Himachal Pradesh High Court
State Of Himachal Pradesh vs Kuldeep Singh & Others on 5 September, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.330 of 2012 Date of Decision : September 5, 2016 .
State of Himachal Pradesh ...Appellant.
Versus Kuldeep Singh & others ...Respondents. Coram:
of The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.Whether approved for reporting? No. 1
rt For the Appellant : Mr. V.S. Chauhan, Advocate General.
Additional For the Respondents : Mr. Devinder K. Sharma, Advocate.
Sanjay Karol, Judge On 1.1.2010, Vidya Devi (PW-4) noticed a dead body, behind her house. She immediately informed Sunil Kumar (PW-1), who reached the spot and identified it to be that of his cousin Manoj Kumar. Information thereof, on telephone, was furnished to the police and Inspector Ranjeet Singh (PW-25) reached the spot, where he recorded statement of Sunil Kumar, under Section 154 of the Code of Criminal Procedure (Ex.PW-1/A), and based Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:09:38 :::HCHP
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thereupon, FIR No.2/2010 was registered at Police Station, Sarkaghat. In the said statement, he expressed his suspicion of involvement of accused Kuldeep Singh .
(accused No.1) son of Sunder Singh (accused No.2), by disclosing an incident, which took place sometime in the month of November, 2009.
2. With the preparation of inquest report, dead of body was sent for postmortem, which was so conducted by Dr. Desh Raj Sharma (PW-16) and report (Ex.PW-16/D) rt taken on record. On suspicion, accused were arrested and on 3.1.2010, accused Kuldeep Singh made a disclosure statement (Ex.PW-9/B), in the presence of Balbir Singh (PW-9), which led to the recovery of weapon of offence, i.e. iron rod (Ex.PW-9/G), vide memo (Ex.PW- 9/E), in the presence of very same witness. Investigation further revealed that all the accused, after committing murder of the deceased in the night intervening 31.12.2009/1.1.2010, removed the dead body from the spot of crime and threw it at another place with an intent of destroying the evidence. During the course of investigation, one unlicenced weapon of offence, i.e. Khukhri, also came to be recovered by the police. ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP
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3. Investigation further revealed that on 22.11.2009, accused Kuldeep Singh had resisted the marriage of Asha Devi (PW-10) and at that time extended .
threats of killing the groom, i.e. the deceased. Further, on 31.12.2009 at about 5.30 p.m., accused Kuldeep Singh consumed liquor with the deceased, in the shop of Vishal Thakur (PW-5), when they had an altercation, which also of came to be noticed by Vinod Kumar (PW-12). After the incident, accused Kuldeep Singh left for his house but the
4. rt deceased followed him.
During the course of investigation, police recovered Khukhri and blood stained clothes of the accused from Sarla Devi wife of accused Sunder Singh. Incriminating articles were sealed and sent for chemical analysis and report of the Forensic Science Laboratory (Ex.PX) obtained by the police.
5. With the completion of investigation, challan was presented in the Court and accused charged for having committed offences, punishable under the provisions of Sections 302 read with Section 201 IPC, 120-B IPC and 27-54-59 of the Arms Act. ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP
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6. Finding the prosecution not to have established its case, through the testimonies of 25 witnesses, all the accused stand acquitted, on all counts, .
by the Court below. Findings of fact and the reasoning adopted, in terms of judgment dated 21.1.2012, passed in Sessions Trial No.39/2010, titled as State of Himachal Pradesh v. Kuldeep Singh & others, are subject matter of of challenge in the present appeal, so filed by the State, under the provisions of Section 378 of the Code of
7. rt Criminal Procedure.
Trial Court, in Para-32 of the judgment, has taken into consideration three circumstances. However, before this Court, following circumstances are vehemently pressed in support of the prosecution case:
(a) recovery of dead body, (b) threats extended by accused Kuldeep Singh to Asha Devi (PW-10) and her husband Manoj Kumar (deceased) on 22.11.2009, (c) altercation, which took place between the deceased and accused Kuldeep Singh on 31.12.2009, i.e. one day prior to the recovery of the dead body, (d) in police custody, on 3.1.2010, accused Kuldeep Singh made a disclosure statement (Ex.PW-9/D), which led to the recovery of ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...5...
weapon of offence, i.e. iron rod (Ex.PW-9/G), vide recovery memo (Ex.PW-9/C), in the presence of Balbir Singh (PW-9), and (e) recovery of Khukhri and clothes of .
the accused in the presence of Balbir Singh, vide recovery memo (Ex.PW-9/H).
8. Identity of the deceased is not in dispute. Dead body came to be first noticed by Vidya Devi, behind of her house. It was on 1.1.2010 at about 8 a.m. She in turn informed Sunil Kumar (PW-1), who reached the spot rt and identified the dead body. Damodar Dass (PW-11) and Khayali Ram (PW-13) also reached the spot and have testified to such fact.
9. It has come in the testimony of Sunil Kumar as also Inspector Ranjeet Singh (PW-25) that when the matter came to be reported, police reached the spot and prepared inquest report. Dead body was sent for postmortem, which was conducted by Dr. Desh Raj Sharma, who proved postmortem report (Ex.PW-16/D). According to the doctor, deceased died due to severe head injury, resulting from a sharp edged weapon, leading to haemorrhagic shock. Significantly, probable time gap between the injury and death has been opined ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...6...
to be 5-10 minutes. The doctor has opined that injuries could have been caused, both with a Khukhri (Ex.PW-9/K) as also iron rod (Ex.PW-9/G). But, he is also of the view .
that contents of ethyl alcohol were found in the body parts of the deceased, which were sent for ascertaining the view of the Expert(s). Significantly, this doctor also examined accused Kuldeep Singh and found five simple of injuries on his person, which could have been caused with fist blows in a scuffle.
10. rt With regard to the alleged threats extended by accused Kuldeep Singh, at the time of solemnization of marriage of the deceased, our attention is invited to the testimonies of Sita Ram (PW-3), Nirmla Devi (PW-6), Hari Ram (PW-7), Damodar Dass (PW-11) and Satish Kumar (PW-18), all being family members, mediator or close relatives of the deceased.
11. Now significantly, it is not the case of these witnesses that accused Kuldeep Singh had any liking for Asha Devi (PW-10) or that he had wanted to get married to her. Marriage between Asha Devi and deceased came to be solemnized on 23.11.2009. Conjoint reading of their testimonies reveals major contradictions with regard ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...7...
to the manner in which threats came to be extended. Whereas, Asha Devi wants the Court to believe that such threats were extended on telephone, but other witnesses .
state that accused did it in person as he was present on the spot. In any event, what was the motive of extending such threats has not emerged on record. In fact, one finds that these witnesses have made several of improvements, rendering their version to be extremely doubtful and the witnesses to be wholly unreliable.
12. rt Significantly, Asha Devi wants the Court to believe that deceased was under tension on account of unemployment, which perhaps was the cause of hostile attitude of the deceased. In fact, she was declared hostile and cross-examined by the learned Public Prosecutor, yet nothing fruitful could be elicited from her testimony, clearly establishing the fact in issue.
13. Noticeably, in the testimony of Damodar Dass, it has come on record that there was prior animosity inter se the deceased and the accused. There was both civil and criminal litigation inter se the parties. Now, animosity is a double edged sword and testimonies of the witnesses cannot be discarded, solely on that ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...8...
account. But then, they are required to be appreciated with circumspection and, if necessary, with corroboration.
14. Having perused the testimonies of these .
witnesses, one cannot say that this circumstance stands established by the prosecution.
15. Further, what transpired between 22.11.2009 and 31.12.2009 has not been disclosed by the of prosecution. It is not the case of anyone of the prosecution witnesses that accused Kuldeep Singh rt continued to express his hostility and with vigour extended threats and un-relentlessly intimidated the deceased or anyone else.
16. The next circumstance pressed by the prosecution is sought to be established through the testimony of Vishal Thakur (PW-5) and Vinod Kumar (PW-
12). Prosecution wants the Court to believe that on 31.12.2009 at about 5.30 p.m., deceased and accused consumed liquor outside the shop of Vishal Thakur, whereafter they scuffled with each other, as a result of which both sustained injuries. Thereafter, accused Kuldeep Singh left for his house, but deceased followed him.
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17. Crucially, Vinod Kumar refers to the presence of a third person, i.e. Neelu on the spot. Who is this Neelu, remains unexplained. His role in the crime has .
also not been ruled out.
18. Though Vishal Thakur, in the examination-in- chief part of his testimony, does state such fact, but however, when confronted with his previous statement of (Ex.PW-25/G), recorded under the provisions of Section 161 of the Code of Criminal Procedure, one finds that the rt factum of the accused having consumed liquor in front of his shop not to have been recorded therein. Further his version of accused Kuldeep Singh having left the shop, while abusing the deceased, is only a piece of exaggeration, for it not to be recorded in his previous statement, with which he was confronted.
19. Be that as it may, one fact stands established from the testimonies of these witnesses and that being presence of both Manoj Kumar (deceased) and accused Kuldeep Singh on the spot, and some scuffle having taken place between them. But then, this fact alone is not determinative of any motive of crime. It was accused Kuldeep Singh, who had left the shop of Vishal Thakur ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...10...
prior in point of time. At that time, it was 6.30 p.m. Deceased did follow him, but then there is nothing on record to establish that thereafter deceased caught up .
with Manoj Kumar. There is no evidence necessary to complete the link in the chain, establishing as to what happened between the time accused Kuldeep Singh left the shop of Vishal Thakur and dead body of the deceased of came to be recovered. Where all did the accused or deceased go, remained unestablished. Significantly, Asha rt Devi admits that village Nagla, for which place her husband had allegedly left is other than the one leading to her village Rehdu.
20. Hence, the link in the chain, at this juncture, stands snapped.
21. While dealing with the next circumstance, i.e. disclosure statement (Ex.PW-9/D) and recovery of iron rod (Ex.PW-9/G), we do not find the testimony of Balbir Singh (PW-9) and Inspector Ranjeet Singh (PW-25) to be inspiring in confidence. In fact, statement of Balbir Singh is self-contradictory. In the earlier part of his statement, he does state that on 3.1.2010, accused Kuldeep Singh made a disclosure statement (Ex.PW-9/D), which led to ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...11...
the recovery of weapon of offence, i.e. iron rod, vide Memo (Ex.PW-9/E). But then, in the cross-examination part, he totally contradicts himself by stating that first, .
police went to the spot (Gredy Khud), from where weapon of offence was recovered and only thereafter, proceedings for preparation of documents {Ex.PW-9/D and 9/E (9/G)} came to be conducted.
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22. There is yet another material contradiction, which has emerged on record. Inspector Ranjeet Singh rt wants the Court to believe that he called the witnesses to the Police Station, where the disclosure statement came to be made and recorded, whereas according to Balbir Singh he met the police at Rain Shelter Nagla. Now, this contradiction cannot be ignored at all. The disclosure statement ought to have been made in the presence of independent witnesses, which cannot be said to have been so made and as such, recovery of the weapon of offence cannot be said to have been effected as a result of such disclosure statement. Also, there is material contradiction with regard to the time of recording of such disclosure statement. Whereas, Balbir Singh states that it came to be recorded at 2-2.30 p.m., but Vishal Singh ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...12...
wants the Court to believe that it was so done at 10 a.m., whereafter only police left for the spot at 11 a.m.
23. It is not the case of prosecution that Khukhri .
or clothes of the accused came to be recovered, pursuant to disclosure statements made by any one of the accused. Prosecution wants the Court to believe, through the testimony of Inspector Ranjeet Singh and Balbir of Singh, that such articles came to be handed over to the police by Sarla Devi wife of accused Sunder Singh. But, rt Sarla Devi has not been examined in Court. either an accused, for being aware of the concealment of She was weapon of offence or a very material witness. Why it is that the investigating agencies did not associate her or prosecution examine her in Court, remains a shrouded secret.
24. Further, what is there to link the clothes and the Khukhri to the accused, has not come on record. Accused were not made to wear the clothes. Witnesses also do not state that the clothes were of the size of the accused. Also, these clothes were not shown to Vishal Thakur and Vinod Kumar, who could have at least deposed, whether accused Kuldeep Singh was wearing ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...13...
them or not. Also, no fingerprints of any one of the accused were found on the Khukhri.
25. Furthermore, scientific evidence (Ex.PW-15/A .
& 16/E) does not establish any stains of blood on the weapon of offence or clothes of accused Kuldeep Singh. DNA profiling was also not got done.
26. Noticeably, accused has been able to explain of the injury on his person. Balbir Singh admits that accused Sunder Singh had informed the police that while cutting rt nail of foot, his son accused Kuldeep Singh sustained injury, which led to the falling of few drops of blood. Also, such injury was brought to the notice of the police. It appears that the blood drops so fallen on the earth were picked up by the police only to establish that the dead body of the deceased was removed from one place to another.
27. In any event, there is no evidence linking accused Sunder Singh and Pradeep Singh to the crime or charged offences.
28. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they stand ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...14...
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 conclusively established, leading only to one conclusion, i.e. guilt of the accused.
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29. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, rt convincing and reliable piece of evidence so as to prove that the accused persons conspired to commit an offence and in prosecution of such conspiracy committed murder of deceased Manoj Kumar and removed his dead body in order to destroy evidence and also were in possession of Khukhri (an arm which cannot be possessed without licence).
30. 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.
31. The accused have had the advantage of having been acquitted by the Court below. Keeping in ::: Downloaded on - 15/04/2017 21:09:38 :::HCHP ...15...
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 justice. No ground for interference is called for. The of present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
rt Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Ajay Mohan Goel ),
September 5, 2016(sd) Judge.
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