Himachal Pradesh High Court
Jasveer vs State Of H. P on 10 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 127 of 2018 a/w connected matters.
Reserved on: 03.11.2023 Decided on: 10.11.2023.
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1. Cr. Appeal No. 127 of 2018 Jasveer .... Appellant Versus State of H. P. ...Respondent.
2. Cr. Appeal No. 316 of 2018 Satish ..Appellant Versus State of H.P. ..Respondent
3. Cr. Appeal No. 570 of 2019 Tek Chand ...Appellant Versus State of H.P. ...Respondent _______________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting? No. _______________________________________________________________ For the appellant(s) : Mr. Ajay Chandel, Advocate, Legal Aid Counsel, for the appellant in Cr.
Appeal No. 127 of 2018
Mr. Ram Murti Bisht, Advocate, Legal Aid Counsel, for the appellant in Cr. Appeal No. 316 of 2018.
Mr. N.S. Chandel, Sr. Advocate, with Mr. Vinod Kumar Gupta, Advocate, for the appellant in Cr. Appeal No. 570 of 2019.
For the respondent: Mr. Navlesh Verma and Ms. Sharmila Patial, Addl. Advocate Generals with Mr. J.S. Guleria, Deputy Advocate General.
1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Satyen Vaidya, Judge All these appeals are being decided by a common judgment as these arise from the judgment of conviction and sentence order dated 21.8.2017/22.8.2017 passed by learned Additional Sessions Judge (CBI), Shimla, Camp at Theog in Sessions Trial No. 23-T/7 of 2013, whereby each of the appellant has been convicted for offences under Sections 302, 392, 201 read with Section 120-B of IPC and have been sentenced as under:
Sr.No. Section Imprisonment Fine In default (Rs)
1. 302 IPC Rigorous 50,000/- Simple imprisonment for imprisonment for life one year
2. 120-B IPC Rigorous 5,000/- Simple imprisonment for imprisonment for 10 years. one month
3. 392 IPC Rigorous 5,000/- Simple imprisonment for 7 imprisonment for years. one month.
4. 201 IPC Rigorous 5,000/- Simple imprisonment for 7 imprisonment for years. one month.
All the sentences have been ordered to run concurrently.
2. The appellants herein alongwith one Kuldeep were tried for aforesaid offences on the allegations that in furtherance of their criminal conspiracy appellants and aforesaid Kuldeep committed murder of Sikander @ Kala on 3 11.11.2012 at Village Jashla in Tehsil Kotkhai of District Shimla and thereafter decamped with a sum of Rs.60,000/- held by the deceased. The murder of Sikander @ Kala was alleged to have been committed by strangulating him to death with the aid of a piece of cloth "Parna".
3. The prosecution had set-up a story that deceased Sikander @ Kala belonged to Tohana in State of Haryana. On 9.11.2012 accused Kuldeep had telephonically contacted the deceased and had called him to Himachal Pradesh for purchase of a vehicle. On 10.11.2012 the deceased had left for Himachal Pradesh with a sum of Rs.1,05,000/- with him. On 11.11.2012, the wife of deceased contacted her husband at about 12.00 noon and she was informed that Sikander @ Kala was with Kuldeep in Himachal Pradesh. Thereafter, she could not make any contact with her husband as his mobile phone was found switched off. As the wife of deceased Sikander @ Kala could not establish any contact with her husband till 15.11.2012, a missing report was submitted to the police at Tohana. The police held some inquiry and found that the mobile location of Sikander @ Kala was lastly found in Kotkhai in District Shimla.
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4. The police officials from Tohana Police Station alongwith brother and a cousin of deceased Sikander @ Kala reached Kotkhai on 27.11.2012. In the meanwhile, the Tohana police had on inquiries found that the deceased had telephonic contact with Kuldeep and on scanning of CDRs of the mobile phone used by Kuldeep it was found that he was in regular contact with the appellant Tek Chand.
5. The Tohana police made contact with Kotkhai police and came to know that on 26.11.2012, two persons namely Jasveer and Tek Chand (Appellants in Cr. Appeal No. 127 of 2018 and Cr. Appeal No. 570 of 2019) had been arrested at Police Station, Kotkhai in relation with FIR No. 67 of 2012 under Section 25 of the Indian Arms Act. On being interrogated with respect to the whereabouts of Sikander @ Kala, both the appellants i.e. Tek Chand and Jasveer allegedly disclosed to the police that both of them alongwith Kuldeep and Satish had killed Sikander @ Kala in the jungle of village Jashla. On such information, police registered case under Section 302 IPC vide FIR No. 68 of 2012 dated 28.11.2012 and started the investigation.
6. On 30.11.2012 police recorded the statement of 5 appellant Tek Chand under Section 27 of the Evidence Act to the effect that the body of Sikander @ Kala was lying at "Dhori Jashla forest' and he could get the same recovered. In the meanwhile, accused Kuldeep had also been arrested and his statement to the same effect was also recorded with the aid of Section 27 of the Evidence Act. On the basis of disclosure statements given by accused Kuldeep and appellant Tek Chand, both of them got recovered the body of Sikander @ Kala from 'Dhori Jashla jungle'. The body was identified from clothes and a ring by the brother of deceased.
7. On inspection of body, one ligature mark was found on the neck. The body was taken into possession. After initial investigation of the spot, the body was sent for postmortem to Civil Hospital, Kotkhai.
8. During further investigation, Tek Chand and Kuldeep further disclosed that the "Parna" with which the strangulation of deceased was caused was lying with Satish, who might have disposed the same for the purpose of concealment of evidence.
9. On 04.12.2012, the brother of deceased had handed over a box with 'Videocon DOST V-1431' inscribed 6 thereon to the Investigating Officer being the box of the mobile phone used by deceased. IMEI number was noted from the documents lying in the box.
10. On the same day i.e. 04.12.2012, Satish disclosed that he had thrown the "Parna" of white colour stained with blood above the house of Tek Chand at Village Jashla and he was having exclusive knowledge of the place where it was hidden. His statement under Section 27 of the Evidence Act was recorded and thereafter at his instance, the recovery of "Parna" was effected from a place which was at a distance of about 250 meters from the house of Tek Chand.
11. On 04.12.2012 itself, the police allegedly made recoveries of the coat/jacket worn by the deceased and his mobile from the house of Tek Chand.
12. The police associated one Kuldeep Bhimta as a witness, who disclosed that on 11.11.2012 four persons i.e. Jasveer, Kuldeep, Satish and Sikander had hired the taxi of Kuldeep Bhimta from Shimla and had de-boarded at place near Kali-Mata temple on Tikker road. He had also disclosed that in addition four other persons were also brought by him from Shimla as passengers. During investigation, the witness 7 Kuldeep Bhimta allegedly identified the accused Jasveer, Satish and Kuldeep as the same persons, who had hired his taxi from Shimla to Kali-Mata temple on Tikker Road on 11.11.2012. He also identified Sikander to be the fourth person accompanying them from the photographs of Sikander shown to him.
13. The Investigating Agency also collected the evidence from the Gaurimal Butail Dharamshala, Shimla in the shape of oral testimony of its employees as also the guest register maintained in the Dharamshala and on the basis of such evidence it was alleged that Jasveer, Satish and Kuldeep alongwith Sikander had stayed in Gaurimal Butail Dharamshala on 9th and 10th and in the morning of 11th November, 2012 they had checked out from the Dharamshala.
14. The autopsy report opined the cause of death being strangulation. The time between the death and postmortem was opined to be between two to three weeks.
15. The Investigating Agency also collected evidence in the shape of photographs and videography. It was also alleged that a sum of Rs.4040/- was recovered from the 8 personal search of Jasveer at the time of his arrest in case FIR No. 67 of 2012. Similarly, Rs.3000/- was recovered from Kuldeep. It was also alleged that Kuldeep had deposited Rs.8000/- in the bank account of one Jage Ram, who was alleged to be the father of Satish. This evidence was collected by the police to allege that the motive to kill Sikander @ Kala was to rob his money, who had been called by the accused persons to Kotkhai with money to have a deal in Charas. It is alleged that all accused persons had conspired to kill Sikander @ Kala for the purpose of robbing his money and as part of conspiracy, they had called Sikander @ Kala from Tohana to Kotkhai.
16. As per the case of police Jasveer, Kuldeep and Satish had visited Kotkhai on 3.11.2012 and thereafter were residing in the house of Tek Chand. On 9.11.2012 Jasveer, Satish and Kuldeep visited Shimla to bring Sikander @ Kala and finally brought him to Jashla to the house of Tek Chand on 11.11.2012.
17. On completion of investigation, challan was presented against all the four accused. They were charged for offences under Sections 302, 392, 201 and 120B IPC. 9
18. During the course of trial, accused Kuldeep absconded. After declaring him proclaimed offender, his trial was segregated. The trial against other three accused was completed. The prosecution examined total 31 witnesses. The appellants were examined under Section 313 Cr.P.C. The learned trial Court has convicted and sentenced the appellants as above.
19. We have heard Mr. N.S.Chandel, Senior Advocate, assisted by Mr. Vinod Gupta, Advocate, appearing for the appellant Tek Chand, Mr. Ajay Chandel and Mr. Ram Murti Bisht, Advocates, appearing for the appellants Jasveer and Satish, respectively and Mr. Navlesh Verma, Ms. Sharmila Patial, learned Addl. Advocate Generals and Mr. J.S. Guleria, learned Deputy Advocate General, appearing for the respondent-State and have also gone through the records of the case carefully.
20. The entire prosecution case rested on circumstantial evidence. Learned trial Court after taking into consideration the material on record, came to the conclusion that the prosecution had been successful in establishing the guilt against the accused persons beyond all reasonable 10 doubts. Learned trial Court had culled out following incriminating circumstances:
"A. The deceased Sikander was missing from 12.11.2012.
B. Recovery of robbed money. C. Disclosure statements made by accused Tek Chand, Kuldeep, Jasveer and Satish and the recovery of dead body from Jashla forest. D. Disclosure statement made by accused Satish pursuant to which there was recovery of Parna stained with blood by which deceased was strangulated.
E. Disclosure statement made by accused Tek Chand pursuant to which he got recovered jacket/coat and mobile phone of deceased Sikander. The sticker classic was affixed on the inner side of the coat/jacket and the mobile phone was of Videocon company. F. The CDRs of the mobile which clearly shows the interaction of accused persons during the period from 09.11.2012 to 30.11.2012 as well as the calls made by accused Tek Chand from sim No. of deceased Sikander. G. Accused Kuldeep, Satish and Jasveer were last seen with deceased Sikander when they hired the vehicle of PW-7 Sh. Kuldeep Bhimta. H. The medical and scientific evidence duly 11 corroborated the prosecution story regarding the murder of deceased Sikander by accused persons on the basis of circumstantial evidence."
21. Though, the learned trial Court found all the circumstances proved, however, we on thorough consideration of entire material on record, have not been able to subscribe to the view taken by learned trial Court. We are of the considered view that the prosecution has failed to discharge its burden by proving the charges against the appellants beyond all reasonable doubts. The incriminating circumstances alleged against the appellants have not been proved in accordance with law.
22. It is trite law that in a case based on circumstantial evidence, each circumstance is required to be proved beyond reasonable doubts and finally, all the proved circumstances should form a complete chain of events leading to only one inference that the offence has been committed, that too, by the persons accused of such commission and none else.
23. The first circumstance that deceased Sikander was missing after 12.11.2012 need not detain us for elaborate 12 examination simply for the reason that none of the appellants had disputed the identity of the body recovered from place in Jashla forest to be that of deceased Sikander. PW-1 being brother of the deceased had identified the body of deceased from apparels and ring worn in the finger. The prosecution had examined the wife of deceased as PW-2, who deposed that she had lost contact with her husband after 12.00 noon on 11.11.2012. She further proved a missing report Ext.PW-2/A lodged by her at Police Station, Tohana. In cross-examination, this witness admitted to have lodged another missing report of her husband, which was exhibited on record as Ext.D-1.
24. As noticed above, since the dead body of Sikander was found in Jashla forest in Kotkhai Tehsil of Shimla District on 30.11.2012 and there being nothing to suggest that missing reports Ext. PW-2/A and Ext.D-1 were subsequently introduced, it can easily be inferred that the deceased had left his home on 9th or 10th November, 2012 and w.e.f. 11.11.2012 he could not be contacted.
25. The second circumstance considered by learned trial Court is with respect to recovery of robbed money. The 13 only evidence available with the prosecution was recovery of Rs.4040/- from appellant Jasveer during his personal search after arrest in FIR No. 67 of 2012 and recovery of Rs.3000/- from accused Kuldeep on his personal search after arrest in the instant case. The recovery of aforesaid amount from two of the accused is not sufficient to infer that it was the money robbed from deceased Sikander @ Kala. The prosecution has not led any legal evidence to bring home such supposition. Another circumstance relied upon by prosecution was that accused Kuldeep had deposited a sum of Rs.8000/- in the account of the father of appellant Satish.
26. PW-6 Krishan Kumar Dhar, Manager, State Bank of India, Kotkhai has been examined to prove a copy of statement of account Ext.PW-6/C of one Jage Ram and one voucher allegedly written in the handwriting of accused Kuldeep Ext.PW-6/D. The handwriting expert opined that the handwriting on receipt Ext. PW-6/E was in the hand of accused Kuldeep. Still, the said evidence does not prove that the money deposited by accused Kuldeep in the account of Sh. Jage Ram was the money looted from Sikander @ Kala. Moreover, prosecution has not established that Sh. Jage Ram 14 in whose account the accused Kuldeep had deposited a sum of Rs.8000/- was the father of appellant Satish. Sh. Jage Ram has not been cited or examined as prosecution witness. Thus, the prosecution had failed to establish that the money found during the personal search of appellant Jasveer and accused Kuldeep and the money deposited by accused Kuldeep in the account of Jage Ram was looted/robbed from deceased Sikander. The missing reports made by the wife of deceased Sikander @ Kala Ext.PW-2/A and Ext.D-1 were totally silent about the cash, if any, carried by deceased while leaving the home. It was by way of the statement made by the wife of deceased as PW-2 in the Court that she introduced the factum of deceased having carried cash of Rs.1,05,000/-. PW-2 had admitted in cross-examination that she had not mentioned the factum of Rs.1,05,000/- in her both the applications submitted to SHO, Police Station, Tohana. Thus, there was no convincing material to suggest that deceased was carrying cash with him. Even otherwise, there was no evidence to identify the cash by numbers or denominations of currency notes, if any, carried by the deceased Sikander @ Kala.
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27. Learned trial Court has further considered the disclosure statements made by the appellant Tek Chand, Jasveer and Satish besides accused Kuldeep and the recovery of dead body of Sikander @ Kala from the Jashla forest as an incriminating circumstance. Notably, the statements of appellant Tek Chand and accused Kuldeep on the basis of which, the dead body was allegedly recovered were recorded at Police Station, Kotkhai on 30.11.2012. The statements are Ext.PW-19/A and Ext. PW-19/B. The recording of both the statements were witnessed by PW-19 ASI Om Krishan and H.C. Roshan Lal, both of whom were at the relevant time posted in Police Station, Kotkhai. The circumstances lead to inference that the statements Ext. PW- 19/A and Ext. PW-19/B were recorded during day time as it was on the same day that the body of deceased was allegedly recovered. It has come in evidence that the Police Station, Kotkhai is not at secluded place, therefore, there is no explanation with respect to non-association of independent witnesses while recording statements Ext. PW-19/A and Ext. PW-19/B. The conduct of investigation in such manner again gives reasons for doubting its fairness. The statement of 16 accused recorded under Section 27 of the Evidence Act is admissible only to the extent it leads to discovery of a new fact. The case of prosecution is that the appellants Jasveer and Tek Chand were in the custody of Kotkhai Police since 26.11.2012 in FIR No. 67 of 2012. On 27.11.2012 they had disclosed to the police about the fact that they alongwith other accused persons had committed the murder of Sikander @ Kala on 11.11.2012 at secluded place in Jashla forest and had looted his money. The Investigating Officer of the case Inspector G.D. Sharma appeared as PW-31 and had categorically stated that on 28.11.2012 during interrogation appellants Jasveer and Tek Chand had disclosed before him regarding the facts those had culminated in the murder of Sikander @ Kala. As per PW-31, they had disclosed that on 11.11.2012 at about 4.00 P.M. Tek Chand, Kuldeep and Satish took Sikander towards the jungle on the back side of the house of Tek Chand under the pretext to purchase charas. As per their plan, Jasveer remained in the house of Tek Chand. Further that Tek Chand, Kuldeep and Satish took Sikander in Dhor Jashla jungle at a distance of about 1 ½ - 2 Kilometers from the house of Tek Chand and after 17 finding a suitable position and place Satish took out his 'parna' and with the help of Kuldeep strangulated Sikander and Tek Chand caught hold the hands of Sikander. Thereafter, accused persons had taken away the jacket, mobile and money of deceased and had thrown the body downwards in the jungle. Hence, the police had become aware about the approximate location where the offence was committed and body was thrown on 28.11.2012 itself. In such view of the matter, it cannot be trusted that police had waited for disclosures to be made by accused persons for recovery of dead body. Such conduct of police defies logic. After knowing the approximate location of offence and placement of body, in all probabilities, the police would have searched the place immediately. The recovery of body on 30.11.2012 at the instance of Tek Chand and Kuldeep becomes highly improbable in light of what has been discussed above. The police had the knowledge regarding commission of offence and the placement of body and hence its alleged recovery on 30.11.2012 at the instance of Tek Chand and Kuldeep does not inspire confidence. Further, it also does not qualify the test to become admissible evidence 18 under section 27 of the Indian Evidence Act as no new fact can be said to have been discovered. The recovery of body in the manner as stated by the prosecution is highly doubtful.
28. Another circumstance relied upon by learned trial Court convicting the appellants is the alleged disclosure statement made by the appellant Satish. Ext.PW-15/B is the alleged disclosure statement of the appellant Satish. On the basis of said statement a blood stained 'parna' was allegedly recovered from a distance of about 250 meters from the house of Tek Chand on the lead provided by the appellant Satish. The recovery of 'parna' was allegedly witnessed by PW-27 Sh. Rakesh Kumar Dogra, Pradhan Gram Panchayat, Deori Khaneti and PW-23 ASI Roshan Lal. The evidence so collected by investigating agency also has been rendered highly doubtful by the other available evidence on record. PW-1 Sunder Singh (brother of deceased) had specifically deposed that he was present on the spot at the time of recovery of dead body of Sikander @ Kala on 30.11.2012. He had identified the dead body from clothes and ring worn by the deceased. He further stated that on the demarcation of accused Satish the police had recovered a white cloth stained 19 with blood which was lying at some distance where dead body was lying. During the course of recording of statement of PW-1, parcel Ext. P-3 was opened and white cloth stained with blood Ext.P-4 was taken out. PW-1 identified the same to be the piece of cloth which was recovered by the police on the spot lying near the dead body of his brother. Even during his cross-examination, PW-1 had stated that 10-11 persons were present at the time of demarcation given by accused Tek Chand and Kuldeep when the police had effected the recovery of dead body and 'parna' (towel). In the light of the statements of other witnesses also, the dead body was recovered at a distance of more than 1 KM from the house of Tek Chand. In case the 'parna' Ext.P-4 had been recovered from near the dead body on 30.11.2012, the need for showing recovery of such material piece of evidence on 02.12.2012 at the instance of appellant Satish creates a serious doubt in the prosecution story.
29. Learned trial Court further placed reliance on the recovery of alleged coat and mobile of deceased Sikander @ Kala from the house of Tek Chand. The prosecution witnesses had clearly stated that the house of Tek Chand 20 had only one small room in which his wife and six children besides Tek Chand were residing. The alleged recovery of coat and mobile of deceased from the house of Tek Chand is shown to have been effected on 04.12.2012. Admittedly, Tek Chand was in custody since 26.11.2012 in FIR No. 67 of 2012 and his custody was transferred in FIR No. 68 of 2012 on 28.11.2012. There is no material to suggest that who had been resided in the house of Tek Chand after the registration of case of murder against him. It is also not the case of prosecution that any search of his house was effected before 04.12.2012. Further, there is no evidence that on 04.12.2012 at the time of recovery of coat and mobile phone of deceased Sikander @ Kala, the family members of Tek Chand were present. In fact, the wife of Tek Chand has not been cited as a witness. In such circumstance, the recovery of coat and mobile phone of deceased Sikander @ Kala from the house of Tek Chand cannot be said to be beyond suspicion. After registration of FIR No. 68 of 2012 on 28.11.2012 the house of Tek Chand was accessible to anyone and planting of any evidence in such circumstances cannot be ruled out.
30. Learned trial Court also relied upon the 21 circumstances that the deceased was last seen in the company of Jasveer, Kuldeep and Satish on 11.11.2012. Reliance has been placed on the statement of PW-7 Kuldeep Bhimta, who allegedly had brought Jasveer, Kuldeep and Satish alongwith Sikander from Shimla to Kali Mata Temple on Tikkar Road in his cab. The record reveals that the factum of hiring of the vehicle of PW-7 Kuldeep Bhimta had come to the notice of police on 28.11.2012 itself as is recorded in FIR Ext. PW-31/A. Record further reveals that the witness Kuldeep Bhimta was associated in the investigation by the Investigating Officer on 02.12.2012 for the first time. It is highly improbable that the Investigating Officer having acquired the knowledge about an eye witness who had seen three of the accused with deceased Sikander, that too, on the same day when the alleged murder was committed, would not immediately associate such an important witness. PW-7 Kuldeep Bhimta while deposing before the Court had stated that after 15-20 days when the accused and deceased had hired his taxi, he was called to Police Station, Kotkhai where he had identified three accused persons and deceased in photographs shown to him by the police. He had come to 22 know about their names in the police station. Though, PW-7 was cross-examined by learned Public Prosecutor, but he was not confronted regarding this important aspect. Therefore, the conviction of appellants on the basis of such feeble evidence will not be appropriate and legal. All the suspects were in custody of police by 2nd of December, 2012. At that stage, their identification parade was not conducted in accordance with law and were not got identified from PW-7 Kuldeep Bhimta. The conduct of police in calling PW-7 after 15-20 days of the incident to the Police Station and then showing him the accused and photographs of deceased, brings the investigation under the cloud of suspicion.
31. There is another missing link in the prosecution evidence. The mobile phone of deceased allegedly recovered from the house of Tek Chand on 04.12.2012 has not been subjected to technical analysis and its data does not appear to have been retrieved; as no such evidence has been brought on record. This firstly could have proved the ownership of mobile phone to be that of deceased and secondly the call details could have been verified.
32. Though, the prosecution relied upon the call 23 details of different mobile phones, the ownership or possession of which were attributed to the accused and deceased, yet nothing substantial has been proved. There is no evidence that from which locations the alleged calls, if any, were exchanged between the mobile phones allegedly used by the accused persons and deceased.
33. PW-4 and PW-5 S/Sh. Paras Ram and Het Ram were examined as employees of Lala Gauri Mal Butail, Dharamshala, Shimla. PW-4 proved on record the extracts of the visitors register maintained at Dharamshala as Ext. PW-4/A and Ext.PW-4/B. According to him, three persons namely Ashok Kumar, Rajbeer and Kuldeep stayed in Room No. 39 of Dharamshala on 9th & 10th November, 2012 and they all of checked out on 11.11.2012 at 7.10 A.M. In his cross-examination, PW-4 admitted that he had not taken identity proof from the persons who had booked the room. He also admitted that Ashok Kumar had signed the register at the time of checking out the room. To similar effect is the statement of PW-5. He stated that room No. 39 was booked by Ashok Kumar and two other persons namely Rajbeer and Kuldeep R/o Village Ashangas, District Fatehbad (Haryana). 24 They had checked out on 11.11.2012 at 7.10 A.M. In examination-in-chief of PW-5 Het Ram, one line appears as "All the three accused have been rightly identified today in the Court". On the basis of this part of the statement, it has been asserted that PW-5 had identified the accused persons to be the same persons who had booked room No. 39 on 9th & 10th November, 2012 in Gauri Mal Butail, Dharamshala, Shimla.
34. We are not convinced with such argument as no such identification had been got done by the witness himself. Even otherwise, the identification of accused persons in the Court for the first time has to be looked at with suspicion. In case the investigating agency was aware that the witness could identify the accused, the procedure for identification could easily have been undertaken by conducting test identification parade at the earliest. PW-4 had not stated anything regarding identification of the accused. The persons, who had taken the room in Gauri Mal Butail, Dharamshala, Shimla were having the names as Ashok Kumar, Rajbeer and Kuldeep, whereas, the names of accused are Jasveer, Satish and Kuldeep. Merely by the fact that the name of Kuldeep was identical in both the cases, cannot lead 25 to inference of fact that the accused were the same persons, who had booked the Gauri Mal Butail, Dharamshala for stay. Further, there is no evidence that Sikander had also stayed in Gauri Mal Butail, Dharamshala, Shimla, whereas the allegeation of prosecution was to that effect also.
35. In light of above discussion, the evidence led by the prosecution has been found deficient in order to satisfy the requirement of proof beyond reasonable doubt. None of the circumstances relied upon by prosecution had been proved beyond reasonable doubt and it is not a case where the proved circumstances had created a chain of circumstance from which the inference as to guilt of accused persons could be inferred.
36. In result, the appeals are allowed. Judgment of conviction and sentence order dated 21.8.2017/22.8.2017 passed by learned Additional Sessions Judge (CBI), Shimla, Camp at Theog in Sessions Trial No. 23-T/7 of 2013, are set- aside. All the appellants are ordered to be acquitted of all the charges and are ordered to be set free forthwith in case not required in any other matter, subject to their furnishing requisite bonds under Section 437-A of the Criminal 26 Procedure Code, to the satisfaction of learned Registrar (Judicial) of this Court in the sum of Rs.50,000/- each undertaking therein specifically that in case of appeal being filed before the Hon'ble Supreme Court against the judgment passed by this Court and being ordered to appear before the said Court, the appellants will immediately appear and will abide by further directions of such Court.
37. The appeals stand disposed of in the aforesaid terms, so also the pending miscellaneous application(s) if any.
(Tarlok Singh Chauhan)
Judge
10th November, 2023 (Satyen Vaidya)
(GR) Judge
GANGA Digitally signed by GANGA RAM
SHARMA
DN: C=IN, O=HIGH COURT OF
HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH
RAM SHIMLA,
Phone=53d793b89e8f7ed22df51a99c48
5c30e69ef93029aa64cf7f7477f3ea023b5 fe, PostalCode=171001, S=Himachal Pradesh, SHARM SERIALNUMBER=8d8cfd67531d5f7cf98 b98478b7c873db362a2c10726a8f44f89d 8ea8ad55e1d, CN=GANGA RAM SHARMA Reason: I am approving this document A Location:
Date: 2023-11-10 12:19:36