Himachal Pradesh High Court
Satnam Singh Alias Chint Ram vs State Of Himachal Pradesh on 21 September, 2015
Bench: Rajiv Sharma, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 76 of 2015
Reserved on: September 18, 2015.
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Decided on: September 21, 2015.
Satnam Singh alias Chint Ram ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice P.S.Rana, Judge.
of
Whether approved for reporting? Yes.
For the appellant: Mr. Adarsh Sharma, Advocate.
For the respondent: Mr. Ramesh Thakur, Asstt. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment and order dated 3.6.2010, rendered by the learned Addl. Sessions Judge, Una, H.P. in Sessions trial No. 13 of 2009, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 302 IPC, was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.
20,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years.
2. The case of the prosecution, in a nut shell, is that on 14.6.2009 at 00:15 AM, Narinder Pal son of Udham Singh informed telephonically to the Police Station, Gagret that one person was lying near the culvert on Upper Gagret road. The person was unable to speak and was writhing in pain. He was being taken to Gagret Hospital for treatment. SI Mohinder Singh, the then Addl. SHO, PS Gagret alongwith ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 2 the staff proceeded to the First Referral Unit, Gagret. The statement of Sushma Devi (wife of the deceased) under Section 154 Cr.P.C. vide Ext.
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PW-1/A was recorded. She disclosed that her husband used to make steel trunks and boxes. He was working in the shop i.e. Sharma Trunk House, Gagret, owned by Sh. Ram Kumar Sharma for the last 14-15 days.
Sh. Hussan Lal used to leave the house daily around 8:00 AM in the of morning and return home around 8:00 PM. He did not come back to the house as usual on 13.6.2009. At about 8:30 PM, the deceased made a phone call to her. She enquired from him as to why he was late. The rt deceased remarked that he would be reaching home soon. At about 12 midnight, she was informed by Smt. Reshma Devi, Member, Gram Panchayat, Upper Gagret that her husband was admitted in the hospital.
She reached the hospital alongwith the neighbours. She saw injury inflicted with some sharp object on the back of the head of Sh. Hussan Lal. Another injury caused with sharp edged weapon was seen on the left ankle of the deceased. The injured succumbed to his injuries before reaching the hospital. She suspected that her husband had been murdered by some unknown persons by causing injuries with some sharp edged weapon. FIR No. 84 of 2009 was registered on the basis of rukka.
The accused made disclosure statement, on the basis of which Tokka/Takua (the weapon of offence) was recovered from the bushes. The clothes of the accused were also taken into possession. The finger prints of the deceased and accused were also forwarded to the Bureau. The ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 3 Bureau opined that all the prints were either faint, smudged, blurred or superimposed. The same were unfit for comparison. On completion of .
the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 21 witnesses. The accused was also examined under Section of 313 Cr.P.C. The accused took the plea of total denial simplicitor. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
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4. Mr. Adarsh Sharma, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, appearing on behalf of the State, has supported the judgment and order of the learned trial Court dated 3.6.2010.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case very carefully.
6. PW-1 Sushma Devi deposed that her husband used to earn livelihood by making steel trunks at Gagret. He was working for Ram Kumar Sharma. Her husband used to leave the house at 8:00 AM in the morning and used to return at 8:00 PM in the evening. On 13.6.2009 her husband did not return back even after 8-8:30 PM. He gave her call at around 8:30 PM in the night that he shall come to home soon. At about 12 in the night, Reshma told her that her husband was admitted in the ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 4 hospital. She immediately rushed to the hospital. She noticed that her husband had incised wound on the back side of the head and a pointed .
injury on the left ankle. He was dead by the time, she reached the hospital. The police had reached the hospital. Her statement was recorded vide Ext. PW-1/A.
7. PW-2 Ramesh Chand deposed that about 10 months prior to of the occurrence, the deceased Hussan Lal had a fight with the accused Satnam outside his shop. He intervened and stopped the fight. He did not know the cause of fight. On 13.6.2009, at about 10:00 PM, one of his rt villagers, namely, Tilak Raj informed him that his earlier employee, the deceased was lying in the khad. He immediately rushed to the spot.
About 3-4 people had already reached the spot. Sohan Lal and Ex.
Pradhan of the village had also telephonically informed him of the same.
Sohal Lal, Tilak Raj, Hazari Lal and other villagers were already present on the spot. The deceased was breathing at that time. He did not, however, speak. He was immediately rushed to the hospital.
Unfortunately, he died after reaching the hospital. He noticed injuries on the back side of his head and on his ankle. In his cross-examination, he admitted that no fist and kick blows were exchanged between the accused and the deceased. It was only a verbal fight. He also admitted that there was no light on the vicinity of the spot of occurrence. He also admitted that it was dark when he reached the spot.
::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 58. PW-3 Narinder Pal deposed that he along with his brother Ram Krishan were going to village Kaloh on a scooter to take part in a .
religious function. While driving through the khad connecting his village to Gagret, he noticed a person lying by the side of the track. He was blood soaked and he could not recognize him. He, immediately called Sohan Lal (Pradhan). The Pradhan also informed the police. Thereafter, of Ramesh and Tilak also reached the spot.
9. PW-4 Kamal Raj was the Pradhan of the Gram Panchayat Panjawar. On 15.6.2009, the police joined him in the investigation of the rt case. He along with the brother of the deceased Param Jeet thereupon proceeded to the Police Station. The accused made a disclosure statement to the police under Section 27 of the Indian Evidence Act. It was recorded vide memo Ext. PW-4/A. He signed the memo. The accused disclosed that he could get recover the weapon of offence and the clothes which he was wearing at that time. On the basis of disclosure statement, the accused led the police to the place near the site of occurrence and got recovered the Gandasa from the bushes to the left hand side of the spot of occurrence. The Gandasa was at a little distance away from where the body was recovered towards the village of the deceased. The weapon of offence is Ext. P-8. Thereafter, the accused led the police party to his house where he got recovered the blood stained clothes. These were seized vide memo Ext. PW-4/D. In his cross-
examination, he admitted that the weapon of offence (Toka/chopper) was ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 6 ordinarily available for agricultural purposes in the villages. The same was visible in the photographs.
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10. PW-5 Manoj Kumar deposed that on 13.6.2009, one person had come to his shop at around 9-9:15 PM, looking for a glass, as he wanted to have liquor. He refused him on the pretext that he could not have a drink in his shop. He thereupon asked only for a glass after giving of security of Rs. 10. After some time the accused Satnam came to his shop and purchased a bottle of Limca from him. Thereafter, both the accused and the other person who had taken the glass, left towards Daulatpur rt road. Till 10:00 PM, no one came back with a glass and thereafter, he closed his shop and left for his house. On 15.6.2009, the police came to his shop and enquired whether someone had taken a glass and cold drink from his shop. When he answered in the affirmative, he was summoned to the Police Station. The police showed him the photographs of the deceased. He recognized him to be the same person who had taken the glass from his shop on 13.6.2009. On 4.9.2009, his statement was recorded in the Court of JMIC, Amb.
11. PW-7 Dharmender Singh deposed that on 13.6.2009 at about 8-8:15 PM, the deceased Hussan Lal came to his shop. He asked him to give phone as he wanted to talk to his wife. He made a call and thereafter he left his shop. At around 9:30 PM, he received a call from his wife. She asked him about the whereabouts of the deceased. He told her that the deceased had left his shop immediately after making the call. He has ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 7 admitted in his cross-examination that the deceased has come to his shop alone and he also left alone.
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12. PW-9 Sohan Lal deposed that on 13.6.2009 at about 10:30 PM, he received a call from one Narender. He informed him that a body was lying in the khad near the bridge. He thereupon informed the police.
13. PW-10 Ram Krishan deposed that he alongwith Narender was of going to village Kaloh to attend a religious function. On 13.6.2009 at about 11:00 PM, he was driving the scooter. His brother, Narender was sitting as a pillion. He noticed a person lying about 4 meters away from rt the main track. He stopped there. The person was lying in a pool of blood. They informed the Ex-Pradhan Sohan Lal and even the police on the phone. Sohan Lal came to the spot and recognized the person lying at the spot.
14. PW-11 Const. Pardeep Kumar deposed that on 18.6.2009, a cycle and a bag was recovered from the house of accused in his presence.
15. PW-12 Naresh Kumar deposed that he did not remember whether accused had come to his shop on 13.6.2009 to buy liquor. He was declared hostile and cross-examined by the learned P.P. He reiterated that on 13.6.2009 at about 8:15, the accused Satnam had not come to the liquor vend to purchase half bottle of Lal Kila.
16. PW-13 Dr. Yugashwer Ram Ravi has conducted the post mortem on the body of the deceased. He issued post mortem report Ext.
PW-13/D. According to his opinion, the probable time between injury ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 8 and death was opined to be within few hours and between death and post mortem within 24 hours. According to him, the deceased died due to the .
injuries mentioned in the post mortem report. He admitted in his cross-
examination that the final opinion was not given by the Board in the post mortem report Ext. PW-13/D.
17. PW-15 Roshan Lal deposed that his daughter had passed of away in Delhi. He had gone to make arrangement for money. At about 9:30 PM, he had seen the accused standing by the tract on the river bed near his cycle. Thereafter, he left to his house. In his cross-examination, rt he admitted that there was no light in the passage in the river bed.
18. PW-20 Insp. Mohinder Singh, deposed that he received a telephonic information on 14.6.2009 at 12:15 AM that one person was lying in the Gagret khad near the bridge. He prepared the inquest reports Ext. PW-13/B and PW-13/C. He handed over the rukka through HC Hoshiar Singh and sent the same for registration of the FIR. FIR Ext. PW-
20/A was registered. He visited the spot. The accused has made disclosure statement that he could get recover weapon of offence from the bushes and clothes from his house. He got recovered the weapon of offence and clothes. It transpired in the investigation that accused and deceased had some dispute over some financial transaction between them.
19. There is no witness to the incident dated 13.6.2009. PW-1 Smt. Sushma Devi made statement under Section 154 Cr.P.C. vide Ext.
::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 9PW-1/A. According to her, some unknown person had killed her husband. Mr. Ramesh Thakur, Asstt. Advocate General has vehemently .
argued that the motive to kill the deceased by the accused is money matter. It has not come in the statement of PW-1 Sushma Devi made under Section 154 Cr.P.C. vide Ext. PW-1/A or while appearing before the Court as PW-1 that there was some money dispute involved. The I.O. PW-
of 20, Insp. Mohinder Singh has only made the bald assertion that it transpired in the investigation that accused and deceased had some dispute over some financial transaction between them.
rt Who told him about the financial transaction during the course of investigation, has not been divulged by him while appearing as PW-20.
20. Mr. Ramesh Thakur, Asstt. Advocate General has also argued that the deceased was last seen with the accused. He has relied upon the statement of PW-5 Manoj Kumar and PW-12 Naresh Kumar. According to PW-5 Manoj Kumar, a person had come to his shop at about 9-9:15 PM.
He was looking for a glass, as he wanted to have liquor. He initially refused him on the pretext that he could not have a drink in his shop but later he asked only for a glass after giving security of Rs. 10. After some time, the accused Satnam also came to his shop and purchased a bottle of Limca. Thereafter, both the accused and the other person who had taken the glass, left towards Daulatpur road. They did not come back till 10:00 PM and thereafter, he closed his shop and left for his house. The police came to his shop on 15.6.2009 and enquired from him as to ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 10 whether someone had taken a glass and cold drink from his shop. When he answered in the affirmative, he was summoned to the Police Station.
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How the police came to know that the deceased and accused came to his shop to buy glass and limca? No disclosure statement has been made by the accused that he had purchased limca from the shop of PW-5 Manoj Kumar. PW-12 Naresh Kumar has not supported the case of the of prosecution at all. He did not remember whether the accused came to his shop on 13.6.2009 to buy liquor or not.
21. The case of the prosecution is also that the accused was seen rt by PW-15 Roshan Lal on the spot. According to Roshan Lal PW-15, on 13.6.2009, his daughter had passed away at Delhi. He had gone to make arrangement for money to Gagret bazar. At about 9:30 PM, he had seen the accused standing by the tract on the river bed near his cycle. PW-2 Ramesh Chand has admitted in his cross-examination that when he reached the spot, it was dark. There was no light in the vicinity of the spot of occurrence. If it was dark, how PW-15 Roshan Lal could see the accused near the spot. His statement does not inspire confidence. He came to know about the death of his daughter at 7:45 PM and he went to Gagret bazaar to collect money at 9:30 PM. Gagret bazaar, as per the evidence is a Notified Area Committee. There the shops were supposed to close at 8:30 PM. Even, he has also admitted that there was no light in the passage of the river bed.
::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 1122. According to the medical evidence, the probable time that elapsed between injury and death was within few hours and between .
death and post mortem was within 24 hours. According to PW-13 Dr. Yugeshwar Ram Ravi, the deceased died due to the injuries mentioned in the post mortem report. In his cross-examination, the doctor has admitted that the final opinion was not given by the Board in the post of mortem report Ext. PW-13/D.
23. The glass and bottle of limca were also sent for finger print examination and comparison. The report to this effect is Ext. PY. All the rt prints were found to be either faint, smudged, blurred or superimposed and did not bear decipherable characteristic details and hence were found to be unfit for comparison. It has come in the opinion of the Board that the deceased died probably due to head injury but final opinion was to be given after the Chemical Examiner's report. The report of the Chemical Examiner is Ext. PW-13/E. Thereafter, the Board was bound to consider the report Ext. PW-13/E and give the final opinion since according to the post mortem report Ext. PW-13/D, the cause of the death was probably head injury.
24. According to Ext. PW-13/E, report of the FSL, the quantity of ethyl alcohol in exhibit P/5 (blood) was 209.81 mg%. A person with blood alcohol concentration of 150-300 mg% would be intoxicated, as per Lyon's Medical Jurisprudence and Toxicology, 11th Edition, page 626. Similarly in Medical Jurisprudence and Toxicology by Dr. K.S.Narayan Reddy, ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 12 Edition 2004 (Reprint), at page 590, a person who has consumed 150-300 mg %, would be drunk. In Parikh's Text book of Medical Jurisprudence .
and Toxicology at page 855, it is stated that at a concentration of 0.15 per cent (150 mg %), some are under the influence of alcohol and others decidedly would be drunk. With increasing concentrations the symptoms become more intense. In the instant case, the quantity of ethyl alcohol in of exhibit P/5 (blood) was 209.81 mg%. Since the accused had very high concentration of ethyl alcohol in blood, the possibility of receiving the injuries by fall cannot be ruled out, more particularly, when there is no rt eye witness to the incident and no motive is attributed to the accused for killing the deceased. PW-13 Dr. Yugashwer Ram Ravi, has admitted in his cross-examination that the injuries mentioned in the post mortem report were possible by way of fall from the height of 10 feet on sharp edged stones.
25. Their lordships of the Hon'ble Supreme Court in the case of Shyamal Saha and another vrs. State of West Bengal, reported in (2014) 12 SCC 321, have held that chain of events must be so complete as to leave no room for any other hypothesis except that accused was responsible for commission of offence. It has been held as follows:
"26. The High Court believed the testimony of Dipak and Panchu and came to the conclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta. However, the High Court did not take into consideration the view of the Trial Court, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to Asit Sarkar to cross the river as alleged by the prosecution. The High Court also did not consider the ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 13 apparently incorrect testimony of Animesh who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of .
Animesh was specifically denied by the Investigating Officer.
27. When the basic fact of Paritosh having boarded a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum of the prosecution's case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, the High Court does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of of Chandrappa. The High Court was Crl. Appeal No. 1490 of 2008 Page 16 of 21 Page 17 also obliged to consider (which it did not) whether the view of the Trial Court is a reasonable and possible view (the fifth principle of Chandrappa) or not. Merely because the High Court disagreed (without giving rt reasons why it did so) with the reasonable and possible view of the Trial Court, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by the Trial Court. This is not to say that every fact arrived at or every reason given by the Trial Court must be dealt with - all that it means is that the decision of the Trial Court cannot be ignored or treated as non-existent.
28. What is also important in this case is that it is one of circumstantial evidence. Following the principles laid down in several decisions of this Court beginning with Sharad Birdhi Chand Sarda v. State of Maharashtra13 it is clear that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim. This principle has been followed and reiterated in a large number of decisions over the last 30 years and one of the more recent decisions in this regard is 13 (1984) 4 SCC 116 Crl. Appeal No. 1490 of 2008 Page 17 of 21 Page 18 Majenderan Langeswaran v. State (NCT of Delhi) and Another. 14 The High Court did not take this into consideration and merely proceeded on the basis of the last seen theory.
29. The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But the High Court overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal."
::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 1426. Mr. Ramesh Thakur, Asstt. AG, during the course of .
arguments has submitted that on the weapon of offence, blood group 'B' was found as per Ext. PZ, forensic report. The fact of the matter is that in this case accused has not been connected with the offence. Their lordships of the Hon'ble Supreme Court in the case of Parkash vrs.
State of Karnataka, reported in (2014) 12 SCC 133, have held that of when the blood stained clothes are recovered, a serological comparison of blood of deceased and appellant and blood stains on his clothes was rt necessary and that was absent from evidence of prosecution. In this case, the prosecution has sought to prove that blood group of deceased was AB and blood stains on appellant's seized clothes also belong to blood group AB. This does not lead to any conclusion that bloodstains on appellant's clothes were those of deceased's blood. There are millions of people who have blood group AB and it is quite possible that even appellant had the blood group AB. Thus, merely since clothes of appellant were bloodstained and stains bore same blood group as that of deceased, circumstances could not be used against the appellant. Their lordships have further held that in a case of circumstantial evidence, there has to be some degree of trustworthiness and certainly about existence of circumstances. It has been held as follows:
"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood stained clothes were already seized by the police and kept on the ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 15 table. We are not sure whether the actual statement made by Shivanna has been lost in translation.
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41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had of the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping rt could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB.
45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution."
27. The incident is dated 13.6.2009 but the statement of PW-12 Naresh Kumar was recorded only on 18.6.2009. It is settled law that the statements under Section 161 Cr.P.C. should be recorded promptly. The statement of PW-5 Manoj Kumar under Section 164 Cr.P.C. was also got recorded on 4.9.2009 though the incident is of 13.6.2009. The statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence.
28. The prosecution has also tried to establish that the accused at one point of time had a quarrel with deceased on the basis of the statement of PW-2 Ramesh Chand. Ramesh Chand PW-2 has deposed ::: Downloaded on - 15/04/2017 18:58:37 :::HCHP 16 that 10 months prior to the incident, deceased Hussan Lal had fight with accused outside his shop. He intervened but he did not know as to why .
they quarreled with each other. He has also admitted in his cross-
examination that no fist or kick blows were exchanged between the parties but it was only a verbal dual. It was too remote an incident to be linked to the present incident. Thus, the prosecution has failed to prove of the case against the accused beyond reasonable doubt.
29. Accordingly, the appeal is allowed. Judgment and order of conviction and sentence dated 3.6.2010, rendered by the learned Addl.
rt Sessions Judge, Una, H.P., in Sessions trial No. 13 of 2009 under Section 302 IPC is set aside. The accused is acquitted of the charge framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
30. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
September 21, 2015, ( P.S.Rana ),
(karan) Judge.
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