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Himachal Pradesh High Court · body

2014 DIGILAW 946 (HP)

Kiran Himral v. State of Himachal Pradesh

2014-07-22

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Per Justice Rajiv Sharma, Judge. Since common questions of law and facts are involved in both the appeals, the same were taken up together and are being disposed of by a common judgment. 2. Both these appeals are instituted against the judgment dated 10.9.2012 rendered by the Additional Sessions Judge, Fast Track Court, Shimla in Sessions Trial No. 2-S/7 of 2011, whereby the appellants-accused (hereinafter referred to as the ‘accused’ for convenience sake), who were charged with and tried for offences punishable under sections 120-B and 302 of the Indian Penal Code, have been convicted and sentenced to undergo life imprisonment for the commission of offence under section 302 read with section 120-B of the Indian Penal Code. They were ordered not to be released from the prison till their death. 3. Case of the prosecution, in a nutshell, is that on the intervening night of 1/2.7.2010 at 1.30 A.M., Head Constable Manoj Kumar informed Station House Officer, Police Station, Shimla (West) that they admitted one injured person in I.G.M.C. Shimla. His condition was serious and he was suspecting some mala fide. When Station House Officer alongwith other police officials reached at I.G.M.C., he came to know that injured Nikka Ram has succumbed to his injuries. Station House Officer clicked photographs of dead body and conducted personal search of the deceased. The post-mortem of dead body was conducted. Statement of deceased’s brother was recorded under section 154 of the Code of Criminal procedure. He disclosed to the police that his brother Nikka Ram was working as Conductor with H.R.T.C. Shimla. During those days he was working as a Booking Clerk. The deceased was residing with his wife in a rented accommodation. He received a call from his brother at about 12.30 A.M., who was working in a Bank at Suni, that Nikka Ram has received injuries near 103 Tunnel. He was admitted in I.G.M.C. Shimla. He also disclosed to the police that some unknown person attacked him. However, his brother has no enmity with anyone. On the basis of statement of deceased’s brother, FIR was registered. Police visited the spot and prepared site map and lifted the blood. Wife of the deceased was interrogated on 3.7.2010. Police came to know about her illicit relationship with one Sandeep, resident of Jubbar Hatti. Police recovered two mobile phones at the instance of accused Kiran. On the basis of statement of deceased’s brother, FIR was registered. Police visited the spot and prepared site map and lifted the blood. Wife of the deceased was interrogated on 3.7.2010. Police came to know about her illicit relationship with one Sandeep, resident of Jubbar Hatti. Police recovered two mobile phones at the instance of accused Kiran. Accused Kiran talked with Sandeep just before the incident. Police also recovered iron rod at the instance of accused Sandeep. Police also came to know that accused Sandeep came to Shimla on the motorcycle of Pushpinder driven by Raj Kumar. Police also recorded statements of Pushpinder and Raj Kumar under section 164 of the Code of Criminal Procedure. Investigation was completed and the challan was put up in the Court after completing all the codal formalities. 4. Prosecution examined as many as 38 witnesses in all to prove its case against the accused. Statements of accused were also recorded under section 313 of the Code of Criminal Procedure. They claimed innocence and according to them, they have been falsely implicated in the case. Accused have also produced DW-1 Sunil Thakur. 5. Mr. Ajay Kochar and Mr. Deva Nand Sharma have vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the trial court. 7. We have heard the learned counsel for the parties and have perused the record carefully. 8. PW-1 Diwan Chand has deposed that deceased Nikka Ram was his younger brother. He received a call from his wife at Suni on 1.7.2010 at about 12.00 midnight. His wife was residing at Tutikandi, Shimla. His wife informed him that she has received a call from the wife of Nikka Ram, Kiran that Nikka Ram has been assaulted by someone and he has been taken to hospital. He rang up his elder brother Janki Nand, who was residing at Shimla and worked with I.T.B.P., Tara Devi. His brother rang up and told that condition of Nikka Ram was critical and he was under treatment. 9. PW-2 Rakesh Sharma has deposed that last year, they had rented out two sets to the tenants. One set was in possession of Nikka Ram. The other was with Pritam Sharma. On 1.7.2010, at about 11.00 P.M., he was sleeping. His brother rang up and told that condition of Nikka Ram was critical and he was under treatment. 9. PW-2 Rakesh Sharma has deposed that last year, they had rented out two sets to the tenants. One set was in possession of Nikka Ram. The other was with Pritam Sharma. On 1.7.2010, at about 11.00 P.M., he was sleeping. His mother came and told that Kiran wife of Nikka Ram was weeping since Nikka Ram has not reached house from his work place. He came out and found that Kiran was weeping. Kiran told him that her husband has not come. Kiran told him that he should go towards 103 tunnel in search of Nikka Ram. He was having a vehicle and told Kiran that they should go in the vehicle. But she told that they should go in search of Nikka Ram on foot. They started coming towards 103 tunnel via New Shimla bye pass road. When they reached near Tutikandi School, accused Kiran was ahead of him. She was talking to some one. He asked her to whom she was talking with. She told that she was talking with her brother. A little bit ahead of that place, three men met them. They asked why Kiran was weeping. He told them that her husband has not returned from his work place, on which, those three men told them that one man was lying on the road a little bit ahead. Accused Kiran Himral started weeping. On reaching the place, they found that Nikka Ram was lying with his head downward parallel to the railings installed on the road. He was bleeding from the head. He took mobile from Kiran and informed his mother of the incident. They were on the spot, when the police arrived. In his cross-examination, he has deposed that Kiran was weeping but she was not frightened. Police called him from his house in the early morning. He did not know those three men, who met them on the road. He did not know whether they were local of Tutikandi area or outsiders. He did not disclose to the police when they were preparing site plan about the place where those three men met them. He did not know the exact/proximate time he spent in I.G.M.C. during the night/early morning. He did not know whether they were local of Tutikandi area or outsiders. He did not disclose to the police when they were preparing site plan about the place where those three men met them. He did not know the exact/proximate time he spent in I.G.M.C. during the night/early morning. He told the police during investigation that when three men told them that one man was lying on upper side of the road, Kiran started weeping loudly. He was confronted with his statement recorded under section 161 of the Code of Criminal Procedure mark ‘R”, where it was not so recorded. Police did not inquire from them about the identity or the features of those three men, who met them. 10. PW-3 Mrs. Anita Sharma has testified that they had rented out two sets of their building to the tenants. In one set, Nikka Ram and Kiran Himral were residing for the last ten months. On 1.7.2010 they were sleeping when Kiran made them to wake up by giving door bell. She came out and found Kiran weeping. She told that her husband has not come back from work place. In their neighbourhood, other employees of H.R.T.C. were also staying. She accompanied Kiran to those houses. On giving door bell, Leela Thakur came out. Kiran told her that her husband has not returned from work place. Her husband Ramanand Thakur was also conductor with H.R.T.C. He consoled Kiran that her husband would return and she should not weep. Thereafter, Ramanand made inquiry on phone from H.R.T.C. office. He came to know that Nikka Ram has already left his office by bus at 10.30 P.M. Both of them left the house of Ramanand. Kiran told her that she should wake up her son Rakesh Sharma so that he could accompany her in search of her husband. Accordingly, she woke up her son Rakesh and asked him to go with Kiran in search of her husband. Her son told Kiran that they should go in a vehicle, but Kiran refused and told that they would go on foot. After about 15-20 minutes, she received a call from Kiran Himral. She told her that she should also come to that place since her husband has been assaulted. When she was returning to Tutikandi from I.G.M.C., Kiran gave her keys of her set. On 11.7.2010, police came with Kiran. After about 15-20 minutes, she received a call from Kiran Himral. She told her that she should also come to that place since her husband has been assaulted. When she was returning to Tutikandi from I.G.M.C., Kiran gave her keys of her set. On 11.7.2010, police came with Kiran. Since, keys of her set were with her, she was called to give the keys. Police and Kiran went inside the set. During proceedings, a mobile with three SIM cards was found in the drawer of Mandir, whereas one other SIM was also found from the room which was with the entrance of the set. Memo Ex.PW-3/A to this effect was prepared. It was opened in the court. It was just pinned up with pins. One gray coloured Nokia mobile handset was shown to the witness. From this parcel, another folded white paper was taken out. According to the witness, mobile set Ex.P-1 was the same which was taken by the police. SIM cards Ex.P-2 to P-5 were taken by her in her hand. She was not certain whether these were the same or not. In her crossexamination, she has deposed that when Kiran came to her, she did not request or ask to go in search of her husband and merely requested to inquire about it in the house of Ramanand. Kiran at that time told her that 2-3 days before, some men had chased her husband near Tutikandi and for this reason she was frightened. She did not remember whether she had told or not the police during investigation that on the request of Kiran she should wake up her son so that he could accompany her in search of her husband and further that her son had told Kiran that they should go in a vehicle and she refused and asked to go on foot. She was confronted with her statement recorded under section 161 of the Code of Criminal Procedure, where it was not so recorded. She did not know whether prior to this, husband of Kiran was ever late while coming to his house from work place. She could not say whether Ex.P-1 was the same set or not. The fourth SIM card was taken by the police from T.V. trolley, which was kept in a room with the main door. 11. PW-4 Mrs. She did not know whether prior to this, husband of Kiran was ever late while coming to his house from work place. She could not say whether Ex.P-1 was the same set or not. The fourth SIM card was taken by the police from T.V. trolley, which was kept in a room with the main door. 11. PW-4 Mrs. Lata Himral has deposed that she received a phone call from the police at about 8.00 P.M. and called her to the house of Kiran Himral in village Banuna. She went there. Balbir was also there. Accused Kiran was ahead of them. Kiran led all of them to bath room of the house. Accused Kiran took out a mobile of Micro Max brand, which was concealed behind the Kari, wooden fixing, of both room ceiling. Mobile was taken into possession by the police vide memo Ex.PW-4/A. The mobile set was neither sealed nor wrapped when produced before the Court. In her cross-examination, she has deposed that after the recovery of mobile Ex.P-6, it was wrapped by the police, but she did not know whether it was wrapped in a paper or cloth. 12. PW-5 Daljit Singh has deposed that since he had lost his identity card, he had gone to Police Station, Sadar, Shimla on 6.7.2010. The police officials were asking accused Kiran about the mobile. Accused Kiran told the police that the mobile was in her house, which was towards Suni side. She further told that she alone was knowing about the mobile. Memo Ex.PW-5/A to this effect was prepared. In his cross-examination, he has deposed that police did not record his rapat regarding loss of identity card on the ground that they had heavy rush of work. Accused Kiran was sitting on the bench outside the room of Munshi and one civilian was also there. 13. PW-6 Raj Kumar has deposed that on 6.7.2010, Station House Officer, Shankutla Sharma, summoned him to Police Station, Sadar regarding the incident of 30.6.2010. Accused Kiran gave statement Ex.PW-5/A. In his cross-examination, he has deposed that he reached Police Station, Sadar on 6.7.2010 at about 3.30/4.00 P.M. 14. PW-7 Meena Sharma has deposed that on 8.7.2010 at about 11.00 A.M., she and Up-Pradhan of their Panchayat were in the Panchayat Ghar when she received a call from ASI Anil. The police came to Panchayat Ghar and took them in their vehicle. PW-7 Meena Sharma has deposed that on 8.7.2010 at about 11.00 A.M., she and Up-Pradhan of their Panchayat were in the Panchayat Ghar when she received a call from ASI Anil. The police came to Panchayat Ghar and took them in their vehicle. They got down from the vehicle at next station, Halti. Accused Sandeep was also sitting in the vehicle. They went to the house of accused and there police asked him where he has thrown the SIM. Accused searched and got recovered a SIM from the bushes below his house. The SIM probably was of Aircel. A memo Ex.PW-7/A was also prepared. It was signed by her as well as by Up-Pradhan and accused Sandeep. Accused led them to the upper storey of his house. The door of the room was opened by his mother. In the room, 3-4 pairs of clothes were put on a string and from there accused handed over his trousers, shirt and sweater to the police. The clothes were also put into white coloured cloth and sealed by the police. Parcel Ex.7, trousers Ex.P-8, shirt Ex.P-9 and sweater Ex.P-10 were taken into possession vide memo Ex.PW-7/B. 15. PW-8 Ajay Kashyap has testified that on 10.7.2010, Shimla Police came to their hotel and inspected the guest register. On that day, they took photocopy of the register. On 27.7.2010, police again came and took guest registers of both the hotels into possession. Memo Ex.PW-8/A was prepared. He identified registers Ex.P-16 and P-17. As per entry No.7191 dated 20.6.2010, Sandeep Kumar and Kiran Kashyap had stayed in the hotel. This entry was signed by the visitor and it also mentioned the mobile number of the visitor. In Ex.P-17, against Sr. No.5698, visitors Sandeep Kashyap and Kiran Kashyap stayed on 11.6.2010. He has admitted in his cross-examination that in entry No.7191 Ex.P-16, the mobile number and name of Kiran Kashyap is in different ink than the other contents. He could not say that 1 (one) has been converted into 2 (two). There was no certificate on Ex.P-16. 16. PW-9 Raj Kumar has deposed that on 1.7.2010, he received a call from Pushpinder. He told him that Sandeep would not be in a position to take bus for the village. Therefore, he should go to 103 tunnel Shimla to bring Sandeep to the village. He received call from Pushpinder on his cell phone. 16. PW-9 Raj Kumar has deposed that on 1.7.2010, he received a call from Pushpinder. He told him that Sandeep would not be in a position to take bus for the village. Therefore, he should go to 103 tunnel Shimla to bring Sandeep to the village. He received call from Pushpinder on his cell phone. His cell phone No. was 94552-61372. After about 15 minutes, he received a call from Sandeep accused, who inquired from him whether he was coming to take him to the village. He asked Sandeep that has he talked to Pushpinder regarding motorcycle. Sandeep told him that he has already talked to Pushpinder and he has directed him to get petrol filled in his motorcycle worth ` 150/-. At 8.30 P.M., he was in his house, when he again received a call on his mobile from Sandeep and he told him that he should reach on the motorcycle at 103 tunnel to carry him. He further directed him that he should move out from his house at 9.00 P.M. He left his house at 9.00 P.M. and came to 103 tunnel. Before his arrival at 103 tunnel, Sandeep was already there. He reached at 103 tunnel at about 9.30 P.M. Sandeep boarded the motorcycle and told him that they should go to a petrol pump located towards Lakkar Bazar just ahead of victory tunnel. Sandeep filled petrol worth ` 60/- only. He asked Sandeep why he has filled petrol worth ` 60/- only in the motorcycle. He told him that he would pay rest of the amount to Pushpinder. We came on the motorcycle and when they reached at 103 tunnel, he started going towards Jubbar Hatti but at that time, Sandeep asked him to stop and further told that he has to meet some person at local bus stand, Shimla since he had to take some money from him. They stopped there for about 10-15 minutes. They again came towards 103 tunnel and there Sandeep again asked him to stop. Thereafter, they started going towards main road, but Sandeep asked him to go on the link road leading towards Tutikandi. He asked Sandeep which was that road and he told that this road connects Shimla bye-pass and then leads towards Tara Devi and from there they will go to their house. Thereafter, they started going towards main road, but Sandeep asked him to go on the link road leading towards Tutikandi. He asked Sandeep which was that road and he told that this road connects Shimla bye-pass and then leads towards Tara Devi and from there they will go to their house. After covering some distance on the link road, Sandeep asked him to stop and further started that he wanted to urinate. Sandeep boarded off from the motorcycle. After about two minutes, Sandeep came back and again boarded on the motorcycle. He asked him what he has grown in his fields those days. He told that he has grown Shimla Mirch and Tomato. A person was going ahead of their motorcycle. Sandeep told him to stop the motorcycle as soon as it reached near that person. When they were about to reach just near that person and he was about to apply the brakes, Sandeep took out something and hit that person on the back of his head. He again boarded off from the motorcycle. The motorcycle got imbalanced and stopped about 5-6 paces ahead. He saw that Sandeep was hitting that man with something/object. He got tense. Sandeep came and boarded on the motorcycle and asked him to proceed. He asked Sandeep what he has done. He told that he has nothing to do with that and further directed not to tell anything. They came to I.S.B.T. which was under construction. He threw that object down hill in the bushes. Sandeep was doing something with his mobile, but he could not hear since he was wearing helmet. He parked the motorcycle in the house of Pushpinder. Pushipinder rang up him and asked how much petrol was filled in the motorcycle and he apprised him accordingly. Pushipinder told him that he would ask Sandeep on next day about it. He further told him to get ready for Chandigarh on next morning. Sandeep rang up him and told that he should not tell anything about the incident to anyone. On 7.7.2010, he was called to Police Station (West), Shimla. On 16.7.2010, he was taken to the Court of learned Judicial Magistrate, Shimla by the Police of Police Station, Sadar. He gave his statement before the learned Judicial Magistrate. He could not see with which object Sandeep had hit the man, who was going ahead of their motorcycle. He was declared hostile. On 16.7.2010, he was taken to the Court of learned Judicial Magistrate, Shimla by the Police of Police Station, Sadar. He gave his statement before the learned Judicial Magistrate. He could not see with which object Sandeep had hit the man, who was going ahead of their motorcycle. He was declared hostile. Statement made under section 164 of the Code of Criminal Procedure was opened before the Court. He was cross-examined by both the defence counsel appearing on behalf of the accused. In his cross-examination conducted on behalf of accused No.1, he has deposed that he did not tell Pushpinder or the police about the incident. He was frightened. His family members, including, grand mother, parents and uncle were present on that day. On 2.7.2010, he and Pushpinder had gone to Chandigarh. Pushpinder also did not tell the police about the incident on 2.7.2010. When his statement was recorded by the Judicial Magistrate 1st Class, Shakuntla Sharma was present in the court room. However, she was sitting at the back of the room. When accused Sandeep met him at 103 tunnel, nothing was in his hands. Later on also, he did not see anything in his hands. He did not see any steel rod in the hands of Sandeep when he was hitting that man. Sandeep did not tell that he has to go to bus stand. He did not see blood spots on the clothes of Sandeep on that night. He had stated before the Judicial Magistrate 1st Class-III, Shimla that Sandeep had told him that the link road joins with Shimla bye-pass road and they would go to their village via Tara Devi. He was confronted with mark ‘PX’, where it was not so recorded. 17. PW-10 Pushpinder Swarup has deposed that on 1.7.2010 at about 6.30 P.M., he was in the fields when he received a call from Sandeep accused. He told him that he would not be in a position to take bus so he should come to take him on motorcycle. He told him that he was busy and he should talk to Raj Kumar. At about 9.00 P.M. Raj Kumar took motorcycle to take Sandeep. He heard the sound of parking of his motorcycle in the courtyard of his house at 11.30 P.M. He told Raj Kumar that he should be ready on next day for Chandigarh. He told him that he was busy and he should talk to Raj Kumar. At about 9.00 P.M. Raj Kumar took motorcycle to take Sandeep. He heard the sound of parking of his motorcycle in the courtyard of his house at 11.30 P.M. He told Raj Kumar that he should be ready on next day for Chandigarh. Next day, he and Raj Kumar went to Chandigarh. On the way, Raj Kumar was totally silent. He asked him about his silence. Raj Kumar told him that last night, Sandeep had a fight with a man. They came back to Shimla on the same day. Raj Kumar further told him that Sandeep had been saying that whatever amount that man had to pay to him, he would incur that on his treatment. He was also declared hostile since he has resiled from his statement recorded under section 164 of the Code of Criminal Procedure. On his cross-examination, he has deposed that on 7.7.2010, he alone was called by the police of Police Station (West), Shimla. In the evening, Raj Kumar was also called to Police Station (West). He was regularly called by the police from 7.7.2010 to 17.7.2010. When his statement was recorded under section 164 of the Code of Criminal Procedure, Inspector Shankutla was standing near the dais. Raj Kumar did not tell the place where the scuffle took place and with whom it took place or what kind of weapon used. He did not tell that Sandeep had hit with steel rod. He even did not tell that Sandeep had used some weapon. He has admitted that when he was interrogated by the police, he was tortured. Raj Kumar was also tortured. They were beaten with sticks and were also given slaps. 18. PW-11 Ms. Geeta has testified that accused Kiran Himral was her Bua. She remained with her at Tutikandi. She was doing M.B.A at that time from Kasumpati, Shimla. She stayed with accused Kiran Himral in her house known as Kashish Cottage, Tutikandi. Some time, accused No.2 also used to come there. He used to come when her husband was in the office. On her asking, accused Kiran told that Sandeep belongs to their village. She further told that he was a driver and he resided with his friends. She further told that Sandeep was related to her as Dewar. Some time, accused No.2 also used to come there. He used to come when her husband was in the office. On her asking, accused Kiran told that Sandeep belongs to their village. She further told that he was a driver and he resided with his friends. She further told that Sandeep was related to her as Dewar. One day, she asked husband of accused Kiran about Sandeep, but he told that he was not having any brother by the name of Sandeep. She did not remember the dates and months when she saw Sandeep in the house of Kiran. 19. PW-12 Amar Sharma was declared hostile. 20. PW-13 Dr. Yashpal Ranta has examined Nikka Ram on the basis of application Ex.PW-13/A. He noticed the following injuries on the body of Nikka Ram: 1. “Lacerated wound on the head 2 x 1 cm in size on frontal region. Bleeding and red coloured. 2. Lacerated wound on the head 3 x 1 cm in size on frontal region. Bleeding and red coloured. 3. Lacerated would on the right parietal region 3x1 cm in size red coloured. 4. Lacerated wound on the occipital region 3x1 cm in size red coloured. Bleeding present. 5. Lacerated wound on the left side occipital region 2 x 1 cm in size, red coloured. 6. Lacerated wound on the left parietal region 2 x 1 cm in size, red coloured. 7. Lacerated wound on the right frontal region 2 x 1 cm in size. 8. Bruise on the left lid, bleeding eye, 2x3 cm in size, red coloured.” He issued MLC Ex.PW-13/B. 21. PW-14 Jagjit Singh has proved report Ex.PW-14/A. According to report Ex.PW-14/A, the questioned entries contained in Ex.P-16, marked as Q-1 and in Ex.P-17, marked as Q-2, were compared with specimen signatures mark S-1 to mark S-10 and admitted signatures mark A-1, is stated to be of Sandeep alias Sonu son of Prem Chand. He was of the view that standard writings mark S-1 to mark S-10 and mark A-1 and the questioned signatures were similarly stamped and marked as Q-1 and mark Q-2 and the same have been written by one and the same person. In his crossexamination, he has deposed that reasons for opinion were not annexed with Ex.PW-14/A. These reasons were not mentioned in Ex.PW-14/A. According to him, these reasons were kept in office file. Dr. In his crossexamination, he has deposed that reasons for opinion were not annexed with Ex.PW-14/A. These reasons were not mentioned in Ex.PW-14/A. According to him, these reasons were kept in office file. Dr. Minakshi Mahajan did not give separate reasons while verifying her report. Police did not seek opinion whether mark Q-1 and mark Q-2 were written at the same time or at different times. 22. PW-15 Hari Krishan Himral has deposed that he came to Police Station, Sadar with his cousin Janki Dass. Pushpinder and Raj Kumar were already there in Police Station, Sadar, Shimla. At that time, Pushpinder gave his bike, documents and keys to the police. Memo was prepared to this effect. 23. PW-16 Manoj Kumar has deposed that on 1.7.2010, Tango one intimated to Police Station (West), Shimla that one person was lying in injured condition on 103 Tutikandi road. He alongwith HHC Ashok, HHC Anil and Constable Ravikant went to the spot in vehicle bearing registration No. HP-07A-0725. They found that injured was lying on the ground and a lady and one man were standing there. The lady told her name as Kiran. 24. PW-17 HHC Ashok Kumar has deposed that he alongwith HC Manoj Kumar, HHC Anil Kumar and Constable Ravikant went to the spot. The brother of deceased, Janki Nand, was also informed. He also came to I.G.M.C. Shimla. S.H.O. recorded statement of Janki Nand and gave it to him. He brought Rukka mark ‘F’ from the hospital to Police Station (West), on the basis of which FIR was registered. 25. Statement of PW-18 Constable Ravikant was deferred. 26. PW-19 Janki Nand has deposed that in July, 2010, he was posted at Tara Devi. On 1.7.2010 at about 12.30 A.M. Diwan Chand, his younger brother received telephonic information that Nikka Ram has received injuries near 103 tunnel, Shimla. He informed him telephonically from Suni about the incident. He went to I.G.M.C. His statement was recorded by the police. In his cross-examination, he has deposed that the police had caught Pushpinder, when he and Hari Krishan visited Police Station, Sadar, Shimla. 27. PW-20 Rajesh Sood has deposed that he was running a Karyana shop at Boileauganj. On 8.7.2010, he and Sandeep Jasal were called by the police to Police Station (West), Shimla. Accused Sandeep was also present there. Police told them that accused wanted to give a disclosure statement. 27. PW-20 Rajesh Sood has deposed that he was running a Karyana shop at Boileauganj. On 8.7.2010, he and Sandeep Jasal were called by the police to Police Station (West), Shimla. Accused Sandeep was also present there. Police told them that accused wanted to give a disclosure statement. The statement was recorded in writing. It was Ex.PW-20/A. He disclosed to the police that he could get the rod, mobile and his own clothes recovered from a place near P.W.D. Store Tutikandi. He did not go with the police for the recovery of articles. After 2-3 hours, police came with accused and they were having a rod as well as clothes. The same were taken into possession vide memo Ex.PW-20/B. He was declared hostile. In his cross-examination by the learned Public Prosecutor, he has deposed that he has signed Ex.PW- 20/A and Ex.PW-20/B only after they had been prepared. Accused signed Ex.PW-20/A and Ex.PW-20/B only when he had signed the same. Sealed cloth parcel sealed with five seals was produced. Seals were not legible. On the cloth strip “Mad Number” 79/10, case FIR No. 138/10 dated 2.7.2010 under section 302, 120 IPC of Police Station (West), District Shimla were written. The pipe looked like the same, which was brought by the police in Police Station (West), Shimla on that day. The cloth parcel was Ex.P-32, cloth strip was Ex.P-33 and iron pipe was Ex.P-34. The pipe was sealed in a cloth parcel and the cloth parcel was signed by him and Sandeep Jasal as well as accused Sandeep. He put his signatures on cloth strip Ex.P-33. In his cross-examination by the defence counsel, he has deposed that Ex.PW-20/A was prepared prior in time when accused had given statement. He did not go with the police to Tutikandi. Ex.P-34 was not iron rod, but G.I. pipe. Ex.P-34 was not got recovered in his presence. He signed Ex.PW-20/B in good faith. 28. PW-21 Sandeep Jasal has deposed that he and Rajesh Sood were called to Police Station (West), Shimla on 8.7.2010. Statement of accused was recorded in writing vide Ex.PW-20/A. After sometime, they were again called by the police to Police Station (West). They were told that they have recovered a rod. Memo Ex.PW-20/B was prepared. Clothes Ex.P-33 bears his signatures as well as signatures of Rajesh and accused. He was also declared hostile. Statement of accused was recorded in writing vide Ex.PW-20/A. After sometime, they were again called by the police to Police Station (West). They were told that they have recovered a rod. Memo Ex.PW-20/B was prepared. Clothes Ex.P-33 bears his signatures as well as signatures of Rajesh and accused. He was also declared hostile. In his cross-examination by the learned Public Prosecutor, he has denied the suggestion that after recorded statement Ex.PW-20/A, he and Rajesh had gone with the police and accused to Tutikandi. He has also denied that in their presence, accused led the police to a place near P.W.D. Store, Tutikandi and got recovered pipe Ex.P-34. He did not sign blank papers. He has also denied that when the police recovered pipe, it was having blood on one of its end. In his cross-examination, by the learned defence counsel, he has deposed that he did not know from where the police has brought the pipe. 29. PW-22 Visheshar Nath has deposed that on 11.7.2010, he had gone to Police Station, Sadar, Shimla. Abdul Rahim also came there. Accused Kiran Himral was in the lock up of Police Station, Sadar. She was taken out from the lock up in their presence. She told the police that one Nokia Mobile and four SIMs used in the commission of offence have been kept in the drawer of bed room in her rented accommodation at Tutikandi. In his cross-examination, he has deposed that he had gone to Police Station, Sadar since some objectionable SMS were coming in the mobile of his niece. The matter was investigated by the police. He had reported the matter in Police Station, Sadar regarding objectionable SMS about a month before. Name of his niece was Manju Bala. He did not remember the FIR number, which was lodged on his complaint. On 11.7.2010, he visited Police Station, Sadar between 12.00 noon and 1.00 P.M. Ex.PW-22/A was written in the room of Station House Officer. 30. PW-23 Constable Rohit has deposed that on 30.7.2010, MHC Krishan Bhandari gave him two sealed envelopes sealed with seal ‘B’. One envelope was stated to be containing a cheque whereas the other one was said to be containing two guest registers of Hotel vide RC No.12/10 for depositing the same with F.S.L. Junga. He deposited the envelopes with F.S.L. Junga on the same day. 31. One envelope was stated to be containing a cheque whereas the other one was said to be containing two guest registers of Hotel vide RC No.12/10 for depositing the same with F.S.L. Junga. He deposited the envelopes with F.S.L. Junga on the same day. 31. PW-24 Daljit Singh has deposed that he was running D.G.T. Photographic Studio in Summer Hill. ASI Anil Kumar came to his studio and got uploaded photographs on his computer from his digital camera. He developed two sets of photographs from the uploaded photographs and on the next day, he delivered the same to ASI Anil. He has proved Ex.PW-24/A-1 to Ex.PW-24/A- 17. 32. PW-25 Mohan Lal has deposed that police came to their office and opened locker during which currency worth ` 9,760/- was also taken out from the locker. The police wrapped the currency in a parcel and sealed with seal. Memo was prepared to this effect vide Ex.PW-25/A. 33. PW-26 Pankaj has deposed that he was posted as Judicial Magistrate 1st Class-III, Shimla since May, 2010. On 16.7.2010 on the application Ex.PW-26/A of the I.O., he recorded the statements of Raj Kumar son of Sahi Ram and Pushpinder son of Devi Dayal as per section 164 of the Code of Criminal Procedure. 34. Statement of PW-27 Navjit Sangwan was deferred. 35. PW-28 Khajana Ram has testified that on 1.7.2010 at 11.05 P.M., intimation was received from control room that an injured was lying on Tutikandi road near 103 tunnel. He sent police party to the spot. A rapat Ex.PW-28/A was made. At about 1.30 A.M., Head Constable Manoj telephonically informed him that injured has died in I.G.M.C. Shimla. He went to I.G.M.C. Shimla and took photographs of the body of deceased. He prepared inquest papers Ex.PW-28/B. He recorded statement of the brother of deceased, Janki Dass Ex.PW- 19/A under section 154 of the Code of Criminal Procedure. In his cross-examination, he has admitted that he did not conduct investigation on the point, who were those 2-3 persons, who had met Rakesh on that night. 36. PW-29 Mathura Dass has deposed that on 2.7.2010, Inspector Khajana Ram sent rukka Ex.PW-19/A through HHC Ashok Kumar for registration of FIR. He recorded FIR Ex.PW-29/A. 37. PW-30 Constable Sunny Chandel has deposed that he was working as night Munshi. 36. PW-29 Mathura Dass has deposed that on 2.7.2010, Inspector Khajana Ram sent rukka Ex.PW-19/A through HHC Ashok Kumar for registration of FIR. He recorded FIR Ex.PW-29/A. 37. PW-30 Constable Sunny Chandel has deposed that he was working as night Munshi. At about 11.05 P.M., he received intimation from Tango One that one person was lying in injured condition near 103 Tunnel, Tutikandi. He recorded Rapat in the Rojnamcha vide Ext. PW-28/A. He sent a police party headed by Head Constable Manoj Kumar to the spot. On 2.7.2010, at about 1.30 A.M., he received a call from Head Constable Manoj from I.G.M.C. Shimla that the condition of the injured was very critical. He told S.H.O. about it. Thereafter, S.H.O. and A.S.I. Kundan Lal went to I.G.M.C. 38. PW-32 Head Constable Krishan Singh has deposed that on 2.7.2010 Inspector Khazana Ram, the then S.H.O. deposited with him two parcels, one sealed with seal ‘A’ and another with seal ‘B’. One of the parcels was allegedly containing one umbrella, one tiffin box, some coins and another parcel was allegedly containing the blood samples lifted from the place of incident. On 3.7.2010, Constable Anil Kumar deposited one parcel containing clothes of dead person which were sealed with seal ‘DKG’. On 5.7.2010, A.S.I. Ashok Kumar deposited with him one parcel containing salary of the deceased and the same was sealed with seal ‘M’. On 7.7.2010, Constable Geeta Ram deposited with him one mobile phone of Micromax which was taken into possession from the accused. On 8.7.2010, S.I. Anil Kumar deposited with him one parcel sealed with seal ‘S’ stated to be containing the clothes of the accused and another cloth parcel stated to be containing iron rod, which was sealed with seal ‘O’. He also deposited parcel containing broken SIMs of Aircel. He also deposited another parcel containing a mobile of Nokia Company. On 13.7.2010, he sent all the articles excluding parcels containing SIMs, mobile and salary of the deceased to F.S.L. Junga, through Ravi Kant vide R.C. No. 110/10. The articles so deposited on the different dates were duly entered in the register. On 18.7.2010, A.S.I. Chander Shekhar deposited with him one parcel containing Mobile of Nokia alongwith four SIMs. He deposited the parcel in the Malkhana after making entry at Sr. No.87/10 in register No. 19. The articles so deposited on the different dates were duly entered in the register. On 18.7.2010, A.S.I. Chander Shekhar deposited with him one parcel containing Mobile of Nokia alongwith four SIMs. He deposited the parcel in the Malkhana after making entry at Sr. No.87/10 in register No. 19. On 27.7.2010, S.I. Anil Kumar deposited with him two envelopes, sealed with seal impression ‘D’ stated to be containing visitor’s registers of two Hotels. He deposited the parcel in the Malkhana after making entry at Sr. No. 90/10 in register No. 19. 39. PW-33 S.I. Anil Kumar has testified that he remained in-charge Police Post Summer Hill from April 2009 to December 2010. He arrested accused Sandeep from Jubbar Hatti on 6.7.2010. He obtained police remand on 7.7.2010. Accused made disclosure statement under Section 27 of the Indian Evidence Act in the presence of witnesses Rajesh and Sandeep, to the effect that he can get recovered weapon of offence, his own clothes and mobile phones. The accused took them to Tutikandi bye-pass near P.W.D. Store, from where they recovered the iron rod Ext. P-34. The iron rod was taken into possession vide Ext. PW-20/B in the presence of witnesses. Thereafter, they went to the house of accused Sandeep at Jubbar Hatti. The accused got effected the recovery of broken SIMs Ext. P-14 and Ext.P-15 of Aircel, which was taken into possession vide recovery memo Ext. PW-7/A. The accused handed over one Nokia Mobile Phone with battery Ext. P-12. It was sealed in a parcel Ext. P-11 and sealed with seal impression ‘N’. It was taken into possession vide recovery memo Ext. PW-7/C. He also obtained call details of the SIMs used by accused Sandeep from the Aircel and B.S.N.L. He took into possession visitor register Ext. P-16 and P-17. In his cross-examination he has admitted that no statement of any witness has been recorded regarding involvement of accused Sandeep in this case till 6.7.2010. He also admitted that there was no reference regarding rod or G.I. Pipe in Ext. PW-20/A. He has also admitted that there was no reference regarding SIMs in the disclosure statement which was recorded at the instance of accused Sandeep in the presence of Meena and Asha Thakur. He has also admitted that he called the witnesses only when accused told him that he can get the recovery of articles mentioned in Ext. PW-20/A effected. PW-20/A. He has also admitted that there was no reference regarding SIMs in the disclosure statement which was recorded at the instance of accused Sandeep in the presence of Meena and Asha Thakur. He has also admitted that he called the witnesses only when accused told him that he can get the recovery of articles mentioned in Ext. PW-20/A effected. He has admitted that witnesses Asha and Meena were known to him but he was not having their mobile phone numbers. He has also admitted that no identification of accused was conducted by associating the hotel employees. 40. PW-34 Dr. Peeyush Kapila has conducted the post mortem on the dead body. He has proved post mortem report Ext. PW-34/B. In his cross-examination, he has deposed that injuries mentioned in PMR were not possible with a single blow of Ext. P-34 or the like objects. 41. Statement of PW-35 A.S.I. Kundan Lal is formal in nature. 42. PW-36 R.A. Raj Shekhar has deposed that he received email from S.P. office Ext. PW-36/A on 29.9.2010 regarding call details of mobile phone numbers 94593- 48615 and 94185-01146. He supplied the call details to S.P. Shimla vide Ext. PW-36/B-1 to Ext. PW-36/B-8. In his cross-examination, he has admitted that all the details regarding the name of the customer, photographs, identification and concerned documents were in the record of Customer Care Unit of B.S.N.L. He has admitted that it was not possible to tell about the name of the customer from call details Ext. PW-36/B-1 to Ext. PW-36/B-8. He volunteered that the same was available in the computer. The office of S.P., Shimla did not ask about the name of the customer. He has not appended any certificate on the call details regarding authenticity of the details. He has not written the name and the number on Ext. PW-36/B-1 within point ‘A’ to ‘A’. He could not tell the call details were on excel format. The hard copy of the call details was not supplied by the B.S.N.L. But the printout was taken by the S.P. Office. 43. PW-37 Navjeet Sangwan has deposed that he was Nodal Officer for the last about 3 ½ years. He received email from S.P. office Shimla, Ext. PW-37/A regarding call details of Mobile Phone No. 98579-02729 on the same day. In reply to email, he sent attachment regarding the call details to S.P. office Shimla. 43. PW-37 Navjeet Sangwan has deposed that he was Nodal Officer for the last about 3 ½ years. He received email from S.P. office Shimla, Ext. PW-37/A regarding call details of Mobile Phone No. 98579-02729 on the same day. In reply to email, he sent attachment regarding the call details to S.P. office Shimla. The call details were Ext. PW-37/B-1 to P-37/B-4. The details have been supplied by him from the computer which was solely under his control and custody and no one could temper /alter with entries regarding call details as it was duly protected by a password. In his cross-examination, he has admitted that the name of the customer, the photographs, identification and concerned documents were in the record of customer care unit of Aircel. He has also admitted that it was not possible to tell about the name of the customer from the call details Ext. PW-37/B-1 to Ext. PW-37/B-4. He has admitted that he has appended no certificate with the call details regarding the authenticity of call details. The S.P. office has not asked to supply Customer Application Form but they only asked for the name and address of the customer. The call details were on excel format. The hard copy of call detail was not supplied by Aircel, but the printout was taken by the S.P, office. 44. PW-38 Shakuntla has deposed that on 6.7.2010, case file was handed over to her for further investigation by Superintendent of Police, Shimla vide order No. 37183 dated 6.7.2010. She interrogated accused Kiran Himral in the presence of Rajkumar and Daljeet Singh and recorded disclosure statement of accused under section 27 of the Indian Evidence Act. Accused disclosed that she has hidden mobile phone and SIM in her ancestral house in village Banuna. On the basis of her disclosure statement, memo Ext. PW-5/A was prepared. It was signed by accused and witnesses Rajkumar and Daljeet Singh. In her cross-examination, she has deposed that witnesses Daljeet and Rajkumar had come to the office of Superintendent of Police for their personal work. She could not tell the work which they were having in S.P. office. The witnesses were already sitting in the office of S.P. Shimla, when she started interrogating accused. PW-5 and PW-6 were not known to him prior to that date. The witnesses Rajkumar and Daljeet never came to Police Station, Sadar, in connection with this case. She could not tell the work which they were having in S.P. office. The witnesses were already sitting in the office of S.P. Shimla, when she started interrogating accused. PW-5 and PW-6 were not known to him prior to that date. The witnesses Rajkumar and Daljeet never came to Police Station, Sadar, in connection with this case. Second disclosure statement was recorded at Police Station Sadar on 17.11.2010. The witnesses to discloser statement Ext. PW-22/A were known to her. She did not remember what was actual work for which witnesses had come to the police station. She also did not remember whether that work was done or not. She did not remember whether witnesses lodged complaint against persons on that day. She has admitted that when she recorded the statement of witnesses at that time, they have not disclosed that for what work they had come to the police station. Witnesses Raj Kumar and Pushpinder came in contact with police on 14.7.2010 and on the same day, application was moved for recording their statements under section 164 of the Code of Criminal Procedure. She has denied that the police used to call Pushpinder and Rajkumar to police station every day after 7.7.2010. 45. Now, we will advert to the recovery of two mobile phones and SIMs of accused Kiran Himral. According to PW-5, Daljeet Singh, he was a property dealer. He had lost his identity card. He had gone to Police Station Sadar, on 6.7.2010. Accused Kiran told the police that the mobile was in her house, which was towards Suni side. She further told that she alone was knowing about that mobile. Her statement was recorded vide Ex.PW-5/A. In his cross-examination, he has admitted that police did not record his rapat regarding loss of identity card on the ground that they had heavy rush of work. He did not record rapat regarding theft later on. PW-6 Raj Kumar has deposed that on 6.7.2010, S.H.O. Shakuntala Sharma summoned him to Police Station, Sadar regarding the incident of 30.6.2010. Accused Kiran was also present in the Police Station, Sadar. She gave statement to the S.H.O. that she has concealed her mobile in a bath room in Banuna village near Suni. It was reduced into writing vide Ex.PW-5/A. In his cross-examination, he has admitted that he did not remember the phone number from which he received calls on 30.6.2010. Accused Kiran was also present in the Police Station, Sadar. She gave statement to the S.H.O. that she has concealed her mobile in a bath room in Banuna village near Suni. It was reduced into writing vide Ex.PW-5/A. In his cross-examination, he has admitted that he did not remember the phone number from which he received calls on 30.6.2010. He reached Police Station, Sadar on 6.7.2010 at about 3.30/4.00 P.M. PW-38 Shankutala has deposed that the case file was handed over to her for further investigation by Superintendent of Police, Shimla on 6.7.2010. She interrogated accused Kiran Himral in presence of Raj Kumar and Daljit Singh and recorded disclosure statement of accused under section 27 of the Indian Evidence Act vide Ex.PW-5/A. In her cross-examination, she has specifically deposed that accused was interrogated by her in the office of Superintendent of Police on 6.10.2010. Witnesses had come to the office of Superintendent of Police for their personal work. She could not tell about the work which the witnesses were having in the office of Superintendent of Police, Shimla. According to her, witnesses were already sitting in the office of Superintendent of Police, Shimla when she started interrogating the accused. PW-5 and PW-6 were not known to her prior to that date. Statement of accused under section 27 of the Indian Evidence Act was recorded in the office of A.S.P., Shimla. Witnesses did not disclose to her what sort of work they were having in the office of Superintendent of Police, Shimla. She has denied that the disclosure statement Ex.PW-5/A was prepared at Police Station, Sadar. PW-5 and PW-6 have categorically stated, as noticed above, that they were called to the Police Station and before that disclosure statement Ex.PW-5/A was made. However, PW-38 Shankutala has stated that their statements were recorded in the office of A.S.P. Shimla and they were not called to Police Station, Sadar. PW-4 Mrs. Lata Himral has deposed that accused Kiran led them to bath room of her house. She took out a mobile of Micromax, which was concealed behind the Kari (wooden fixing) of bath room ceiling. When the mobile set was produced before the court, it was neither sealed nor wrapped. On the basis of statements of PW-4 Mrs. PW-4 Mrs. Lata Himral has deposed that accused Kiran led them to bath room of her house. She took out a mobile of Micromax, which was concealed behind the Kari (wooden fixing) of bath room ceiling. When the mobile set was produced before the court, it was neither sealed nor wrapped. On the basis of statements of PW-4 Mrs. Lata Himral, PW-5 Daljit Singh and PW-6 Raj Kumar, it can safely be concluded that the prosecution has failed to prove recovery of Ex.P-6, i.e. Micromax brand mobile phone. 46. PW-38 Shakuntala has also recorded second disclosure statement of accused Kiran Himral on 11.7.2010 at Police Station, Sadar vide Ex.PW-22/A. According to her, witnesses to the disclosure statement were not known to her. They came to Police Station for their personal work. She did not remember what was their personal work. She did not remember whether that work had been done or not. She did not remember whether the witnesses lodged complaint against person on that day. She has admitted that when she recorded the statements of witnesses at that time they have not disclosed that for what purpose they have come to Police Station. She did not remember whether both the witnesses came together or after a gap of sometime. 47. PW-22 Visheshar Nath has deposed that on 11.7.2010, he had gone to Police Station, Sadar, Shimla. Disclosure statement Ex.PW-22/A was made by accused Kiran Himral. In his cross-examination, he has deposed that he had gone to Police Station, Sadar since some objectionable SMS were coming in the mobile of her niece. The matter was investigated by the police. He had reported the matter in Police Station, Sadar regarding objectionable SMS about a month. He did not remember the FIR number, which was lodged on his complaint. On 11.7.2010, he visited Police Station, Sadar between 12.00 noon and 1.00 P.M. Ex.PW-22/A was written in the room of S.H.O. 48. PW-3 Mrs. Anita Sharma has deposed that a mobile with three SIM cards was found in the drawer of Mandir whereas one other SIM was also found from the room, which was with the entrance of the set. Ex.PW-3/A was prepared. The parcel was opened in the court. It was just pinned up with pins. A mobile wrapped in a white paper, on which Mobile Nokia was written, was taken out. From the parcel, another folded white paper was taken out. Ex.PW-3/A was prepared. The parcel was opened in the court. It was just pinned up with pins. A mobile wrapped in a white paper, on which Mobile Nokia was written, was taken out. From the parcel, another folded white paper was taken out. From this folded paper, four SIM cards, three of B.S.N.L. and one of Reliance were taken out. Mobile set was Ex.P-1 and SIM Cards were Ex.P-2 to Ex.P-5. She was not certain that these were the same or not. PW-22 Visheshar Nath though stated to have gone to the Police Station concerning the objectionable SMS received by his niece but he did not remember the number of FIR of his complaint. Statement of PW-22 Visheshar Nath does not inspire confidence since the explanation given by him about his presence in the Police Station is flimsy. In view of statements of PW-3 Mrs. Anita Sharma, PW-22 Visheshar Nath and PW-38 Shakuntla, the recovery of mobile Ex.P-1 and SIM cards Ex.P-2 to Ex.P-5 is also doubtful. 49. PW-20 Rajesh Sood and PW-21 Sandeep Jasal have been examined by the prosecution to prove the recovery of weapon of offence Ex.P-34. PW-20 Rajesh Sood has deposed that on 8.7.2010, he and Sandeep Jasal were called by the police to Police Station (West), Shimla. Police told them that accused Sonu wanted to give a statement, whereupon, Sonu told the police that he could get the rod, mobile and his own clothes recovered from a place near P.W.D. Store, Tutikandi. His statement was recorded in writing vide Ex.PW-20/A. He did not go with police for the recovery of articles. He was in Police Station, Boileauganj. After 2-3 hours, police came with accused and they were having a rod as well as clothes. Memo Ex.PW-20/B was prepared to this effect. He was declared hostile. Sealed cloth parcels sealed with five seals was produced. Seals were not legible. The sealed parcels were Ex.P-32 to Ex.P-34. In his crossexamination, he has admitted that he was called by the Police of Police Station (West), Shimla by a constable. Ex.PW-20/A was prepared prior in time when accused had given statement. Ex.PW-20/A was signed earlier. Both the memos Ex.PW-20/A and Ex.PW-20/B were signed after the interval of one hour. He did not go with the police to Tutikandi. Ex.P-34 was not iron rod, but G.I. pipe. He signed Ex.P-34 in good faith. Ex.PW-20/A was prepared prior in time when accused had given statement. Ex.PW-20/A was signed earlier. Both the memos Ex.PW-20/A and Ex.PW-20/B were signed after the interval of one hour. He did not go with the police to Tutikandi. Ex.P-34 was not iron rod, but G.I. pipe. He signed Ex.P-34 in good faith. There was no mention of P.W.D. Store in Ex.PW-20/A. 50. PW-21 Sandeep Jasal has deposed that he was running a General Store at Boileauganj. On 8.7.2010, he and Rajesh Sood were called to Police Station (West), Shimla. Accused Sandeep alias Sonu made statement Ex.PW-20/A. He signed the same. They left the Police Station and came to his shop. After sometime, they were again called by the police to Police Station (West) and told that they have recovered a rod. The rod was packed in a cloth and then sealed. Memo was prepared vide Ex.PW- 20/B. He put his signatures on the same. He was also declared hostile by the prosecution. In his crossexamination by the learned Public Prosecutor, he has denied that after recording statement Ex.PW-20/A, he and Rajesh had gone with the police and accused to Tutikandi. He has denied the suggestion that accused led the police to the place near P.W.D. Store, Tutikandi and got recovered pipe Ex.P-34. In his cross-examination by the learned defence counsel on behalf of one of the accused, he could not disclose from where the police has brought the pipe. Statements of PW-20 Rajesh Sood and PW-21 Sandeep Jasal do not inspire confidence. They have not narrated the manner in which the rod was recovered. They have neither gone to the Police Station or to the site from where the rod was recovered. Rather PW-20 Rajesh Sood has deposed that they signed memo Ex.PW-20/A and thereafter police brought rod and they signed Ex.PW- 20/B. The prosecution has failed to prove the recovery of weapon of offence. 51. Mr. M.A. Khan, learned Additional Advocate General has put strong reliance on statement of PW-9 Raj Kumar and PW-10 Pushipinder Swarup and their statements recorded under section 164 of the Code of Criminal Procedure vide Ex.PW-26/B and Ex.PW-26/C. PW-9 Raj Kumar has deposed that he received a telephone call from Pushpinder. He told him that Sandeep would not be in a position to take bus for the village. He told him that Sandeep would not be in a position to take bus for the village. He further told him that he was busy, therefore, he should go to 103 tunnel, Shimla to take Sandeep to the village. He received the call from Pushpinder on his cell phone. After about 15 minutes, he received a call from accused Sandeep, who inquired from him whether he was coming to take him to the village. He told accused Sandeep that if he has talked to Pushpinder regarding motorcycle, then he would come. Sandeep told him that he has already talked to Pushpinder and he has directed him to get petrol filled in his motorcycle worth ` 150/-. At about 8.30 P.M. he was in his house when he again received a cell on his mobile from Sandeep and he told him that he should reach on the motorcycle at 103 tunnel to take him. He told him that he should move out from his house at 9.00 P.M. He left his house at 9.00 P.M. and came to 103 tunnel. Before his arrival at 103 tunnel, Sandeep was already there. He reached at 103 tunnel at about 9.30 P.M. They also went towards Petrol Pump located in Lakkar Bazaar. They came back on the motorcycle. When they reached at 103 tunnel, he started to go towards Jubbar Hatti. Sandeep further asked him to stop and further told that he has to meet some person at local bus stand, Shimla since he has to take some money from him. As such, both of us came on motorcycle to local bus stand Shimla. They stopped there for about 10-15 minutes. Thereafter, they again came towards 103 tunnel and there Sandeep again asked him to stop. Thereafter, they started going towards main road, but Sandeep asked him to go on the link road leading towards Tutikandi. He asked Sandeep which was that road and he told that this road connects Shimla byepass and then leads towards Tara Devi from there; they would go to their house. After covering short distance on the link road, Sandeep asked him to stop and further stated that he wanted to urinate. He stopped his motorcycle. Sandeep boarded off from the motorcycle. After about 2 minutes, Sandeep came back and again boarded on the motorcycle. A person was going ahead of their motorcycle. After covering short distance on the link road, Sandeep asked him to stop and further stated that he wanted to urinate. He stopped his motorcycle. Sandeep boarded off from the motorcycle. After about 2 minutes, Sandeep came back and again boarded on the motorcycle. A person was going ahead of their motorcycle. When they were about to reach just near that person and he was about to apply the brakes, Sandeep took out something and hit that person on the back of his head. He again boarded off from the motorcycle. He saw that Sandeep was hitting that man with something/object. He got tense. He asked Sandeep what he has done. He told him that he has nothing to do with that and directed not to tell anything to anyone. They came to I.S.B.T., which was under construction. He threw that object in the bushes. After that Sandeep was doing something with his mobile, but he could not hear since he was wearing helmet. He parked the motorcycle in the house of Pushpinder. Pushpinder rang up him and asked how much petrol was filled in the motorcycle and he apprised him accordingly. On 7.7.2010, he was called to Police Station (West), Shimla. On 16.7.2010, he was taken to the court of Judicial Magistrate at Shimla by the Police of Police Station, Sadar. He gave his statement. He could not see with which object Sandeep had hit that man, who was going ahead of their motorcycle. He was declared hostile since he has resiled from his statement recorded under section 164 of the Code of Criminal Procedure. In his cross-examination, he has deposed that he did not tell about the incident to any member of his family. On 2.7.2010, he and Pushpinder left towards Chandigarh. He was called to the Police Station (West) on 7.7.2010. He was called by the Police regularly for three days. In his further cross-examination, he has deposed that when accused Sandeep met him at 103 tunnel, nothing was in his hands. He did not see anything in his hands. He did not see any steel rod in the hands of Sandeep at the time when he was hitting that man. He did not see blood spots on the clothes of Sandeep on that night. 52. PW-38 Shankutla has deposed that Raj Kumar and Pushpinder were never called to the Police Station by her. He did not see any steel rod in the hands of Sandeep at the time when he was hitting that man. He did not see blood spots on the clothes of Sandeep on that night. 52. PW-38 Shankutla has deposed that Raj Kumar and Pushpinder were never called to the Police Station by her. However, PW-9 Raj Kumar has categorically deposed that he was called to the Police Station on 7.7.2010 onwards. The motorcycle belongs to PW-10 Pushpinder. Prosecution has not led any evidence to prove that Sandeep has called Pushpinder to take him on motorcycle. According to PW-9 Raj Kumar, accused Sandeep told him to take the motorcycle towards Tutikandi. He stopped there for two minutes. Thereafter, according to PW-9 Raj Kumar, when they reached just near that person, Sandeep took out something and hit that person on the back of his head. According to PW-9 Raj Kumar, accused was doing something with his mobile, but he could not hear since he was wearing helmet. If he was wearing helmet then how he could hear that the accused asked him to go on the link road leading towards Tutikandi. In his examination-in- chief, he has deposed that he could not see with which object, Sandeep hit that man, who was going ahead of their motorcycle. In his cross-examination, he has deposed that he did not tell about the incident to any member of his family. The incident has happened on the intervening night of 1/2.7.2010 at 1.30 A.M. In normal circumstances after he had seen the incident, he would have brought the same to the notice of his family members. In his cross-examination, he has deposed that when accused Sandeep met him at 103 tunnel, nothing was in his hands. He did not see any steel rod in the hands of Sandeep at the time when he was hitting that man. He has not even noticed blood spots on the clothes of Sandeep on that night. Though his statement was recorded by PW-26 Pankaj, Judicial Magistrate 1st Class- III, Shimla, however, the same cannot be treated as substantive evidence. He was declared hostile on a very important issue of type of weapon used by the accused to hit the deceased. 53. PW-10 Pushpinder has admitted in his cross-examination that he did not make any effort to inform the police regarding the facts told to him by Raj Kumar. He was declared hostile on a very important issue of type of weapon used by the accused to hit the deceased. 53. PW-10 Pushpinder has admitted in his cross-examination that he did not make any effort to inform the police regarding the facts told to him by Raj Kumar. He was called by the police on 7.7.2010. Raj Kumar was also called by the police. They were regularly called by the police with effect from 7.7.2010 to 17.7.2010. PW-10 Pushpinder was also declared hostile since he has resiled from his earlier statement recorded under section 164 of the Code of Criminal Procedure. In his cross-examination, he has deposed that the application was given in the court on 12.7.2010. They had come on 14.7.2010 as well as on 16.7.2010. He knew Inspector Shakuntla. She was present in the court near the dais when his statement was recorded. According to him, Raj Kumar did not tell the place where scuffle took place. He did not tell that Sandeep had hit with steel rod. He even did not tell that Sandeep has used some weapon. He was tortured. Raj Kumar was also tortured. They were given beatings and slaps. 54. PW-26 Pankaj, Judicial Magistrate 1st Class has recorded the statements of PW-9 Raj Kumar and PW- 10 Pushpinder. PW-9 has deposed that PW-38 was standing near the dais when his statement was recorded in the court. However, PW-26 Pankaj has denied the suggestion that at the time of recording of statements of Raj Kumar and Pushpinder by him on 16.7.2010, under section 164 of the Code of Criminal Procedure, S.H.O. Shankutla was present in the Court near witness box. PW-26 Pankaj has admitted that he did not ask the witnesses on that day that where they remained from 1.7.2010 to 16.7.2010 and whether during this period, they were summoned by the police during investigation. He did not ask whether the witnesses were tortured by the police. 55. According to the prosecution case, rod, mobile and clothes of accused Sandeep were recovered on the basis of disclosure statement Ex.PW-20/A. PW-20 Rajesh Sood and PW-21 Sandeep Jasal were declared hostile. PW-7 Meena Sharma has deposed that accused Sandeep has got recovered SIM card, including clothes and memos to this effect were prepared vide Ex.PW-7/A and Ex.PW/7/B. He also got recovered broken pieces of SIM Ex.P-14 and P-15. PW-7 Meena Sharma has deposed that accused Sandeep has got recovered SIM card, including clothes and memos to this effect were prepared vide Ex.PW-7/A and Ex.PW/7/B. He also got recovered broken pieces of SIM Ex.P-14 and P-15. She has not personally seen the accused lifting the pieces of SIM from the grass. Volunteered that police at that time stated that SIMs have been recovered. She did not put her signatures or identification mark on the chip of SIM. According to her, all SIM cards look like Ex.P-14 and Ex.P-15. She has also admitted that she remained associated with ASI Anil earlier also in dispute occurring in their Panchayat. Mere recovery of cell phone without SIMs would be of no consequence since the SIMs Ex.P-14 and Ex.P-15 were found to be broken. When the cloth parcels sealed with five seals were produced, though some seal impressions were there, however, seals were not legible. It has come in the statement of PW-33 Anil Kumar that witnesses Asha and Meena were known to him, but he was not having their mobile phone numbers. 56. According to the findings of learned Additional Sessions Judge, conduct of accused Kiran Himral was unusual. Prosecution has relied upon statement of PW-2 Rakesh Sharma to prove this point. PW-2 Rakesh Sharma has deposed that on 1.7.2010 at about 11.00 P.M., he was sleeping. His mother came and told that Kiran wife of Nikka Ram was weeping. He came out and found that Kiran was weeping. Kiran told him that they should go towards 103 tunnel in search of Nikka Ram. He was having a vehicle. He told Kiran that they should go in the vehicle, but she told that they should in search of Nikka Ram on foot. They started coming towards 103 tunnel via New Shimla bye-pass road. When they reached near Tutikandi School, Kiran was ahead of him and was talking to some one. He asked her to whom she was talking. She told that she was talking with her brother. A little ahead of that place, three men met them and they asked why Kiran was weeping. He told them that her husband has not returned from his work place. On which, those men told that one man was lying on the road a little bit ahead. Kiran Himral started weeping. She told that she was talking with her brother. A little ahead of that place, three men met them and they asked why Kiran was weeping. He told them that her husband has not returned from his work place. On which, those men told that one man was lying on the road a little bit ahead. Kiran Himral started weeping. In his cross-examination, he has admitted that he did not know those three men, who met them on the road on the previous night. He did not know whether they were local of Tutikandi area or they were outsiders. PW-3 Mrs. Anita Sharma has deposed that on 1.7.2010 they were sleeping when Kiran made them to wake up by giving door bell. She came out and found Kiran weeping. On her asking, she told that her husband has not returned from work place. Other employees of H.R.T.C. also stayed there. She accompanied Kiran to those houses. On giving door bell, Leela Thakur came out. Kiran told that her husband has not returned from work place. Ramanand Thakur, her husband, was also conductor with H.R.T.C. He consoled Kiran that it was still ten minutes for 11.00 P.M. When they reached in their courtyard, Kiran told her that she should wake up her son Rakesh Sharma so that he could accompany her in search of her husband. She woke up her son Rakesh and asked him to go with Kiran in search of her husband. Her son told Kiran that they should go in a vehicle, but Kiran refused and told that they would go on foot. Thereafter, she received a call from Kiran Himral and she told her that she should also come to that place since her husband has been assaulted. 57. It cannot be gathered how the conduct of Kiran Himral was unusual as per the statements of PW-2 Rakesh Sharma and PW-3 Anita Sharma. In her crossexamination, PW-3 Anita Sharma has categorically admitted that when Kiran came to her, she did not request or ask to go in search of her husband. She merely requested to inquire about it in the house of Ramanand. Kiran at that time told her that 2-3 days earlier, some men had chased her husband near Tutikandi and for this reason, she was frightened. PW-3 Sunita Sharma has gone with Kiran to the house of Ramanand. She merely requested to inquire about it in the house of Ramanand. Kiran at that time told her that 2-3 days earlier, some men had chased her husband near Tutikandi and for this reason, she was frightened. PW-3 Sunita Sharma has gone with Kiran to the house of Ramanand. Ramanand had consoled her that Nikka Ram would come back. PW-2 Rakesh Sharma has stated that when they reached near Tutikandi, Kiran was ahead of her and was talking to someone. Prosecution has not proved this link evidence with whom she was talking. They also met three men. They asked why Kiran was weeping. These persons told that a man was lying on the road a little bit ahead. The distance between the place where three men met them and the place where Nikka Ram was lying, was roughly around 10 meters. Police has never tried to find out about the identity and features of those three persons, who met them on that night near 103 tunnel. PW-2 Rakesh Sharma has remained with Nikka Ram from the spot till hospital. Merely that Kiran has told PW-2 Rakesh that they should go on foot does not mean that she knew that her husband has been beaten up. Different people would react differently to a particular situation. She knew that her husband used to come from the direction of 103 tunnel, Shimla and her normal reaction was to go towards 103 tunnel. 58. Case of the prosecution was also that accused Kiran Himral had illicit relations with accused Sandeep. Prosecution has put strong reliance on the statement of PW-11 Ms. Geeta. According to her, she stayed with accused Kiran in her house known as Kashish Cottage, Tutikandi. Accused Sandeep also used to come there when her uncle was away. However, in her cross-examination, she has deposed that she did not remember the dates and the months when she saw accused Sandeep in the house of Kiran. The best evidence whether accused used to visit the house of accused Kiran in absence of her husband was either PW-2 Rakesh Sharma or PW-3 Sunita Sharma. Kiran Himral and Nikka Ram were tenants of PW-2 Rakesh Sharma and PW-3 Mrs. Anita Sharma. They were the best persons to tell whether accused Sandeep was visiting accused Kiran in the absence of her husband. 59. Kiran Himral and Nikka Ram were tenants of PW-2 Rakesh Sharma and PW-3 Mrs. Anita Sharma. They were the best persons to tell whether accused Sandeep was visiting accused Kiran in the absence of her husband. 59. The prosecution has also tried to establish on the basis of Ex.P-16 and P-17 that accused Sandeep and Kiran have stayed in Solan on two different dates, i.e. 11.6.2010 and 20.6.2010. PW-8 Ajay Kashyap has deposed that as per entry No. 7191 dated 20.6.2010, Sandeep Kumar and Kiran Kashyap have stayed in the hotel. This entry was signed by the visitor and it also mentioned the mobile number of the visitor. Similarly, in Ex.P-17 against entry No. 5698, name of Sandeep Kashyap and Kiran Kashyap have stayed on 11.6.2010. PW-8 Ajay Kashyap in his cross-examination has admitted that in entry No. 7191 Ex.P-16, the mobile number and the name of Kiran Kashyap was in different ink than the other contents. It is evident from entry No.7191 Ex.P-16 that Kiran Kashyap has been added later on and figure 1 (one) has been converted into 2 (two). As far as entry No.5698 Ex.P-17 is concerned, name of Kiran Kashyap has not been mentioned only name of Sandeep Kashyap is mentioned. PW-33 S.I. Anil Kumar has admitted in his cross-examination that no identification of accused was conducted by associating the hotel employees. PW-14 Jagjit Singh has proved report Ex.PW-14/A. However, in his cross-examination, he has admitted that reasons for opinion were annexed with Ex.PW-14/A. The reasons were not mentioned in Ex.PW-14/A. According to him, the reasons were kept in office file and Dr. Minakshi Mahajan did not give separate reasons while verifying his report. The prosecution has failed to prove that accused have ever stayed at Solan on different dates. 60. The prosecution has also tried to prove illicit relationship between the accused on the basis of telephone calls by producing PW-36 R.A. Rajshekhar and PW-37 Navjeet Sangwan. PW-36 R.A. Rajshekhar has admitted in his cross-examination that all the details regarding name of the customer, photographs, identification and concerned documents were in the record of the customer care unit of B.S.N.L. He has also admitted that it was not possible to tell about the name of the customer from call details Ex.PW-36/B-1 to Ex.PW- 36/B-8, though he has deposed that the same was available in the computer. According to him, office of the Superintendent of Police, Shimla did not ask them about the name of the customer while calling for details. He could not tell about the name of the customer. He could not tell that the call details were on excel format. The hard copy of call details were not supplied by B.S.N.L, but print out was taken by the office of the Superintendent of Police. He has also admitted that he has not appended any certificate regarding the authenticity of the call details. The electronic evidence is required to be proved as per section 65-B of the Evidence Act. The prosecution has not produced on record the conversation/transcript of the telephone call details. It is also necessary for the prosecution to take sample voices of the accused and to match them with the recorded conversation. Placing on record the call details without conversation/transcript is not sufficient to connect the accused with the commission of offence. The prosecution has failed to prove that the motive to kill Nikka Ram was the result of illicit relations between the accused. 61. PW-34 Dr. Piyush Kapila has opined that deceased died due to gross ante-mortem head injury and the probable time which might have elapsed between injury and death was found to be delay and between death and postmortem was found to be around 8-12 hours. In his cross-examination he has deposed that injuries mentioned in PMR were not possible with a single blow of Ext. P-34 or the like objects. We have already noticed that the prosecution has not proved the recovery of alleged weapon of offence, i.e. rod. 62. The prosecution has failed to prove criminal conspiracy. Learned Additional Sessions Judge has come to a wrong conclusion that the criminal conspiracy is proved merely on the basis that the accused had stayed in a hotel at Solan and their movement was traced prior to the date of incident. We have already concluded that the prosecution has not proved the entries in the register of hotel on these dates. We have also gone through entries, i.e. Ex.P-16 and Ex.P-17. PW-8 Ajay Kahsyap has admitted in his cross-examination that in etnry No.7191 Ex.P-16, the mobile number and name of Kiran Kashyap is in different ink. 63. We have already concluded that the prosecution has not proved the entries in the register of hotel on these dates. We have also gone through entries, i.e. Ex.P-16 and Ex.P-17. PW-8 Ajay Kahsyap has admitted in his cross-examination that in etnry No.7191 Ex.P-16, the mobile number and name of Kiran Kashyap is in different ink. 63. In order to prove conspiracy the prosecution is required to prove an agreement between two or more persons to do or cause to be done some illegal act and such act means over act. 64. The other statement relied upon by the prosecution is of PW-11 Geeta Devi. We have already discussed the statement of PW-11 Geeta Devi threadbare. 65. Now, as far as the conduct of accused Kiran Himral is concerned, we do not find the same unusual as noticed in the preceding paras of the judgment. 66. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case conclusively that the accused have committed murder after hatching conspiracy. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 63. Accordingly, the appeals are allowed. Judgment of conviction and sentence dated 10.9.2012 rendered in Sessions Trial No.2-S/7 of 2011 is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Since the accused are in jail, they be released forthwith, if not required in any other case. 64. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.