Himachal Pradesh High Court
Cr.A No.472/2007 vs Asha Rani And Others on 7 May, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.472 & 504 of 2007 Reserved on : 19.4.2016 .
Date of Decision : May 7, 2016
1. Cr.A No.472/2007 State of H.P. ...Appellant.
Versus Asha Rani and others ...Respondents.
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2. Cr.A No.504/2007 State of H.P. ...Appellant.
rt Asha Rani and others Versus ...Respondents Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes. 1 For the Appellant-State : Mr. R.S. Verma, & Mr. V.S. Chauhan, Additional Advocates General and Mr. Vikram Thakur, Deputy Advocate General.
For the Respondents : Mr. Anup Chitkara and Ms Neha Scott, Advocates in both the appeals.
Sanjay Karol, Judge In relation to the same incident two FIRs, i.e. No.144/2000, dated 24.12.2000 and No.276/2000, dated 25.12.2000 stood registered. Trial Court decided both Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:17:38 :::HCHP
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the cases vide separate judgments. Hence, the State has filed two separate appeals. Since the facts in both the .
cases are same and similar, the appeals are being disposed of by a common judgment. Also evidence is of similar nature.
2. State has appealed against the judgments dated 27.7.2007, passed by learned Additional Sessions of Judge-II, Kangra at Dharamshala, in Sessions Cases No.3- N/VII/2001rt (FIR No.144/2000) & 17-N/2001 (FIR No.276/2000), both titled as State v. Asha Rani and others, challenging the acquittal of the respondents (hereinafter referred to as the accused).
3. It is the case of prosecution that husband of accused Asha Rani was employed somewhere abroad.
Deceased Desh Raj was employed as a Driver with Manoj Sharma (not examined). On the promise that deceased would be provided with a job somewhere abroad, he gave a sum of `1,75,000/- to the husband of accused Asha Rani. However, such promise turned out to be false.
When Desh Raj demanded his money back, accused persons conspired to kill him. Resultantly, on 8.12.2000, accused persons kidnapped deceased Desh Raj from Mukerian, District Hoshiarpur (Punjab) and took him to a ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...3...
remote village in Himachal Pradesh, where, after murdering him, buried his body. Finding his brother to be .
missing, Rajinder Singh (PW-5), made enquiries from Manoj Sharma, employer of Desh Raj, and was informed that the deceased, on a red cycle, had gone to the house of accused Asha Rani. When he went there, he found the red cycle parked outside her house. There he learnt that of Asha Rani had taken the deceased to her parental house.
Since the deceased was not to be found anywhere, rt Rajinder Singh, on 15.12.2000 lodged a missing report (Ex.PW-3/A). On 24.12.2000, he got recorded his statement, under the provisions of Section 154 of the Code of Criminal Procedure (Ex.PW-5/A), disclosing complicity of the accused in the crime, with the police at Police Station, Mukerian (Punjab), on the basis of which FIR No.144/2000, dated 24.12.2000 (Ex.PW-15/A in Cr.A No.504/2007), for commission of offence punishable under the provisions of Section 364 read with Section 34 of the Indian Penal Code was registered, which led to the arrest of accused persons.
4. Investigation conducted by SI Balkar Singh (PW-11) revealed that on 9.12.2000, Baldev Singh (PW-6) had seen Desh Raj and accused Asha Rani board a bus at ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...4...
Mukerian, which was to go towards Pathankot side.
During investigation, on 25.12.2000, accused Asha Rani .
made a disclosure statement (Ex.PW-7/A), in the presence of Baldev Singh (PW-7) and ASI Balbir Singh (PW-10), which led to the recovery of dead body vide Memo (Ex.PW-7/D), in relation to which FIR No.276/2000, dated 25.12.2000 (Ex.PW-8/A in Cr.A No.472/2000), for of commission of offence punishable under the provisions of Section 34 of the Indian Penal Code was registered at rt Police Station, Nurpur, District Kangra, Himachal Pradesh.
5. In custody, on 25.12.2000, accused Rajinder Pal and Bishambar Dass also made disclosure statements (Ex.PW-7/B and 7/C, respectively) to similar effect.
6. The dead body was exhumed and sent for postmortem, which was conducted by Dr. Harinderjit Singh (PW-9), who issued postmortem report (Ex.PW-9/A).
Viscera was preserved by the doctor, which was sent for chemical examination. However, no cause of death could be opined by the doctor.
7. With the receipt of the report of the Forensic Science Laboratory (Ex.PA) and completion of investigation, which prima facie revealed complicity of ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...5...
the accused in the alleged crime, challan was presented in the Court for trial.
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8. Accused were charged for having committed offences punishable under the provisions of Section 364 read with Section 34 of the Indian Penal Code (in Cr.A No.472/2007) and Section 302 read with Section 34 of the Indian Penal Code (in Cr.A No.504/2000), to which of they did not plead guilty and claimed trial.
9. rt In order to establish its case, prosecution examined as many as 11 witnesses (Cr.A No.472/2000) and 21 witnesses (Cr.A No.504/2000) and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were was also recorded, in which they took plea of innocence and false implication.
They also examined two witnesses in their defence.
10. Based on the testimonies of witnesses and the material on record, trial Court acquitted all the accused persons of the charged offences. Hence, the present appeals by the State.
11. We have heard Mr. R.S. Verma, Mr. V.S. Chauhan, learned Additional Advocates General and Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. Anup Chitkara and Ms ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...6...
Neha Scott, Advocates, on behalf of the accused. We have also minutely examined the testimonies of the .
witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper of appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity rt nor any perversity with the same, resulting into miscarriage of justice.
12. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
13. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...7...
the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to .
the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which of the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should rt be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
14. Regretfully, as is required in law, trial Court did not specifically cull out the circumstances, while ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...8...
deciding the cases. Assailing the judgments, learned Additional Advocate General, has pressed the following .
circumstances against the accused:
(a) Accused Asha Rani had a motive to kill the deceased, for her husband had not returned a sum of `1,75,000/- so received by him, on a false promise of getting the deceased a job somewhere abroad.
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(b) Deceased was found missing with effect from 8.12.2000, in relation to which report dated 15.12.2000, stood lodged.
rt(c) On 9.12.2000, deceased was lastly seen in the company of accused Asha Rani, boarding a bus towards Pathankot.
(d) Disclosure statements made by the accused persons, led to the recovery of the dead body.
15. For establishing the circumstances, prosecution refers to and relies upon the testimonies of Rajinder Singh (PW-5), Baldev Singh (PW-6), Baldev Singh son of Chain Singh (PW-7) and police officials ASI Balbir Singh (PW-10) and SI Balkar Singh (PW-11).
16. Now, except for the bald statement of Rajinder Singh (brother of the deceased), we do not find the circumstance of motive to have been established on record. It is not the case of this witness that Desh Raj had given money to Asha Rani. It is his specific case that ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...9...
the money was given to the husband of the said accused.
Now, who is this husband, he does not know. Also when .
was the money given, he does not state. Where and in what capacity the said husband was working abroad is not so disclosed. When was the deceased promised the job? Of what nature? and in whose presence? is also not disclosed. Further this "husband of Asha Rani" has of neither been examined nor arrayed as an accused. If at all money had to be returned it had to be by the husband rt and not accused Asha Rani, who neither received the same nor promised the job. From where did a person employed as a Driver on a truck get the money, has also not been disclosed. Source of money is not clear. It is not the case of this witness that the deceased had borrowed the money. The witness states that the money was arranged by raising loan, but then there is nothing on record to establish such fact. Document, i.e. mortgage deed, only reflects that the property stood mortgaged for a sum of `35,000/-. It is also not the case of this witness that the family was joint. We find that even employer Manoj Sharma has not been examined in Court. Hence, the circumstance of motive cannot be said to have been established on record.
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17. This witness further wants the Court to believe that on 8.12.2000, he was informed by Manoj .
Sharma that the deceased was seen going on a red cycle towards the house of Asha Rani, but then this evidence is hearsay, for Manoj Sharma has not been examined in Court. Why so? remains a mystery.
18. The purpose of visiting the house of Asha of Rani is stated to be demand of money paid to her husband. Red cycle does not belong to the deceased and rt no finger prints of the accused are found on the same either.
19. The genesis of the prosecution story stands unproven, more so for the fact that it is not the case of this witness that he was informed by the deceased of such fact. Also, it is not the case of this witness that he was informed by Manoj Sharma about the same. In fact, testimony of this witness cannot be said to be inspiring in confidence. There are improvements, embellishments, rendering his version to be extremely doubtful. Factum of the deceased going to the house of Asha Rani, on a red cycle, is not so recorded in his previous statement (Ex.PW-5/A), with which he was confronted.
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20. On the circumstance of last seen, as we have already observed, Manoj Sharma was not examined in .
Court and through the testimony of Baldev Singh (PW-6), prosecution wants the Court to believe that on 9.12.2000 at about 12.30 p.m., this witness had seen the deceased and accused Asha Rani board a bus to Pathankot. We do not find the testimony of this witness to be inspiring in of confidence. Now, had he seen the deceased in the company of Asha Rani on 9.12.2000, then why is it that rt such fact was not disclosed to Rajinder Singh (PW-5), for in the missing report dated 15.12.2000, no such fact is recorded. He is a frequent visitor to the house of Rajinder Singh and continued to search the deceased alongwith him. This witness also refers to a third person, i.e. a child, who was accompanying them. Who is this child, remains a mistery.
21. In any event, prosecution has not proved as to whether any bus, at the relevant time, was being plied from Mukerian to Pathankot. The witness does not disclose the number or the make of the bus. Also, whether it was a Government transport or a private transport vehicle, remains undisclosed. Further, prosecution has not been able to establish as to what ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...12...
happened thereafter. Did the accused and the deceased travel together upto Pathankot or not, remains .
undisclosed and from Pathankot whether they went together upto the spot from where the dead body allegedly of the deceased was recovered is also not disclosed.
22. HC Devinder Singh (PW-3) does state that of Rajinder Singh had lodged a missing report, in relation to which he recorded rapat (Ex.PW-3/A).
rt This was on 15.12.2000, but then there is nothing more which advances the prosecution case, proving involvement of the accused, for complicity of the accused is not specifically disclosed in the said document. Significantly, Investigating Officer SI Balkar Singh admits that in the missing report no finger of suspicion was raised against anyone, muchless the accused.
23. We are also of the view that identity of the body recovered by the police itself is in doubt, for none of the prosecution witnesses, much less Rajinder Singh or Baldev Singh 9PW-6) have identified the body to be that of the deceased. According to Dr. Harinderjit Singh, the body was in the advanced stage of decomposition, there were no ante-mortem injuries or fracture or any disease ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...13...
process enabling him to opine about the cause of death.
Constable Balbir Singh (PW-2) simply states that relatives .
of the deceased were present on the spot, but then who were those relatives is not disclosed. Since the body was in a decomposed state, it was incumbent on the part of the prosecution witnesses to establish the manner in which they could identify the body or link the same to the of deceased. (Ravinder Parkash v. State of Haryana, (2002) 8 SCC 426).rt
24. Another circumstance pressed against the accused is the disclosure statements (Ex.PW-7/A, 7/B & 7/C) made by accused Asha Rani, Rajinder Pal and Bishamber Dass, which led to the recovery of the dead body. Accused have examined Raghunath Singh (DW-1), Pradhan of Gram Panchayat Balahar, who categorically states that on 25.12.2000 itself, there was a rumour in the village that a dead body was lying in the Khud. He also went there and at that time 200-250 people were there, however police had not reached till then.
25. Be that as it may, we find there is contradiction in the testimony of the prosecution witnesses. Balbir Singh (PW-2), who is a Constable posted at Police Post, Mukerian (Punjab), states that on ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...14...
25.12.2000, police officials from Himachal Pradesh joined the police party and the dead body of Desh Raj was .
recovered near the Pump House. ASI Balbir Singh (PW-
10) states the recovery to have been effected on 25.12.2000 (Ex.PW-7/D). Site plan (Ex.PW-11/A) prepared on the spot is also of the same date. Through the testimonies of SI Balkar Singh, Baldev Singh (PW-7) and of ASI Balbir Singh (PW-10), prosecution wants the Court to believe that it was only pursuant to the disclosure rt statement that recovery of the dead body was effected.
This was on the asking of accused Asha Rani. Baldev Singh (PW-7), an independent witness to the disclosure statement, states that he signed the papers on 26.12.2000, whereas according to SI Balkar Singh disclosure statement was made on 25.12.2000. Hence, contradictions are glaring.
26. Be that as it may, Baldev Singh (PW-7) states that even on 23.12.2000, accused Asha Rani was seen in the Police Station. At that time other two accused were also present there. Assuming the disclosure statements to be correct, still it cannot be said that the body stood recovered on the basis of such disclosure statements, for it was in the knowledge of the public at large that a dead ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...15...
body was lying at the place from where the recovery was effected by the police. None of the witnesses state that .
the disclosure statements were voluntary in nature and keeping in view the provisions of Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure, the statements cannot be looked into. Not only that, Baldev Singh (PW-7) states that the statements of were made and recorded at the Police Station (Mukerian).
This could not have been so, for accused Rajinder Pal and rt Bishamber, residents of Himachal Pradesh were neither arrested nor is there any transit remand to establish such fact. Also there is doubt with regard to the identity of accused Bishamber, as has emerged from the testimony of ASI Balbir Singh, who identified him to be a person who was in fact Saudagar Mal.
27. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...16...
conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when .
cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
28. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, of convincing and reliable piece of evidence so as to prove that the accused persons in furtherance of their common rt intention kidnapped deceased Desh Raj and thereafter murdered him.
29. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
30. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of ::: Downloaded on - 15/04/2017 20:17:38 :::HCHP ...17...
justice. No ground for interference is called for. The present appeals are dismissed. Bail bonds, if any, .
furnished by the accused are discharged.
Both the appeals stand disposed of, so also pending application(s), if any.
( Sanjay Karol ), of Judge.
( Ajay Mohan Goel ),
May 7, 2016(sd)
rt Judge.
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