Himachal Pradesh High Court
Hari Ram Bahadur vs The State Of H.P on 20 September, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeals No. 212, 213 & 394 of 2017 Reserved on: 30.08.02018 .
Decided on: 20.09.2018 __________________________________________________________ Cr. Appeal No. 212 of 2017:
Hari Ram Bahadur .....Appellant.
Versus
The State of H.P. ......Respondent.
Cr. Appeal No. 213 of 2017:
Geeta ....Appellant.
Versus
The State of H.P. .....Respondent.
Cr. Appeal No. 394 of2017:
Kishan ....Appellant.
Versus
The State of H.P. ....Respondent.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
__________________________________________________________ For the appellant(s) in Criminal Appeals No. 212 & 213 of 2017: Ms. Richa Thakur, Advocate, Legal Aid Counsel.
For the appellant in
Criminal Appeal No. 394
Of 2017: Mr. Lalit K. Sehgal, Advocate.
For the respondent in all
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 2the appeals: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocates General with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Deputy Advocates General.
.
Chander Bhusan Barowalia, Judge.
The present appeals have been preferred by the appellants/accused/convicts (hereinafter referred to as "the accused persons") laying challenge to judgment, dated 01.04.2017, passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 31 of 2014, whereby the accused persons were convicted for the offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as "the IPC").
2. The facts which are necessary for the purpose of adjudication of the present appeals are that accused No. 2, Kishan, is cousin of accused No. 1, Hari Ram Bahadur, and accused No. 1 is husband of accused No. 3, Geeta. The accused persons, who are Nepali nationals, and the deceased (Narayan Bahadur) was also a Nepali national, came to village Dalash for earning their livelihood.
The accused persons and the deceased started working as labourers in orchards. In the month of April, 2014, the accused couple and the deceased started residing together in a room at Dalash and accused Kishan started living in a different accommodation. The ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 3 deceased, during his stay with the accused couple, developed illicit relations with accused No. 3 and it came in the knowledge of accused No. 1, when he saw the deceased and accused No. 3 in the .
room in compromising condition. Thus, it resulted into hostile relations between the deceased and accused No. 1. Subsequently, one Shri Bhagwan Prakash (complainant), on the request of the deceased, employed him in his orchard and also gave him a separate room in his house located in Dalash. A week prior to the incident, accused No. 1 met the complainant in Dalash market and expressed his rancor for the deceased. Accused No. 1 informed the complainant about the illicit relations of the deceased with his wife, but the complainant informed him that the deceased told him that accused No. 3 is like his sister. On this, accused No. 1 further divulged to the complainant that he himself saw the deceased and accused No. 3 in compromising condition. After 3-4 days, the deceased came to the complainant and told that during the night 2-3 Nepali persons were searching for him and he apprehended that they came to assault him. So, the deceased started residing in the complainant's house at Buni. It has further come in the prosecution story that on 29.04.2014 the deceased took `11,000/- from the complainant, which he intended to send, through someone, to his home. As per the allegations, accused No. 1 hatched a conspiracy ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 4 with his wife (accused No. 3) and accused No. 2 to kill the deceased and on 01.05.2014 the deceased was called to the residence of accused No. 1 at Dalash. The deceased, without apprehending any .
threat to his life, went to the residence of accused No. 1 and 3. The deceased alongwith accused No. 3 went to the market for bringing chicken. Subsequently, as per the conspiracy, accused No. 1 and 2 started taking liquor with the deceased and large quantity of liquor was administered to the deceased. In the course of taking liquor, all the accused persons assaulted the deceased. Accused No. 1 thrashed the deceased with a stick, accused No. 2 gave beatings with leg and fist blows and accused No. 3 gave a blow with a scythe.
Pursuant to the severe beatings, the deceased sustained multiple grievous bleeding injuries and finally he succumbed to his injuries.
Thereafter, as per the prosecution case, the accused persons shifted the dead body of the deceased from the room and threw the same in an orchard located at some distance. The room was cleaned by accused No. 3 and she also wiped the blood from the floor of the room with a jute sack, which was thrown into the bushes.
Thereafter, the accused persons fled away.
3. On the subsequent morning, the dead body was noticed by the people and the matter was reported to the police by village Chowkidar. Thus, a police team rushed to the spot and in the ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 5 interregnum the complainant came to know about the murder of the deceased, so he also went to the spot. Inquest proceedings were conducted by the police and the investigation ensued. Police .
recorded the statement of the complainant under Section 154 Cr.P.C. and a case was registered against the accused persons. Site plans were prepared and the spots were photographed. Police took into possession the blood soiled earth, earth from the place of recovery of the dead body, samples of blood from the road, the stairs leading to the room, the floor and walls of the room of accused No. 1 and 3 were also taken and same were sealed in parcels. Police also took into possession the blood soiled jute sack, which was found near the residence of accused No. 1 and 3. Thereafter, the dead body was sent to Civil Hospital, Anni, for postmortem examination.
Dr. Bhagwat Mehta conducted the postmortem examination and handed over to the police preserved jars of viscera and blood sample of the deceased.
4. Subsequently, the police initiated search operation and on the same day, i.e., 02.05.2014, the accused persons were arrested from Gugra forest, which is about 20 kilo meters from Dalash. On 04.05.2014, accused No. 1 made a disclosure statement and got recovered a wooden stick with which he assaulted the deceased. He also got recovered tiffin in which he had consumed ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 6 alcohol, showed the place where he alongwith his co-accused threw the dead body of the deceased. Accused No. 1 also divulged to the police that he is wearing the same clothes, which he was wearing at .
the time of the incident. His clothes were found to have blood patches. Accused No. 2 showed a dhabha where, on 01.05.2014, he consumed half bottle of country made liquor with accused No. 1. He also got recovered the glass in which he consumed the liquor. Blood stained clothes, which accused No. 1 was wearing at the time of the incident, were also taken into possession. Likewise, accused No. 3, while in the police custody, pointed out the shop from where she alongwith the deceased purchased chicken and the place where she threw the jute sack after cleaning the blood from the floor of her room and the place wherefrom, she alongwith other accused persons, threw the dead body of the deceased. She got effected the recovery of scythe with which she gave a blow to the deceased.
5. The police prepared the necessary spot maps and statements of the witnesses were also recorded. Reports from RFSL were procured and after completion of the investigation, challan was prepared and presented in the Court.
3. The prosecution, in order to prove its case, examined as many as sixteen witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 7 and claimed to be tried.
4. The learned Trial Court, vide impugned judgment dated 01.04.2017, convicted the accused persons under Sections 302 and .
201 IPC read with Section 34 IPC. The accused persons were sentenced to life imprisonment for the offence punishable under Section 302 read with Section 34 IPC and to pay fine of `5,000/- each and in default of payment of fine, they were ordered to further undergo simple imprisonment for a year. The accused persons were further sentenced to rigorous imprisonment for seven years for the offence punishable under Section 201 IPC and to pay fine of `2,000/- each and in default of payment of fine they were ordered to undergo simple imprisonment for six months. Substantive sentences were ordered to run concurrently, hence the present appeals preferred by the accused persons Hari Ram Bahadur, Kishan and Geeta.
5. Ms. Richa Thakur, learned Legal Aid counsel, for accused No. 1 and 3, has argued that accused Geeta was not, in any manner, connected with the offence and her conviction is wrong, as the same is recorded without there being availability of evidence against her. She has further argued that the prosecution has failed to prove the guilt of accused Geeta beyond the shadow of reasonable doubt, so she be acquitted. Mr. Lalit Kumar Sehgal, Advocate, learned counsel, for accused No. 2, has argued that the prosecution has ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 8 failed to prove the guilt of accused No. 2 beyond the shadow of reasonable doubt, as the last seen together is not proved and the recoveries, allegedly effected under Section 27 of the Indian Evidence .
Act, are not in accordance with law. He has further argued that the prosecution has failed to prove the guilt of accused No. 2, so he be acquitted by setting aside the findings, as recorded, qua him, by the learned Trail Court. Conversely, the learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt and the appeals deserve dismissal, so the same be dismissed. He has further argued that the evidence clearly shows that the prosecution has proved the guilt of the accused persons beyond the shadow of reasonable doubt by leading cogent and convincing evidence. He has argued that the learned Trial Court has appreciated the evidence in its true and right perspective. Thus, the judgment of conviction, as rendered by the learned Trial Court, needs no interference, as the same is as per law. He has argued that the appeals are without merits and the same be dismissed.
6. In rebuttal, the learned Counsel for the appellants have argued that the police had not associated the Chowkidar and other persons, as witnesses and had they been associated in the investigation, the truth would have come before the Court. It has ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 9 been argued that under these circumstances, there is serious doubt about the prosecution story, so the accused be given benefit of doubt and acquitted after setting aside the judgment of conviction rendered .
by the learned Trail Court.
7. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
8. In the case in hand, it emanates from the record that the deceased died due to head injury and its complication. The statement of PW-10, Dr. Bhagwat Mehta, the then Medical Officer, Civil Hospital, Anni, is relevant. This witness, on 03.05.2014, conducted the postmortem examination on the dead body of the deceased. This witness, on postmortem examination, observed as under:
"CRANIUM AND SPINAL CORD Skull is normal. There is subarachnoid haemorrhage with significant brain injury.
THORAX AND ABDOMEN Normal MUSCLES, BONES AND JOINTS There is lacerated wound on right upper leg below knee joint. There is fracture of upper third of tibia bone."
As per the opinion of this witness, the deceased died due to head injury and its complication and the probable time that elapsed (a) between injury and death: few minutes to few hours (b) between ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 10 death and post mortem: less than 72 hours. He has further deposed that he preserved blood sample, urine sample, viscera, which were sealed by affixing seal having impression 'R' and the same were .
handed over by him to the police. He has issued post mortem report, Ex. PW-10/B. As per the testimony of this witness, the injuries on the person of the deceased could be caused with drat and danda. This witness, in his cross-examination, has denied that the incised would, as mentioned in the report, is not possible if a person is hit by drat, Ex. P-8. He has admitted that the head injury, as mentioned in the post mortem report by him, is possible if an inebriated person falls on sharp edged surface.
9. PW-1, Shri Bhagwan Prakash, deposed that he employed the deceased in his orchard and he started working since January-
February, 2014. He has further deposed that the deceased used to reside with accused No. 1, who was an employee of his brother, Shri Satya Prakash. A month prior to the incident, the deceased expressed his willingness to live separately, as he was not having cordial relations with accused No.1. PW-1 provided accommodation to the deceased and after some days accused No. 1 met him and disclosed that the deceased had developed illicit relations with his wife (accused No. 3). Accused No. 1 also disclosed that he himself saw the deceased and accused No. 1 in compromising condition. He ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 11 has further deposed that after 3-4 days the deceased told him that 3- 4 Nepali gurkhas visited his dera (accommodation) and they were searching for him. He raised suspicion that there is threat to his life, .
thus he shifted the deceased from the orchard to his own house at Dalash. On 29.04.2014, the deceased took `11,000/- from him, as he wanted to send the same to his parental house. He has further deposed that on 02.05.2014, when he was in Dalash, he came to know that a dead body is lying in an orchard, near liquor shop, so he rushed to the spot. The police and Pradhan Indu Sharma were there and the deceased was found lying dead. As per the testimony of this witness, the deceased had sustained multiple injuries on his body and head. He also saw blood spots on the path which were towards the house of accused No. 1. He has further deposed that on 01.05.2014 he saw the deceased with accused No. 1 and 2 at Dalash bazaar. He saw a blood stained jute sack lying near the way to the house of accused No. 1 and 3. As per his testimony, his statement was recorded by the police on 02.05.2014 under Section 154 Cr.P.C., which is Ex. PW-1/A. He remained associated with the police during the course of investigation and on 15.05.2014 police broke open the lock of the residential accommodation of the deceased, wherefrom identity card of the deceased was recovered, which was taken into possession vide seizure memo, Ex. PW-1/B. This witness has also ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 12 identified accused No. 1 and 2 in the Court. He, in his cross-
examination, has deposed that his residence is in village Booni, which is a kilometer away from Dalash. He has further deposed that .
where the dead body of the deceased was found that spot is 100 meters away from his building.
10. PW-2, Shri Satya Prakash, deposed that he owns an orchard at village Dalash and he knew accused No. 1 and 3. He had employed them in his orchard and gave them accommodation initially at Kaagi and subsequently in his own residential house at village Dalash. In the month of April, 2014, accused No. 1 and 3 shifted to Dalash in the accommodation given by him and the deceased also started living with them. As per this witness, deceased was brother of accused No. 3, however, after eleven days the deceased shifted to the accommodation of Shri Bhagwan Prakash (PW-1). He has further deposed that on 02.05.2014 he came to know that deceased was found dead near liquor vend at village Dalash, so he went to the spot alongwith the police and found the deceased, who had sustained head injury. This witness also accompanied the police to the accommodation of accused persons and saw blood stains on the wall and bed. In his presence, the police also recovered a blood stained boru (jute sack) from the bushes near the building.
::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 1311. PW-3, Shri Ram Prakash, deposed that prior to ten days of the incident he had employed accused No. 2 in his orchard at Shakahar. As per this witness, accused No. 2 was earlier living with .
accused No. 1. On 01.05.2014 he received a telephonic call from accused No. 1, who told him that he is going to Nepal and wanted some money. So, he sent accused No. 2 to village Dalash to pay `1,000/- to accused No. 1. He has further deposed that on 02.05.2014, around 02:30 to 03:00 p.m. all the accused persons came to him at village Shakahar and later the police nabbed the accused persons. He came to know about the murder of the deceased. On 05.05.2014, the police came to his house with accused Kishan Bahadur and searched his room. The police recovered a blood stained shirt of the accused, which was sealed in a cloth parcel and sealed with 2-3 seals having impression 'K'. The facsimile seal 'K' was handed over to him, which he brought to the Court. This witness, in his cross-examination, has deposed that on 01.05.2014 accused Kishan Bahadur did not return to his room.
12. PW-4, Shri Prem Chand, deposed that he was acquainted with accused No. 1 and 3, as they were residing in the building above his shop. He has further deposed that he also knew the deceased. As per the version of this witness, on 01.05.2014 accused No. 3 (Geeta) and the deceased came to his shop and purchased 1.5 ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 14 kg chicken and the deceased paid `200/-. On the subsequent day, he came to know qua the murder of the deceased. This witness, in his cross-examination, has deposed that accused No. 3 and the .
deceased came to his shop around 05:30 p.m.
13. PW-5, Shri Brikam Singh, Patwari, deposed that on application dated 15.05.2014, Ex. PW-5/A, moved by the police, he issued jamabandi, Ex. PW-5/B and tatima, Ex. PW-5/C, qua the land where the dead body of the deceased was found.
14. PW-6, Smt. Nirmala Devi, the then Ward Member, Gram Panchayat, Dalash, deposed that on 04.05.2014 she remained associated with the police in the investigation. On 04.05.2014, at 01:00 p.m., the police brought the accused persons to Panchayat Ghar qua investigation of a murder case. As per the version of this witness, police also associated Smt. Deepa Devi, Ward Member. In her and in presence of Smt. Deepa Devi police took into possession the clothes worn by accused No. 3, Geeta, which were packed in a cloth parcel and the same was stitched and sealed with three seals having impression 'T'. Later on, accused Geeta took the police to her accommodation, which was in the building of Shri Satya Prakash (PW-2) and identified the same as place of occurrence. Accused Geeta also disclosed that the blood spilled on the floor of the room was of the deceased and she cleaned the same with a boru (jute ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 15 sack), which was thrown behind the bushes near to a field.
Thereafter, the police took into possession a piece of cement from the floor and sealed the same in a cloth parcel by affixing three seals .
having impression 'T'. Accused No. 3 also got recovered a drat from the room, which was kept beneath the fuel wood. The police prepared sketch of the same, which is Ex. PW-6/A, which bears her and the signatures of accused No. 3. Drat was packed in a cloth parcel and sealed with three seals having impression 'T'. This witness has further deposed that accused No. 3 also got recovered clothes of the deceased near Shegal tree, near to liquor vend at Dalash. The clothes were taken into possession, put in a cloth parcel and sealed with three seals having impression 'T'. As per this witness, the police prepared the spot maps of the places from where the recoveries were effected. The spots were also photographed and videographed. PW-6 has further deposed that accused Geeta disclosed in her presence that after committing murder of the deceased, his corpse was shifted to a field near to liquor vend and was thrown. She has deposed that on the same day accused No. 1 disclosed that on the night of 01.05.2014 he, in his accommodation, consumed liquor in steel tiffin with the deceased and accused No. 2.
Accused No. 1 got recovered steel tiffin, which was put in a cloth parcel and sealed with three seals having impression 'T'. Accused ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 16 No. 1 also got recovered a wooden danda (stick), which was used in hitting the deceased. The danda was taken into possession, put in a cloth parcel and sealed with three seals having impression 'T'.
.
Accused No. 1 got recovered his clothes from a room, which he was wearing at the time of the incident. The T-shirt and the pants were packed in cloth parcel, which was sealed with three seals having impression 'T. PW-6 has further deposed that the sealed parcels, i.e., Exts. P-12, P-14 and P-16 were taken into possession by the police vide seizure memo, Ex. PW-6/C, in her and in presence of witness Deepa Devi and accused No. 1. As per this witness, facsimile seal 'T', after its use, was handed over to witness Deepa Devi and the police also took the sample seal impression 'T' on a separate piece of cloth, in her presence, which is Ex. PW-6/D, which bears her and the signatures of Deepa Devi. She has further deposed that on the same day accused No. 2 disclosed that on 01.05.2014 he had consumed alcohol, in a steel glass, alongwith accused No. 1 and the deceased in the residential accommodation of accused No. 1. Accused No. 2 got identified the spot where the corpse of the deceased was thrown. He has further disclosed that prior to consuming the liquor in the room of accused No. 1, he consumed alcohol with the deceased in the dhaba of Ranbeer at Village Dalash. Accused No. 2 got recovered a steel glass in which ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 17 he had consumed liquor, which was packed in a cloth parcel after affixing three seals of impression 'T', and the same was taken into possession vide seizure memo, Ex. PW-6/E. She has identified all .
the accused persons in the Court.
15. PW-7, ASI Narender Kumar, deposed that on 02.05.2014, acting upon the information qua the murder of the deceased, he accompanied SI Rohit Mrigpuri, the then SHO, Police Station, Ani to village Dalash. As per the version of this witness, ASI Dilu Ram, Incharge, Police Post, Luhri, recorded the statement of Shri Bhagwan Prakash (PW-1) under Section 154 Cr.P.C., which is Ex. PW-1/A, afterwards the statement was handed over to him, which he took to Police Station, Ani, and on the anvil of the same FIR No. 47 of 2014, dated 02.05.2014 was registered. Subsequently, he handed over the case file to ASI Dilu Ram on the spot.
16. PW-8, Constable Vikram Singh, deposed that on 02.05.2014 on the direction of ASI Dilu Ram, he visited village Dalash. As per the version of this witness, he had brought the dead body of the deceased from the spot to CHC, Ani, for its postmortem examination. The post mortem examination was conducted on 03.05.2014 and on 04.05.2014 he handed over the viscera and postmortem report to ASI Dilu Ram. He has further deposed that on 09.05.2014, MHC handed over to him 22 sealed parcels, as ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 18 mentioned in docket, Ex. PW-8/A, vide RC No. 48 of 2014, dated 09.05.2014, which he deposited on the same day in RFSL, Mandi, and the receipt thereof was handed over by him to MHC.
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17. PW-9, Smt. Indu Sharma, the then Pradhan, Gram Panchayat Dalash, deposed that on 02.05.2014, around 07:30 a.m., she received a call from Shri Gopal Dass, Revenue Chowkidar, that a dead body is lying in an orchard, near the liquor vend at Dalash, so she rushed to the spot and waited for arrival of the police. Police came on the spot and on the basis of the preliminary inquiry it was unearthed that the deceased was Narayan Bahadur Nepali, a labourer in the orchard of Shri Bhagwan Prakash (PW-1). There were injuries on the body of the deceased and she also saw blood spots on the road and on the stairs leading to the room of the accused in the building of Satya Prakash. So, she alongwith the police and Gopal Dass, Chowkidar, went inside the room and saw blood spots on the wall. She has further deposed that police also recovered a jute sack from the bushes near the building, which had blood spots. In her presence, the police photographed and videographed the spot and collected blood samples lying on the spot of recovery of the dead body. She has further deposed that police also took blood samples from the road, walls of the room and from the stairs. As per this witness, the blood samples were taken on ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 19 white papers and the same were sealed in a cloth parcel after affixing three seals of impression 'H'. The police also took into possession a steel glass and two liquor bottles and the articles were put inside a .
carton box and sealed in a sack after affixing three seals having impression 'H'. She has further deposed that police took blood stained gunny bag from the bushes and the same was put in a plastic sack and sealed after affixing a seal having impression 'H'.
The samples and parcels were taken into possession vide seizure memo, Ex. PW-9/A in presence of Shri Gopal Dass Chowkidar, which bears her signatures. She identified the accused persons in the Court. This witness, in her cross-examination, has deposed that the room, in which she alongwith the police went, was open.
18. PW-11, Lady Constable Krishna, deposed that on 04.05.2014 she remained associated in the investigation and during the course of investigation accused Geeta made a disclosure statement under Section 27 of the Evidence Act, Ex. PW-11/A. As per this witness, the disclosure statement of accused Geeta was to the extent that she can identify the shop from where she purchased 1.5 kg chicken with the deceased on 01.05.2014. Accused No. 3 also disclosed that she can get recovered a boru with which the blood of the deceased was cleaned from the floor and the drat, which was used to commit the offence. Accused No. 3 also disclosed that she ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 20 can identify the spot wherefrom the deceased was thrown. She had also disclosed that the clothes, which she was wearing on 04.05.2014 are the same, which she was wearing at the time of .
commission of the offence and she can get identified the place where the clothes of the deceased were thrown. She alongwith the accused signed disclosure statement, Ex. PW-11/A. She has further deposed that subsequently they went to Dalash, where the accused handed over her worn clothes to the police, which were taken into possession vide seizure memo, Ex. PW-6/B. This witness, in her cross-
examination, has deposed that the police recovered a drat and boru from the house of the accused and the clothes of the deceased were recovered from the place down from the road, near the house of the accused.
19. PW-12, Constable Pawan Kumar, deposed that on 04.05.2014, accused No. 1 made a disclosure statement under Section 27 of the Evidence Act, which is Ex. PW-12/A, and disclosed that he could get recovered a danda and identify the place from where the deceased was pushed. Accused No. 1 had also disclosed that he could get identified the place where he consumed liquor with the deceased on 01.05.2014 and he could also get recovered a tiffin in which alcohol was consumed. As per this witness, the disclosure statement was made in his and in presence of Constable Suresh ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 21 Kumar. He has further deposed that on the same day accused Kishan also made a disclosure statement, Ex. PW-12/B, in his and in presence of Constable Suresh Kumar and disclosed that he could .
get recovered a glass in which liquor was consumed by him alongwith the deceased on 01.05.2014. Accused No. 2 further disclosed that he knows the place where he disposed of his clothes, which he was wearing on the day of the incident and can also get recovered a danda. As per PW-12, on 15.05.2014, he alongwith ASI Dilu Ram went to the house of Shri Bhagwan Prakash (PW-1) in village Dalash and the room of the deceased was searched. An identify card of the deceased was recovered, which was taken into possession vide memo, Ex. PW-1/B. This witness, in his cross-
examination, has deposed that the room of the deceased was locked, which was opened by Shri Bhagwan Prakash by breaking the lock.
20. PW-13, HC Roshan Lal, brought original roznamcha register qua Rapat No. 10, dated 02.05.2014, and Rapat No. 6, dated 02.05.2014, of Police Post, Luhri. The copies of rapats are Ex. PW-
13/A and Ex. PW-13/B, respectively.
21. PW-14, ASI Pushap Dev, deposed that on 02.05.2014, at 07:30 p.m., Shri Gopal Dass, Chowkidar, Phati Soidhar, reported that a dead body of a Nepali is lying near liquor vend at Dalash.
The information was conveyed to Incharge, Police Post, Luhri and ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 22 SDPO, Anni vide GD entry No. 7(A), Ex. PW-14/A. Consequently, SI Rohit Mrigpuri, SHO, Police Station, Anni, alongwith other police personnel went to the spot. He has further deposed that he received .
statement, Ex. PW-1/A, endorsed by ASI Dilu Ram, whereupon he registered FIR, Ex. PW-14/C, which bears his signatures. He has further deposed that on 02.05.2014 ASI Dilu Ram deposited with him eight sealed parcels, which were duly sealed with seal 'H' and to this effect he made relevant entries at Sr. No. 359 of Malkhana register No. 19, copy of which is Ex. PW-14/D-1. On 04.05.2014 eight more sealed parcels, which were also duly sealed with seals 'T' and 'R' were deposited by ASI Dilu Ram with him and qua this he had made entry at Sr. No. 361 of Malkhana register No. 19, copy of which is Ex. PW-14/D-2. He has further deposed that on 05.05.2014, ASI Dilu Ram deposited with him a sealed parcel bearing three seals having impression 'K' and to this effect requisite entries were made at Sr. No. 362 of Malkhana register No. 19, copy of which is Ex. PW-14/3. This witness has further deposed that on 09.05.2014, vide docket, Ex. PW-8/A, the parcels were sent to RFSL, Mandi, through Constable Vikram Singh, vide RC No. 48 of 2014, dated 09.05.2014, copy of which is Ex. PW-14/E, and the receipt qua the same was handed over to him.
22. PW-15, Inspector Rohit Mrigpuri, deposed that on ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 23 02.05.2014, at 07:30 a.m., information was received qua the murder of the deceased, so Incharge, Police Post, Luhri, was informed and he went to the spot at 08:30 a.m. alongwith ASI Narender Kumar and .
Constable Mukesh Kumar, vide GD entry 10(a), Ex. PW-14/B. He got identified the dead body as that of deceased Narayan Bahadur and conducted the inquest proceedings vide form 25.35(1)A, Ex. PW-
15/A. After culmination of the investigation and receipt of FSL reports, i.e., Ex. PX and Ex. PY, he prepared the challan and supplementary challan.
23. PW-16, ASI Dilu Ram, Investigating Officer, through his depositions tried to support the prosecution case. The relevant excerpts of his testimony are suffice to be discussed here. He has deposed that he went to the accommodation of the accused persons, as, as per the complainant, they were suspected perpetrators of the crime. He has further deposed that the blood drops found on the spot were towards the accommodation of the accused persons.
During the course of investigation he recovered a jute sack, which was lying in the bushes at a distance of 20 feet from the room. He stated that when he reached Police Station, Anni, by that time accused persons had already been traced and brought to Police Station, Anni. He collected a concrete sample of the floor and put the same in a cloth parcel, which was sealed with seal having ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 24 impression 'T'. As per this witness, accused Geeta got recovered a boru, which was stained with blood and also got recovered a drat, which was hidden beneath the fuelwood, kept in the room. In nitty-
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gritty, this witness supported the prosecution case qua recoveries effected by the police and the investigation carried out. This witness, in his cross-examination, he alongwith Pradhan Indu Sharma, Gopal Dass, Chowkidar, and the complainant followed the blood stains and came to the room in the building of the complainant. As per this witness, the room was bolted and it was unlocked.
24. After going through the record, it is clear that the case of the prosecution rests upon circumstantial evidence and as far as the law qua circumstantial evidence is concerned, the same in nitty-
gritty is that each and every circumstance is required to be proved by the prosecution and the circumstances, as a whole, have to make out a chain in a manner that the only conclusion is that the accused persons have committed the offences, as alleged by the prosecution.
25. The learned counsel for the appellants have tried to dilute the case of the prosecution on the point that the deceased while talking to PW-1, Shri Bhagwan Prakash, did not disclose that the accused persons visited his dera alongwith 3-4 Nepalis and this makes it clear that it was not the accused persons from whom the deceased was apprehending threat to his life. However, it has come ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 25 in the statement of PW-1 that accused Hari Ram Bahadur apprehended that the deceased was having illicit relations with his wife Geeta (accused No. 3). PW-3, Shri Ram Prakash, categorically .
stated that accused Kishan did not come to his room during the night of 01.05.2014, thus the absence of accused Kishan in his room during the night of 01.05.2014 is a circumstance which proves the fact that he was with other accused persons and they were all together. PW-4, Shri Prem Chand, clearly proves that the deceased was last seen in the company of accused Geeta. As per the version of PW-6, Smt. Nirmala Devi, the then Ward Member, Gram Panchayat, Dalash, accused Geeta led the police personnel to her residential room, which was in the building of Shri Satya Prakash (PW-2) and she got identified the same as the place of occurrence.
This witness has further deposed that accused Geeta disclosed that the blood of the deceased spilled on the floor of the room and she cleaned the same with a boru, which was thrown behind the bushes in the adjoining field. Thus, it stands established from the evidence of PW-6 that accused Geeta identified the place of occurrence as also the place where the dead body of the deceased was thrown.
26. Learned counsel for the appellants have also tried to seek advantage of the fact that the Chowkidar, who has informed the police qua the dead body of the deceased lying on the spot, had not ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 26 been examined by the prosecution, but non-examination of the Chowkidar is of no help to the defence, as he has only disclosed to the police that a dead body was lying on the spot and his role is .
nothing more than that, so benefit of non-examination of Chowkidar cannot be given to the accused persons.
27. In the case in hand, the evidence, emanating from the record, makes out a complete chain of circumstances and one of the major link in the chain of the circumstances stands proved through the testimony of PW-6, Smt. Nirmala Devi. This witness proves the disclosure statement made by accused Geeta and the consequent recoveries made thereupon. PW-4, Shri Prem Chand, deposed that on 01.05.2014 accused Geeta and the deceased came to his shop and purchased 1.5 kg chicken. Thus, through the version of PW-4 it stands established that the deceased was last seen with accused Geeta on 01.05.2014 and on the subsequent day, i.e., 02.05.2014 corpse of the deceased was found in an orchard. It can be more than safe to hold that the deceased was last seen in the company of accused Geeta and subsequently he went to the accommodation of accused couple, where accused No. 2 was also present. The evidence also clearly speaks that the deceased consumed liquor with accused 1 and 2 and as accused No. 1, Hari Ram Bahadur, was having rancor for the deceased, as he was against the deceased, who was ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 27 having illicit relations with his wife (accused No. 3). Accused No. 1 was nursing a grudge against the deceased, so the accused persons hatched a conspiracy and consequent thereto the deceased was .
killed by them. Therefore, the prosecution has successfully proved that the deceased was last seen with accused Geeta, accused No. 1 had motive to kill the deceased and his dead body was thrown by them in an orchard. The accused persons also caused disappearance of the evidence by cleaning the blood of the deceased from the floor and walls with a jute sack, which was subsequently thrown in bushes.
28. The testimony of PW-3, Shri Ram Prakash, in whose accommodation accused No. 2, Kishan, was staying, categorically deposed that during the night of 01.05.2014 accused Kishan did not return to his room. He has further deposed that on the subsequently day, i.e., 02.05.2014, at about 02:30/03:00 p.m. all the accused persons visited him at village Shakahar and afterwards the police came to apprehend them. Thus, on the night of occurrence accused Kishan was not in his room and on the subsequent day he was in the company of accused couple. The above circumstances, clearly points out to only one conclusion that accused Kishan was accomplice with accused couple.
29. It stands fortified that after the recovery of the dead body ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 28 of the accused, police, alongwith PWs, 1, 2 and 7, Shri Bhagwan Prakash, Shri Satya Prakash and Smt. Indu Sharma, respectively, observed blood lying on the road just above the orchard, on the .
stairs leading to the room of accused couple and accused couple was found missing from their room from the early morning of 02.05.2014. Similarly, PW-2, Shri Satya Prakash, categorically deposed that on 02.05.2014, when he alongwith the police went to the house of accused couple, the accused couple was not there.
30. The testimony of PW-9, Smt. Indu Sharma, the then Pradhan, Gram Panchayat, Dalash, is very important. She has deposed that on 02.05.2014, around 07:30 a.m., Shri Gopal Das, Chowkidar, telephonically informed her that a dead body is lying in the orchard, near the liquor vend at Dalash, so she went to the spot and waited for arrival of the police. Thereafter, she remained associated in the investigation and saw blood spots on the road and on the stairs leading to the room of the accused couple. This witness further deposed that she went inside the room of the accused couple and saw blood spots on the walls. As per this witness, a jute sack smeared with blood was also found near the building and the police photographed the spots, took into possession blood samples from the road, from the walls of the room and from the stairs. The blood samples, which were taken, were sealed in a cloth parcel by affixing ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 29 seals having impression 'H'. Likewise, the blood soaked sack was also taken into possession and sealed in parcel having seal 'H'. She has further deposed that a steel glass and two liquor bottles were .
also taken into possession and put inside a carton box and the carton box was further put inside a sack, which was sealed with seal impression 'H' and to this effect seizure memo, Ex. PW-9/A, was prepared.
31. The statement of PW-16, ASI Dilu Ram, fortifies the version of PW-9. He has deposed that he found blood stains on the road and the same were leading to the accommodation of the accused persons. He had also found blood stains on the stairs, which were leading to the room of the accused persons. Blood stains were also found inside the room on the walls. As per the version of this witness, he recovered a jute sack, which was lying in a bush about 20 feet from the room of the accused. He had lifted blood from the spots and also took into possession the blood soaked jute sack and prepared separate parcels thereof, which were sealed with seal having impression 'H' and to this effect seizure memo, Ex. PW-9/A, was prepared. On the same day, he handed over all the parcels to MHC Pushap Dev. Now, PW-14, Pushap Dev, had specifically deposed that on 02.05.2014, ASI Dilu Ram deposited with him eight duly sealed parcels having seal impression 'H' and to this effect he ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 30 made entry in the malkhana register, copy thereof is Ex. PW-14/D-1.
He has further deposed that on 09.05.2014 he sent all the parcels, through PW-8, Constable Vikram Singh, to RFSL, Mandi, vide RC, .
Ex.PW-14/E, which were safely deposited in the laboratory.
32. The chemical examination report, Ex. PX, demonstrates that human blood was found on the blood samples lifted from the road, stairs and inside the room and the jute sack had been found to have contained human blood of group 'O', which was the blood group of the deceased.
33. The testimonies of all the above witnesses are consistent on the point that blood was lying on the road, stairs and in the room of the accused couple. Their testimonies are also consistent to the recovery of a blood soaked sack, Ex. P-28, sealing of parcels and sending the same to RFSL. In fact, nothing emanates from the evidence which could even remotely provide a faint line to form basis for the acquittal of the accused persons.
34. The above evidence cumulatively shows that the accused persons lifted the bleeding body of the deceased from the room and the same had been thrown in the orchard and in the process the oozing blood fell on the staircase and the road. It also stands established that in the evening of 01.05.2014 the deceased was seen in the company of accused Geeta. PW-4, Shri Prem Chand, saw the ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 31 deceased going towards the room of accused couple, so it is for the accused persons to explain how the deceased sustained injuries in their room and how he died. However, the accused persons could .
not offer any explanation to that effect and what to say of plausible explanation. The evidence also clearly establishes involvement of the accused Kishan in the commission of the offence, as it has come on record that during the night of 01/02.05.2015 he was not in his room and was in the company of accused couple. This fact is fortified from the fact that human blood had been found on his clothes and accused Kishan has failed to offer any acceptable explanation that how and under what circumstances human blood had come on his shirt, Ex. P-2. Likewise, human blood was also found on the clothes of accused Geeta. It has come in the deposition of PW-16, ASI Dilu Ram, that on 04.05.2014, accused Geeta disclosed that on the day of occurrence, she was wearing the same clothes, which she had been found wearing at the time of her arrest, thus her clothes were also taken into possession in presence of PW-
6, Smt. Nirmala, and PW-6 also testified the same. Subsequently, the clothes of accused Geeta were sent for chemical examination and as per report, Ex. PX, human blood was found on the shirt of accused Geeta. The blood and urine samples of the deceased, on being chemically tested, show presence of 169.62 mg% of alcohol in ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP 32 his urine and 191.92 mg% of alcohol in his blood. Thus, it is proved that the deceased had been administered heavy quantity of alcohol and the accused also wanted him to drink heavily, as they wanted to .
perpetrate the crime.
35. In the wake of what has been discussed hereinabove, in our opinion, especially when the chain of circumstances is complete, it is extremely difficult to draw any other conclusion, except that the accused persons perpetrated the crime. Thus, on the basis of the above discussion, it can be safely held that the prosecution has been able to prove its case beyond the shadow of reasonable doubts, as there is no missing link in the chain of circumstances, so the judgment of conviction, as rendered by the learned Trial Court, against the accused persons is the result of proper appreciation of fact and law and the same needs no interference. The appeals are without merit and the same are dismissed.
36. In view of the above, the appeals, so also pending application(s), if any, stand(s) disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 20th September, 2018 (virender) ::: Downloaded on - 22/09/2018 22:58:34 :::HCHP