.2.2009 one parcel containing sweater of the accused was deposited with him. He made entry regarding the same in the Malkhana register. All the parcels along with the sample seals, seizure memos and photocopies of FIR and PMR were sent to FSL, Junga through Constable Rakesh Kumar vide RC No. 34/09. He deposited the case property in FSL Junga and obtained receipts from there. The same were handed over to him. 19. PW-14 Const. Parbhat Chand, deposed that the post mortem on the dead body was conducted by Dr. Vishal Mahajan. He handed over to him one parcel containing viscera alongwith envelope addressed to FSL, Junga. He also handed over to him the blood sample of the accused. He handed over the report of post mortem to S.I. Diwan Chand and deposited the parcels with MHC Kailash Chand along with the sample seals. The samples were in safe custody. In his cross-examination, he deposed that accused has got recovered the sweater from the bushes on 14.2.2009. However, he did not remember the name of this place. He has not put any signatures on the memo vide which alleged sweater was taken into possession by the police. 20. PW-15 Dr. Vishal Mohan, conducted post mortem examination on the dead body. He issued post mortem report Ext. PW-15/B. According to his opinion, the deceased died due to head injury leading to cardio vascular collapse. 21. PW-16 ASI Dharam Pal, is a formal witness. 22. PW-17 S.I. Diwan Chand, testified that he received a telephonic information that the dead body of Piar Singh was lying at Khaleu morh, Mani. He reached the spot. He inspected the spot. He recorded statement of Veena Devi under Section 154 Cr.P.C. Ext. PW-4/A on the basis of which FIR Ext. PW-16/A was recorded. He prepared the site plan. He also took into possession, Jacket, Sweater, shoe, stone and button. The dead body was sent to the hospital for post mortem examination. On 13.2.2009, blood stained clothes of the accused were parceled and sealed. He also obtained jamabandi of the place. In his cross-examination, he admitted that he did not remember that when the accused was arrested by him. Accused was bitten by dog on his leg. No other person, except the wife of the accused, had stated that there was enmity between the deceased and the accused. He also obtained jamabandi of the place. In his cross-examination, he admitted that he did not remember that when the accused was arrested by him. Accused was bitten by dog on his leg. No other person, except the wife of the accused, had stated that there was enmity between the deceased and the accused. Volunteered that, he has not made any inquiry from any person regarding the enmity of the accused with the deceased. 23. Statements of PW-18 Inspector R.P. Jaswal, PW-19 Const. Deepak, and PW-20 Const. Rakesh Kumar are formal in nature. 24. There is no eye-witness in the instant case. The case is based entirely on the circumstantial evidence. The learned trial Court has relied upon six circumstances to convict the accused. 25. According to circumstance No. 1, relied upon by the learned trial Court, the deceased was getting threats. PW-4 Veena Devi in her statement has deposed that about 15 days prior to the death of her husband, her husband used to tell her that someone was advancing threats to kill him. But, he did not narrate as to who had been giving threats to him. In case her husband had been given threats by somebody, he was bound to disclose his name at least to his wife in confidence. She also admitted in her cross-examination that she has not lodged any report with the police that her husband told her that someone was advancing threats to him. The trial Court has wrongly relied upon this circumstance. 26. The next circumstance relied upon by the learned trial Court is that the accused was last seen with the deceased. The prosecution has relied upon the statement of PW-10 Bhagat Ram to this effect. PW-10 Bhagat Ram deposed that on 11.2.2009 at about 6-6:30 PM, accused had come to his shop. Piar Singh was also accompanying him. He prepared egg bhujia for them. They brought liquor bottle from the shop and consumed liquor outside his shop. They left his shop at about 8-8:30 PM. According to PW- 9 Deepak Handa also stated that when accused came to this shop, he had consumed liquor. The viscera of deceased was sent for chemical examination. We have gone through Ext. PX, the report of the FSL. According to the final result as per Ext. PX, no poison/alcohol could be detected in these exhibits. According to PW- 9 Deepak Handa also stated that when accused came to this shop, he had consumed liquor. The viscera of deceased was sent for chemical examination. We have gone through Ext. PX, the report of the FSL. According to the final result as per Ext. PX, no poison/alcohol could be detected in these exhibits. According to PW-10 Bhagat Ram, the deceased and accused had taken liquor in front of his shop. However, this version is belied as per the chemical examination report Ext. PX. The circumstance of last seen together has not been proved. 27. The 3rd circumstance relied upon by the learned trial Court is that blood stains were found on the sweater of the accused. PW-11 Yog Raj, in his cross-examination, has admitted that sweater Ext. P-1 was already with the police. It casts doubt on the prosecution case, the manner in which sweater Ext. P-1 was recovered. PW-11 Yog Raj has stated in his cross-examination that he has seen injuries on the leg of the accused. The accused had told him that these were caused by dog bite. The blood was oozing out from one of the wound. PW-17 S.I. Diwan Chand, has investigated the matter. In his cross-examination, he has admitted that when the accused was arrested by him, at that time, he noticed that dog has bitten on his leg. Since the accused was bitten by dog, the possibility of his clothes i.e. sweater etc. being smeared with his own blood, can be ruled out. 28. The learned trial Court has also relied upon the extrajudicial confession, allegedly made by the accused before PW-9 Deepak Handa. According to PW-9 Deepak Handa, the accused came to his shop at Baloo and told him that he had committed the murder of Piar Singh. He has noticed blood on his sweater and pant. In his cross-examination, he has admitted that no one was present at the time when the accused admitted before him to have committed the murder of Piar Singh. There are several shops at Baloo. The shop keepers were present at their shops. He did not inform the police that the accused has admitted before him to have committed the murder. The first reaction of PW-9 Deepak Handa should have been to inform the police. He instead of informing the police has informed PW-6 Narayan Parshad. 29. There are several shops at Baloo. The shop keepers were present at their shops. He did not inform the police that the accused has admitted before him to have committed the murder. The first reaction of PW-9 Deepak Handa should have been to inform the police. He instead of informing the police has informed PW-6 Narayan Parshad. 29. Now, we will advert to the statement of Narayan Parshad. PW-6 Narayan Parshad, stated that his son told him that Bhooru has disclosed to him that he had committed the murder of Piar Singh. He also told him that Bhooru had visited his shop and his clothes were smeared with blood. His son requested him to inform the police. He went to the spot and told the police that he has received call from his son. SHO told him that he want to talk to his son. Accordingly, he gave SHO the mobile number of his son. SHO made call to his son from his mobile and his son told the SHO that accused had boarded the bus proceeding towards Sahoo. He was confronted with his statement made under Section 161 Cr.P.C, where it is not so recorded. According to him, his son had told him to visit the spot and disclosed the name of the accused to the police. He was confronted with statement mark ‘N’ where it is not so recorded. The extra-judicial confession according to PW-9 Deepak Handa has been made by the accused before him on 12.2.2009 at 12:00 noon. Statement of PW-4 Veena Devi was recorded under Section 154 Cr.P.C. vide Ext. PW-4/A on 12.2.2009 at 3:10 PM. FIR Ext. PW-16/A was recorded at 5:45 hours. The FIR has been recorded in this case after the alleged extra-judicial confession made by the accused before PW-9 Deepak Handa. However, there is no reference of this extra-judicial confession made before PW-9 Deepak Handa in Ext. PW-4/A, on the basis of which FIR Ext. PW-16/A was recorded. Accordingly, this circumstance is also not duly proved by the prosecution. 30. The last circumstance relied upon by the learned trial Court is the recovery of the stone which was proved as per the version of PW-7 Ved Parkash. It contained human blood, as per chemical examiner report Ext. PY. 31. We have discussed all the circumstances relied upon by the learned trial Court, as stated hereinabove. 30. The last circumstance relied upon by the learned trial Court is the recovery of the stone which was proved as per the version of PW-7 Ved Parkash. It contained human blood, as per chemical examiner report Ext. PY. 31. We have discussed all the circumstances relied upon by the learned trial Court, as stated hereinabove. The prosecution has failed to link all the circumstances. It is essential to complete the entire chain of circumstances in order to convict the accused and all the circumstances must point out towards the guilt of the accused. We have discarded the theories of threats being advanced to the deceased. The last seen theory has also not been proved. The extra-judicial confession cannot be believed since the same does not find mention in FIR Ext. PW-16/B and also the recovery of the stone with blood stains. In view of this it cannot be stated that it is the accused, who has killed the deceased with stone Ext. P-5. 32. Their Lordships’ of the Hon’ble Supreme Court in the case of State of M.P. versus Nisar, reported in (2007) 5 SCC 658 , have held that when FIR was lodged much after the alleged extra-judicial confession, alleged to be made by the accused, no reference was made in the FIR, the acquittal of the accused under Section 302 IPC was appropriate. Their Lordships’ have held as under: “9. It is to be noted that the first information report was lodged much after the so-called extra-judicial confession was made. Evidence on record shows that the body of Kandhai was lying exposed in the jungle and his lathi and khomari were lying close by. In the FIR (Ext. P-1), there was no reference to the so-called confession by the accused. Informant Bhaiyalal’s explanation that he may have forgotten to disclose this fact to the police while lodging the FIR, is totally improbable and wholly unacceptable. If in fact there was any confession as claimed that would have been the first thing to be mentioned and not that there was suspicion of the accused being the assailant. Raghvendra Singh Baghel, PW 12 had admitted that the body of Chherkoo was lying about 100 paces from the dead body of Kandhai. The High Court rightly noticed that no disclosure was necessary for locating the dead body. Raghvendra Singh Baghel, PW 12 had admitted that the body of Chherkoo was lying about 100 paces from the dead body of Kandhai. The High Court rightly noticed that no disclosure was necessary for locating the dead body. The axe and the khomari were also lying close by and even a casual search would have revealed the dead bodies and the articles. The chemical examiner in his report Ext. P-37 had found that the axe was stained with human blood. Curiously, the blood group was not ascertained. It was, therefore, not possible to conclude that the axe was used for killing the two deceased persons.” 33. The prosecution has failed to prove the case against the accused beyond reasonable doubt. There are missing links in the prosecution version which have not been plugged. 34. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 10.6.2010 and consequent order dated 11.6.2010, rendered by the learned Addl. Sessions Judge, Fast Track Court, Chamba, in Sessions trial No. 20 of 2009, is set aside. The accused is acquitted of the charges framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 35. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.