State of Himachal Pradesh vs Thakur Singh

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment, dated 28.06.2003, delivered by the learned Sessions Judge, Kinnaur at Rampur Bushaher, H.P. in Sessions Trial No. 23of 2002, whereby he acquitted the accused of having committed an offence punishable u/s 302 I.P.C., but convicted him of having committed an offence punishable u/s 379 of I.P.C. As far as the conviction u/s 379 IPC is concerned, the same has not been challenged by the respondent and therefore, we confine the discussion to the offence u/s 302 of I.P.C. only The undisputed facts are that accused Thakur Singh was employed with Sh. Gianpur, deceased. It is also not disputed that both of them had proceeded from village Yangpa towards Sirmaur for the purpose of grazing the sheep and goats. On 16th October, 2001, a telephonic information was given by Layak Ram to police station Jhakhri to the effect that the dead body of one person is lying at Kundludhar Jungle and it is not clear whether this person has fallen down or he has been killed. On receipt of this information, the same was recorded in the daily diary at serial No. 6 which is EX. PW13/A.

Thereafter, the police went to the spot and recorded the statement of PW-1 Sh. Maya Ram. There is some dispute as to whether the statement was recorded immediately when the police reached the spot on 16.10.2001 or later. But for the purposes of this appeal that question is not very relevant. According to Sh. Maya Ram, deceased Gianpur who was his father-in-law, had taken his sheep and goats alongwith the accused, Thakur Singh, towards Sirmaur. On 15.10.2001, at about 7.P.M., PW-3( Ram Pal) informed PW-1( Maya Ram) that his father- in- law, Gianpur, had died after vomiting blood at Kandludhar. He also stated that on the grazing ground near Kandludhar no sheep and goats were there. On receipt of this information, Maya Ram (PW1) alongwith some relatives reached Kandludhar and found that his father-in-law had been hit with a stone on his head and that blood has oozed out from his nostrils, mouth and head. They searched for the goats and sheep as well as for Thakur Singh but could neither find any goats and sheep nor could find Thakur Singh and therefore, Maya Ram suspected that his father-in-law had been killed by Thakur Singh. On the basis of this statement, FIR, EX.PW16/A, was lodged and the police went to the spot.

After investigation, the accused was challaned for having committed murder of deceased Gianpur and having committed the theft of sheep and goats. The accused pleaded not guilty and claimed trial. The learned Sessions Judge, after trial, has acquitted the accused. Hence, this appeal by the State.

There is no eye witness to this incident and the case is based on circumstantial evidence. The law is extremely well settled that when a criminal case is based on circumstantial evidence the prosecution must prove all the circumstances and link them in such a fashion that they lead only to one irresistible conclusion i.e the guilt of the accused and furthermore there is no probability of any person other than the accused having committed the offence. It is only if the circumstantial evidence is linked in such a manner that conviction of the accused can be rendered.

In the present case, the circumstantial evidence relied upon by the prosecution are as follows:

i) Last Seen

ii) Recovery of the sheep and goats from the accused.

As far as the first circumstance i.e "Last Seen" is concerned, the prosecution case itself is that the accused was an employee of the deceased. It is also the case of the prosecution that the deceased and the accused had proceeded towards Sirmaur for grazing goats and sheep. Therefore, there was nothing wrong in the two being "Last seen" together and this by itself would not be a sufficient circumstance to raise any influence regarding the guilt of the accused.

Furthermore, PW1, Maya Ram, in his own statement has stated that accused, Thakur Singh, had proceeded with the goats and sheep towards Sirmaur on 12th October, 2001 and Gianpur left for Sirmaur on 14th October 2001 i.e after two days. According to this witness on 15th October, 2001 at 7.00 P.M. PW-3, Rampal told him that dead body of deceased Gianpur was lying near Kundludhar. In cross examination, he states that PW-3 Ram Pal told him that deceased had died due to vomiting of blood. Whereas, in the statement EX.PW1/A, it was stated that no sheep and goats were found, in cross examination in Court, the witness admitted that he had been informed by PW-3, Ram Pal, that 40 sheep and goats were found at some distance and were brought by Inder Singh to a place near the deceased. But, when they reached the place of incident, sheep and goats were not available.

Ram Pal was examined as PW-3 and according to him, he had employed Inder Singh as a servant. Ram Pal further states that on 14th October, 2001, deceased Gianpur met him at Kandludhar and he saw Thakur Singh, accused, alongwith Gianpur moving ahead and they left the side, of the National Highway and went a few yard upwards into the hill towards Thach. Next day on 15.10.2001, deceased Gianpur was found dead in his Dera by Inder Singh. Inder Singh informed Rampal about this fact. Inder Singh, who was the first person who saw the dead body of Gianpur, has not been examined. Ram Pal (PW3) in his statement states that Inder Singh brought the sheep and goats of deceased Gianpur and kept them in the Dera of Gianpur. Ram Pal (PW3) tried to inform the family members of deceased from Sarahan about the incident but due to fault in the telephone lines, could not do so, and he thereafter went to Jeori to telephone the residential house of the deceased, where again the telephone lines were out of order and thereafter Ram Lal went to the village of deceased Gianpur and informed his relatives about the death of Gianpur.

PW-2 is Shyam Sukh, nephew of deceased Gianpur. According to him, one Gau Chand had told him that his Uncle had died due to vomiting of blood. It is not explained who was this person Gau Chand and he has also not been examined. Similarly Inder Singh has also not been examined and there is no plausible explanation for his non examination.

Admittedly, PW-1 and the relatives reached the Dera at 7.A.M on 16.10.2001. The explanation by PW-1 is that during the night they could not trace out the dead body. This does not appear to be correct since according to PW-3 Ram Pal, Inder Singh had told him that GianPur was lying dead in his Dera. A Dera is normally a small place where either a temporary hut is made or a small structure of stones is created where shepherds stay at night. Even if there is no proper structure, a Dera is identifiable. There is another contradiction in the version of Ram Pal and Maya Ram. According to Maya Ram, when they reached the spot they found no goats and sheep, but, according to Ram Pal, according to Ram Pal when they reached the spot a number of sheep and goats were recovered from the surrounding area.

It would be pertinent to mention that PW-3 in his statement has clearly stated that when he met Gianpur at Kandludhar on 14.10.2001, he was informed by Gianpur that Thakur Singh (acccused) had received a telephonic call from his house and was to leave for his village. PW-1 in his cross examination has stated that Thakur Singh accused had also his own sheep and goats. He could not admit or deny the suggestion that the goats and sheep of the accused were also to go along with the sheep and goats of deceased Gianpur to Sirmaur for grazing. No doubt, it is in the evidence of PW-5 Ashok Kumar that he had transported about 33 sheep and goats in his tempo at the instance of Thakur Singh. PW-6 also states that he had purchased 16 sheep and goats from Thakur Singh. On these sheep and goat the figure "U" had been marked. As per PW-1 and other prosecution witnesses, the sheep and goats belonging to Gianpur were identified by mark "V". Therefore, recovery of the sheep and goats having mark "U" indicate that they belong to some other person.

Though the conviction of the accused has not been challenged before us, we are of the view that it does not stand clearly proved that he had stolen the goats and sheep belonging to Gianpur. Even assuming that the sheep and goats were stolen by the accused and assuming that this circumstance is proved, this circumstance, by itself could not be sufficient to hold that it was the accused who committed the murder of the deceased. Even if he had stolen the goats and sheep, the possibility of the deceased being murdered by some other person can not be ruled out. In these circumstances, we find no merit in the appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged.