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2015 DIGILAW 389 (HP)

Ramesh Thapa v. State of Himachal Pradesh

2015-04-23

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 14.12.2011 rendered by the Sessions Judge, Solan in Sessions Trial No. 4-NL/7 of 2011, whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 302 read with section 34 of the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years. 2. Case of the prosecution, in a nutshell, is that on 19.10.2010 at about 7.15 A.M., one Geeta Ram Bharadwaj informed the police telephonically that a boy Raghubir Singh, who was working in a Dhaba of PW-1 Rattan Lal in front of State Bank of Patiala was found dead. Police party headed by S.I. Dharam Singh accompanied by other police officials after recording the information in the daily diary went to the spot and recorded the statement of Rattan Lal under section 154 of the Code of Criminal Procedure. Raghubir Singh son of Sh. Kalu was resident of Rampur. He was assisting Rattan Lal. Accused was also working in his Dhaba. Accused had left Dhaba after the settlement of his accounts about 15 days back. Raghubir Singh used to sleep in the first floor in the room. On 18.10.2010 at about 11.30 P.M., Ramesh Thapa accompanied by another Nepali came to his Dhaba and went to sleep with Raghubir Singh in the same room. During mid-night at about 2.00 A.M., the shutter of his Dhaba was knocked from outside as Dhaba owner was sleeping inside his Dhaba. He found Ramesh Thapa accompanied by another Nepali outside his shutter. Ramesh Thapa demanded water for drinking. He handed over to him the water and the shutter was closed. These persons remained outside talking with each other. Next morning, he woke up and went to the room of Raghubir Singh. He found Raghubir Singh dead. FIR was registered. Dead body was taken into possession by the police after preparing inquest reports. It was sent for post-mortem. The doctor opined the cause of death as vagal inhibition and respiratory obstructions combined resulting from strangulation. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. FIR was registered. Dead body was taken into possession by the police after preparing inquest reports. It was sent for post-mortem. The doctor opined the cause of death as vagal inhibition and respiratory obstructions combined resulting from strangulation. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as 9 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. According to him, he was falsely implicated. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Mr. Avneesh Bhardwaj, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. P.M. Negi, learned Deputy Advocate General, has supported the judgment dated 14.12.2011 passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Rattan Lal has deposed that his Dhaba is situated in the house of Ram Lal. Accused was working in his Dhaba for the last two years with intervals. Accused used to leave his Dhaba sometime and thereafter again came to his Dhaba for working. Raghubir Singh used to sleep in the room situated above the Dhaba in the same premises which were taken by him on rent. On 18.10.2010 at about 11.30 P.M. accused Ramesh Thapa came to his Dhaba alongwith another person and after finishing work in the Dhaba, Raghubir Singh and Ramesh Thapa alongwith another person went to sleep in the upper storey. He slept in the Dhaba. At about 2.30 A.M., Ramesh Thapa accompanied by another person came outside the Dhaba and started knocking the shutter of his Dhaba. They tried to open it. He asked them from inside what was the matter and directed them to sleep. Ramesh Thapa accompanied by another person demanded water from him. He slipped the bottle underneath the shutter. He did not allow them to open the shutter. He over-heard the conversation between Ramesh Thapa and another person. Both of them kept standing outside the shutter for sometime. He woke up at 5.30 A.M. early in the morning. He opened the Dhaba and started doing daily routine work. He slipped the bottle underneath the shutter. He did not allow them to open the shutter. He over-heard the conversation between Ramesh Thapa and another person. Both of them kept standing outside the shutter for sometime. He woke up at 5.30 A.M. early in the morning. He opened the Dhaba and started doing daily routine work. He used to ask his assistant to wake up around 7.00 A.M. He went in the room of the first floor. Accused Ramesh Thapa and another person were found absent. Raghubir Singh was found sleeping with the blanket lying on him. When he removed the blanket, he found that blood was oozing out from nostril and mouth of Raghubir Singh. Raghubir Singh was found dead. He informed his landlord Ram Lal. He informed the Pradhan Gram Panchayat. He suspected that Ramesh Thapa has committed murder of Raghubir Singh. According to him, Ramesh Thapa had returned during night and disclosed that his marriage proposal with a girl has been deferred for want of Rs. 15,000/- and he was planning to arrange this money to be given to the father of the girl. In his cross-examination, he voluntarily stated that Ramesh Thapa was working in his Dhaba but proceeded on leave for sometime. There were four rooms over the Dhaba. In one room, his assistant used to reside and another room was with the Reliance Company. However, no one used to reside there during night and other room was used as computer room, which also used to remain open during day time and generally remained closed. In one room there was stationery and another room was with security personnel in which security officials used to visit occasionally. State Bank of Patiala was in front of his Dhaba and Oriental Bank was also there. Ramesh Thapa had left his Dhaba about 14 days back. He did not narrate to the police that Ramesh Thapa had disclosed about Rs. 15,000/- required for his marriage. He told the police that accused accompanied by another person tried to open his shutter during mid-night. 8. PW-2 Ram Lal Thakur has deposed that on 19.10.2010, Rattan Lal came to his house at 7.00 A.M. and disclosed that a boy was found dead in his room. He informed Pradhan Geeta Ram telephonically about the incident. Pradhan further informed the police. 8. PW-2 Ram Lal Thakur has deposed that on 19.10.2010, Rattan Lal came to his house at 7.00 A.M. and disclosed that a boy was found dead in his room. He informed Pradhan Geeta Ram telephonically about the incident. Pradhan further informed the police. He went to the spot alongwith Pradhan and the police found the dead body of the deceased. In his cross-examination, he has deposed that he has seen the accused Ramesh Thapa working in the Dhaba of Rattan Lal. 9. Statement of PW-3 Vasant Ram is formal in nature. 10. PW-4 Dr. Ajay Pathak has conducted the post-mortem of deceased at 2.00 P.M. on 19.10.2010. According to him, cause of death was vagal inhibition and respiratory obstructions combined resulting from strangulation. The post-mortem report is Ex.PW-4/D. 11. PW-5 Achhar Singh has deposed that the case property was deposited with him. He incorporated entry at Sr. No. 350 in the Malkhana register vide Ex.PW-5/A. He sent the case property through Constable Praveen Kumar to be deposited in the F.S.L. 12. PW-6 Praveen Kumar has deposed that PW-5 Achhar Singh handed over to him two sealed parcels and three jars alongwith specimen impression of seal vide RC No.117/2010 to be deposited at F.S.L. He deposited the same with the F.S.L and brought the receipt over R.C. itself. 13. Statements of PW-7 Pradeep Chand and PW- 8 R.P. Jaswal are formal in nature. 14. PW-9 Inspector Dharam Singh has carried out the investigation. He received telephonic information. He alongwith other police officials visited the spot and found the dead body lying in the room. Statement of Rattan Lal was recorded under section 154 of the Code of Criminal Procedure. FIR was registered. Inquest reports Ex.PW-4/B and Ex.PW-4/C were prepared. Dead body was sent for post-mortem. Accused was arrested on 11.11.2010. In his cross-examination, he has deposed that another person, who accompanied the accused on the day of occurrence, was Arjun Thapa, but he could not apprehend him as his whereabouts were not known even to the accused. 15. What emerges from the case of the prosecution is that deceased Raghubir Singh was employed by PW-1 Rattan Lal in his Dhaba. Accused alongwith another person slept with the deceased. Accused came down and asked PW-1 Rattan Lal for water at 2.30 A.M. Water was supplied by PW-1 Rattan Lal by slipping the bottle underneath the shutter. 15. What emerges from the case of the prosecution is that deceased Raghubir Singh was employed by PW-1 Rattan Lal in his Dhaba. Accused alongwith another person slept with the deceased. Accused came down and asked PW-1 Rattan Lal for water at 2.30 A.M. Water was supplied by PW-1 Rattan Lal by slipping the bottle underneath the shutter. He heard the conversation of the accused and another person. 16. Prosecution case is based on circumstantial evidence. There is no eye witness of the incident. According to PW-1 Rattan Lal, accused was working with him for the last two years with intervals. According to PW-1 Rattan Lal, accused had left his Dhaba 15 days earlier after settling his accounts. Deceased, according to PW-1, was sleeping with the accused and another person. There were three persons sleeping in the room, as is admitted case of the prosecution. Accused has come down with his companion and asked for water from PW-1 Rattan Lal. Water was supplied by PW-1 Rattan Lal, but he over heard their conversation. Second person as per the statement of PW-9 Inspector Dharam Singh was Arjun Thapa. He could not be apprehended. The police has not investigated the matter thoroughly. Arjun Thapa was the vital link in the case since he according to the prosecution was with the accused. The motive attributed to the accused for killing deceased Raghbir Singh is that he was in need of Rs. 15,000/-. The police has not found anything missing from the room. It is also not believable that Raghubir Singh, who was working in the Dhaba as helper, would be having Rs. 15,000/- with him. Thus, the theory of the prosecution that the motive of the murder was money is ruled out. The possibility of the accused on the spot is also remote for the simple reason that he had already settled his accounts with PW-1 Rattan Lal 15 days back. Thus, he was not supposed to come back again to the Dhaba. It has come on record that the State Bank of Patiala was in close proximity of Dhaba. Oriental Bank of Commerce is also situated near the Dhaba and the guard used to be present during night hours. PW-1 Rattan Lal has not disclosed about the incident to the guard, who was present in the Bank but has apprised PW-2 Ram Lal Thakur about the incident. Oriental Bank of Commerce is also situated near the Dhaba and the guard used to be present during night hours. PW-1 Rattan Lal has not disclosed about the incident to the guard, who was present in the Bank but has apprised PW-2 Ram Lal Thakur about the incident. In case the accused and second person were standing outside the Dhaba of PW-1 Rattan Lal, they would have been noticed by the guard, who was supposed to be more vigilant and cautious during night hours. Possibility of the crime being committed by the second person, who was with the accused, could also not be outrightly rejected. The prosecution has failed to prove conclusively that it was the accused who committed murder of Raghubir Singh. The explanation given by the Investigating Officer for not apprehending Arjun Thapa is not trustworthy. He should have made all out efforts to nab the second person to find out the truth. 17. In order to prove case based on circumstantial evidence, the entire chain has to be complete and all the circumstances must point towards the guilt of the accused. We have already discussed that the motive theory propounded by the prosecution is not believable. The motive plays an important role in the cases based on circumstantial evidence, more particularly, when the chain is not complete. 18. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 302 of the Indian Penal Code beyond reasonable doubt against the accused. 19. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 14.12.2011 rendered in Sessions Trial No. 4-NL/7 of 2011 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 20. 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.