State of Himachal Pradesh vs Daulat Ram, Jeet Singh and Roshan Lal

Justice Sanjay Karol, J.—For an offence, which is alleged to have been committed in the night of 2.10.1999, accused were put to trial. In terms of judgment dated, 22.12.2004, passed by the Ld. Sessions Judge, Shimla, Distt. Shimla, H.P. in S. Trial No. 22-S/7 of 2004, titled as Sate of H.P. versus Daulat Ram and others, under Sections 302, 201 and 382 read with Section 34 of the I.P.C., all the accused persons stand acquitted of the charged offences. It is the case of prosecution that on 5.10.1999 S.H.O. Bidhi Chand (PW-20) was informed by Sh. Mohan Lal that dead body of a person is lying on the cliff near village Bharanu. PW-20 proceeded to the spot and saw the dead body lying below the path at a distance of 300 yards from village Bharanu. Spot was got photographed and inquest reports (Ext. PY and PZ) prepared. The dead body was found to be in a decomposed position and also eaten by animals. Sh. Relu Ram (PW-10) identified the dead body to be that of his brother Sh. Ratti Ram. Police collected personal belongings of the deceased i.e. umbrella (Ext. P-6), spectacles (Ext. P-7), watch (Ext. P-5) and clothes (Ext. P-1, P-2 and P-3) found lying near the spot. Body was got lifted and brought to the road side. Since it was difficult to take the same to the hospital, Dr. Ashok Pawar (PW-21) from Primary Health Centre, Nerwa was called and post mortem examination got conducted on the road side in the presence of witness Liaq Ram (PW-24). Post mortem report (Ext. PAA) based on the opinion given by Dr. Ghosh, was taken on record. On 8.10.1999 Sh. Roshan Lal (PW-1) son of the deceased lodged complaint (Ext. PA) with the police on the basis of which ASI Jodha Ram (PW-16) registered F.I.R. 123/99 (Ext. PT), dated 8.10.1999 at Police Station Chopal, under Sections 302 and 382 IPC. SHO Bidhi Chand (PW-20) continued investigation till the time it was taken over by Inspector Keshav Ram (PW-25), whose investigation revealed that accused Roshan Lal on 2.10.1999 itself had made an entry in his register that Sh. Ratti Ram had died which entry was subsequently scored off. Investigation also revealed that all the three accused persons namely Daulat Ram (accused No. 1), Jeet Singh (accused No. 2) and Roshan Lal (accused No. 3) and Sh. Ratti Ram after collecting their monthly salary at the Range Office Tharoch on 2.10.1999 came to the Forest Rest House Tharoch from where same day they left together at about 5 - 5.30 p.m. in the company of each other. Deceased whose native place is Bharanu was to go to Poanta. On suspicion, Inspector Keshav Ram (PW-25) arrested the accused on 27.4.2000. During investigation, on 2.5.2000 accused Daulat Ram made disclosure statements (Ext. PC, Ext. PD, Ext. PE and Ext. PF) in the presence of independent witness Sh. Gopal Singh (PW-3). In effect investigation revealed that after leaving the Rest House at Tharoch deceased and the accused together consumed liquor in the hotel of Smt. Kali Devi at night. Thereafter accused killed the deceased, robbed him of his money and threw the body down the cliff. Danda (Ext. P-4) with which blow was given on the head of the deceased was also concealed by accused Daulat Ram. Further during investigation accused Daulat Ram identified the spot where body was disposed off, the place where they consumed liquor. He also got the danda recovered. All this was done in the presence of Sh. Gopal Singh (PW-3). Police also collected tour diaries of the accused persons, employees of the Forest Department, who were also colleagues of the deceased. With the completion of investigation challan was presented in the Court for trial.

Accused were charged for having committed offences punishable under Sections 302, 201, 382 all read with Section 34 IPC, to which they did not plead guilty and claimed trial.

In order to prove its case, in all prosecution examined 25 witnesses and statements of the accused u/s 313 Cr.P.C. were also recorded in which they took plea of innocence and false implication.

Court below acquitted the accused of the charged offences, hence the present appeal.

Sh. Relu Ram (PW-10) identified the dead body to be that of his brother Sh. Ratti Ram. Cause of death as opined by Dr. Ashok Pawar (PW-21) is "multiple injuries resulting from fall from a height". Though he did not rule out the possibility of the injury on the scalp to be caused by a blow with a Danda, but clarified and agreed "with the opinion of Doctor Ghosh, contained in Ext. PDD to the effect that in all probabilities it is a case of accidental fall in which the death of the deceased occurred as a result of multiple ante mortem injuries mainly the head injury".

In order to establish its case prosecution has to prove, beyond reasonable doubt, by leading clear, cogent, reliable piece of evidence that the accused, in furtherance of common intention murdered the deceased by giving a blow of danda, robbed him of his money and then concealed/disposed off the dead body and other evidence connected with crime.

Admittedly there is no eye-witness to the incident. Death, even as per the Doctor, took place more than 72 hours prior to the date of post mortem i.e. 6.10.1999.

Here we reproduce the following circumstances culled out by the Court below to establish the guilt of the accused:-

i) The deceased was lastly seen in the company of accused persons in the evening of 2nd October, 1999, when the deceased had departed, from Tharoch Range Office after receiving his pay;

ii) The removal of a substantial money from the deceased by the accused persons;

iii) The consumption of liquor by the accused persons in the company of the deceased in the hotel in the night following 2nd October, 1999; iv) The threats allegedly being given by accused Daulat Ram for getting the deceased transferred from Lalo Forest Block, failing which the deceased was likely to be killed by Daulat Ram;

v) The pointing out of the place by the accused Daulat Ram while in police custody from where the dead body of Ratti Ram was recovered; vi) The pointing out of the hotel room where the accused have consumed liquor in the company of the deceased, in the night following 2nd October, 1999;

vii) Recovery of Danda (Ext. P-4), the weapon of assault, in pursuance of a disclosure statement made by accused Daulat Ram;

viii) The recording of entry (Ext. PI/1), by accused Roshan Lal in his diary (Ext. PI), on 2nd October, 1999, with regard to the death of Ratti Ram.

The law on circumstantial evidence is now well settled. To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however, grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [ Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh,

The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. Trimukh Maroti Kirkan Vs. State of Maharashtra,

Significantly in the complaint Sh. Sh. Roshan Lal (PW-1) does not suspect involvement of any one of the accused in the alleged crime. It has also come in the testimony of Sh. Relu Ram (PW-10) that at the time when body was recovered by the police, accused Daulat Ram was also present. Sh. Mohan Lal who informed the police about recovery of the body has not been examined by the prosecution in Court. There is also nothing on record to show that S.H.O. Bidhi Chand (PW-20) had made any entry in the police record showing his movement from the police post/station to the spot where the body was found pursuant to the information furnished by Sh. Mohan Lal. In Court, PW-20 states that he received the call on 5.10.1999 and same day conducted the investigation. Perhaps the error with respect to the date is typographical but then it acquires significance as we find other links in the chain of events to be missing.

Sh. Relu Ram (PW-10) admits that his statement was recorded by the police, 4 - 5 days after recovery of the body. In Court he states that about 4 - 5 days prior to his death, Ratti Ram had informed him that relations between him and accused Daulat Ram had strained. Daulat Ram had desired to be posted at Lal Forest Block in place of Ratti Ram. He states that he "suspected" Ratti Ram was murdered by all the accused. This version of does not inspire confidence at all. He did not disclose this fact to the police immediately. Assuming that Daulat Ram had strained relations with the deceased, but then what was the basis of his suspicion against accused Jeet Singh and Roshan Lal. He admits that he did not disclose his conversation with his brother and factum of suspicion on 6.10.1999. Why so? has not been explained. Now if he had suspicion on anyone, his most natural conduct as a brother would have been to immediately report the same to the police. He kept silent for 3 - 4 days when allegedly his statement was recorded by the police. Also why is that he did not narrate this fact, at least to his nephew i.e. Roshan Lal (son of the deceased) who also did not point out suspicion on any one of the accused. It is not the case of prosecution that the accused persons were otherwise not available for interrogation or had not associated themselves during investigation. In fact till the time investigation was taken over by Inspector Keshav Ram (PW-25) on 9.11.1999 nothing emerged on record with regard to their involvement in the alleged crime. It appears that police recorded statement of PW-10 only after investigation was taken over by PW-25.

Sheet anchor of the prosecution case is the disclosure statement made by accused Daulat Ram on 2.5.2000. PW-25 admits that Daulat Ram was interrogated by him for the first time on 1.5.2000 and on 2.5.2000 he made disclosure statements (Ext. PC, Ext. PD, Ext. PE and Ext. PF) to him in the police station. Now this version of his stands materially contradicted by independent witness Sh. Gopal Singh (PW-3) in whose presence the alleged disclosure statements were made and the relevant spots identified and weapon of offence recovered. PW-3 in no uncertain and uncontroverted terms states that police had recorded these memos after returning from the spot where dead body was recovered. Some of these memos were prepared on the spot and some were prepared at Police Post, Nerwa. He could not distinguish which of these memos/statements were prepared on the spot or at Police Post, Nerwa. In no uncertain terms he states that "The disclosure statement regarding the recovery of Danda (Ext. PC) was recorded at the place from where Danda was recovered. I do not know if the police had prepared or not the site plan at the place from where the danda was recovered". Now this totally knocks down the prosecution case with regard to the disclosure statements. Version of the police officials stands materially contradicted.

Further PW-25 states that his investigation revealed that on 2.10.1999 itself accused Roshan Lal had made entry in the diary Ext. PI) that Ratti Ram had died. The same was subsequently scored off. But he also admits that he did not get any independent witness to verify whether such entry was actually made by accused Roshan Lal or not. No hand writing expert has been examined. He also admits that he did not record the statement of Smt. Kali Devi owner of the hotel, where all had consumed liquor in the night of 2.10.1999. He could not state the time when all had consumed liquor. Also there is no other evidence to establish this fact. Significantly he admits that it did not come in his investigation as to where accused and deceased had gone after consuming liquor. He does not specifically state that after consuming liquor deceased and the accused had left the hotel together in the company of each other. Significantly this witness states that the path where the dead body was recovered leads to village Bharanu which is the native place of the deceased. Hence the possibility of the deceased having fallen down the cliff on his way to this place cannot be ruled out.

The hypothesis of the prosecution story that deceased had visited the Forest Rest House at Tharoch to collect his salary on 2.10.1999 on the face of it appears to be false. 2.10.1999 is a national holiday and no salary can be disbursed or collected on this day.

Prosecution wants us to presume that deceased was carrying a sum of Rs. 30,000/- which amount alongwith his salary was to be disbursed to the labourers employed by him for constructing his house at Paonta Sahib. Now except for bald statement of the son and the wife of the deceased there is nothing on record to establish the fact that deceased was actually constructing a house at Paonta Sahib for which purpose he had engaged certain labourers to whom money was to be paid. Also there is nothing on record to show that deceased was possessed with a sum of Rs. 30,000/-. Son Sh. Roshan Lal (PW-1) and wife Smt. Subdha Devi (PW-23) do state that this amount was withdrawn by the deceased from his G.P.F./Bank Account. But then there is no documentary evidence to substantiate his fact. Son admits not to have made inquiries from the Bank as to whether Rs. 30,000/- was actually withdrawn by his father or not. Police could have conveniently collected documentary evidence to this effect.

In this regard prosecution has also examined one Smt. Indra Devi (PW-22) who states that on 1.10.1999 accused had stayed in her house and in the morning of 2.10.1999 he told her that he was going to Tharoch for collecting money which he wanted to disburse to the labourers employed by him at Paonta. We find her to be a planted witness. Her statement was not immediately recorded by the police. That apart, we find her testimony not to be true as PW-23 categorically admits that Smt. Indra Devi is not related to them nor did the deceased visit her house. Then why would he stay with a stranger particularly when there is a Forest Rest House at Tharoch.

It cannot be said with certainty that injuries sustained by the deceased on his scull were actually caused with the danda recovered by the police, which also was not shown to material witnesses in the Court. Possibility of the deceased falling down the cliff and suffering injuries on his head cannot be ruled out at all. Testimony of the Doctor is evidently clear in this regard.

attention has been invited to the statement of Sh. Daulat Ram (PW-2) who states that on 2.10.1999 he had seen the accused and the deceased leaving Forest Rest House together at 5 - 5.30 p.m. At Tharoch he stayed in the house of Sh. Om Prakash, Sh. Sant Ram and Sh. Het Ram, who have not been examined in the Court. Whether this witness was present at Tharoch at all or not has not been conclusively established by the prosecution. But accepting his version to be true even then it would not conclusively establish guilt of the accused and link them to the alleged crime. ''Last seen theory'' would not work in the instant case. There are too many missing links in the chain of events to conclusively establish the guilt of the accused.

We find that the material prosecution witnesses have made several improvements in Court. Their testimonies cannot be relied upon as their creditworthiness is in doubt. We find that the prosecution has not been able to establish its case in the light of principles laid down by the Apex Court in Ramreddy Rajesh Khanna Reddy (supra) and Trimukh Maroti Kiran (supra). The accused have had advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that Court below has incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. Present appeal is thus dismissed. Bail bonds, if any, furnished by the accused are discharged.