High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 488 of 2010

Reserved on: 27.8.2014

Date of Decision :10/09/2014.

Labh Singh …..Appellant.

Versus

State of H.P. …..Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. Hamender Chandel, Advocate.

For the Respondent: Mr. M.A Khan, Additional Advocate

General.

________________ ________________ ______________

Sureshwar Thakur, Judge

The instant appeal is directed by the

appellant/accused, against the impugned judgment rendered on

12.07.2010, by the learned Additional Sessions Judge, Una, H.P in

Sessions trial No. 20 of 2009, whereby, the learned trial Court

convicted and sentenced the accused/appellant to undergo

imprisonment for life and to pay a fine of Rs.25,000/- and in

default of payment of fine to undergo rigorous imprisonment for a

further period of two years, for the commission of offence

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punishable under Section 302 of the Indian Penal Code

(hereinafter referred to as the IPC).

2. Brief facts of the case are that on 6

th

August, 2009, at

about 7 a.m. Shri Rajiv Sharma telephonically informed Police

Station, Amb that one person is lying dead in the ‘Sarai’ near the

hotel on Nehrian road. On receipt of said information, rapat No.10

was entered in the Police Station and thereafter, ASI Mohinder

Singh along with other police officials proceeded to the spot. The

villagers told to the police that the dead body is lying in the

verandah of the ‘Sarai’. Sh. Jagdish Chander, the complainant

made a statement under Section 154, Cr.P.C. to the police to the

effect that On 6.8.2009, in the morning, he went to answer the

call of the nature and filled the water in a bottle from the tank

near the ‘Sarai’ and went to the ‘khad’. Around 6.30 a.m., after

easing out, he returned to the water tank, kept the bottle there

and washed his hands. He noticed that in the left corner of the

verandah of the ‘Sarai’, a person is lying. He then went towards

the verandah and spotted a man lying there with his back towards

the floor. Blood was oozing out from his mouth and head of that

man which had collected in the verandah. A stone weighing about

18-20 kilograms having the blood stains was also lying nearby.

The man was dead and naked below the waist. Another person,

who was lying in the other corner of the verandah of the ‘Sarai’

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had covered himself with a chadar (sheet) and was sleeping. He

rushed to his house and narrated the incident to his brother Sh.

Mulkh Raj. Thereafter, he and Sh. Mulkh Raj went to the spot and

saw the dead body. In the meanwhile, the person who was

sleeping in the verandah had run away. He and his brother Mulkh

Raj then came towards the hotel. One person was standing there

to catch the bus. He inquired from that person as to where that

man has gone, who was sleeping in the verandah of the ‘Sarai’.

The person, who was standing to board the bus, divulged that the

said man has gone towards Amb road. On this, his brother Mulkh

Raj and the owner of the hotel Sh. Surinder Kumar followed the

man on a scooter. That person was apprehended by them near

Swami Vivekanand School and brought to the hotel. The police

was informed. The bag which the accused was carrying was

opened and checked. Pant of the deceased was recovered from

it. The same was identified by Sh. Surinder Kumar and others as

that of the deceased since he was wearing the same on the

previous day. Blood stains were also there on the ‘parna’ of the

accused. On inquiry, the accused disclosed his name as Sh. Labh

Singh. The complainant suspects that the murder has been

committed by the accused owing to some enmity or the fight.

Endorsement was made on this statement by ASI Mohinder Singh

and the same was sent to Police Station, Amb for registration of

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the FIR and accordingly, an FIR was registered in Police Station.

The police carried out the investigation in the case and during the

course of investigation, the accused was arrested by the police for

his having committed the murder of the deceased.

3. On conclusion of the inve stigation, into the offence,

allegedly committed by the accused, report under Section 173 of

the Code of Criminal Procedure was prepared and filed in the

Court.

4. Accused was charged for his having committed an

offence punishable under Section 302 of the IPC, by the learned

trial Court to which he pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution examined

seventeen witnesses. On closure of prosecution evidence, the

statement of accused, under Section 313 of the Code of Criminal

Procedure was recorded in which he pleaded innocence and no

evidence was led by him in defence.

6. On appraisal of the evidence on record, the learned

trial Court, returned findings of conviction against the

accused/appellant.

7. The accused/appellant is aggrieved by the judgment of

conviction recorded by the learned trial Court. The learned

defence counsel has concertedly and vigorously contended that

the findings of conviction recorded by the learned trial Court are

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not based on a proper appreciation of the evidence on record,

rather, they are sequelled by gross mis-appreciation of the

material on record. Hence, he contends that the findings of

conviction be reversed by this Court in the exercise of its appellate

jurisdiction and be replaced by findings of acquittal.

8. On the other hand, the learned Additional Advocate

General has with considerable force and vigour, contended that

the findings of conviction recorded by the Court below are based

on a mature and balanced appreciation of evidence on record and

do not necessitate interference, rather merit vindication.

9. This Court with the able assistance of the learned

counsel on either side, has, with studied care and incision,

evaluated the entire evidence on record.

10. The first witness, who stepped into the witness box,

in, proof of the prosecution case, is, PW-1, Praveen Kumari who

has deposed that deceased was her husband. She deposes that

on 5.8.2009, she had gone to her parental house at Gari Manewal

on the occasion of Rakhi. However, her husband was at home.

On 6.8.2009, she returned back her home, however she did not

find her husband at home. Her mother-in-law disclosed to her

that her husband had gone to Baba Badbhag Singh. She deposes

that on 9.8.2009, she had seen the photograph of her husband in

the news paper (Punjab Kesari). Consequently, she alongwith

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her mother-in-law and one Shri Sukhwinder Singh, had gone to

identify the dead body in the mortuary at ZH Una. She further

deposes that she had identified the body to be that of her

husband. In the above regard, memo Ex. PW-1/A was prepared

by the police, which has been deposed to be bearing her

signatures. Her mother-in-law and Sukhwinder Singh, as its

witnesses also signed the same. The memo bears her signatures

at Point A. She deposes that she can even identify the clothes

worn by her husband at the relevant time. On the clothes of the

deceased having been shown to her, after opening the sealed

parcel, with the permission of the Court, she has deposed that Ex.

P-1, the pant shown to her in the Court is the same which was

worn by her husband at the relevant time.

11. PW-2 Savitri Devi, mother of the deceased deposed

that on the day of Purnima (Full Moon Day) and Raksha Bandhan,

the deceased had gone to Baba Badbhag Singh. She continues to

depose that her daughter-in-law i.e wife of the deceased had gone

to her parental house at Ghari Mansual. Further she deposes that

her deceased son never returned home. She deposes that she

had seen the photograph of the dead body of his deceased son in

a newspaper. By the time, her daughter-in-law has also returned

back. Thereafter, she alongwith her daughter-in-law and one

Sukhwinder Singh had proceeded to Mortuary in ZH, Una to

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identify the body of the deceased. She deposes that she had

identified the body lying in the dead house to be that of her son.

Memo Ex. PW-1/A was prepared, which bears her thumb

impression as well as signatures of Praveen. The memo has been

deposed to be witnessed by Sukhwinder Singh and one Joginder

Singh. During her examination-in-chief, she deposes that she can

identify the clothes which were worn by the deceased, being pant

Ex. P-1, shown to her in the Court, to be worn by the deceased

when he left home.

12. PW-3 Dr. Rahul Katna deposes that on 6.8.2009, on

an application Ex.PW3/A moved by the police, he conducted the

medical examination of accused Labh Singh and also collected his

blood sample. He further deposes that he issued MLC Ex.PW3/B

which is deposed by this witness to be bearing his signatures. The

blood sample of the accused has been deposed by this witness to

have been handed over to the police.

13. PW-4 Dr. Deepak Sharma, deposes that on 6.8.2009,

on an application, Ex.PW4/A moved by the police he conducted

the autopsy of the dead body at 2.14 p.m. on the same day. He

further deposes that during the course of postmortem of the

deceased, he noticed following injuries:-

“1. Depressed fracture of right maxilla,

mandivle Maxillozygomatic complex.

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2. Multiple fracture of right temporal

parietal, a frontal bone and occipital

bone.

3. Left parital and temporal bone were also

fractured.

4. On opening the scull there was blood in

extradural, sub dural and sub arachmoid

space.

5. Sufnide bones were fractured.

6. Whole of the brain was smashed and

anatmicle lopces of brain could not be

identified.

7. Base of the skull was fractured, and part

of brain was herniating through base of

skull.

8. Mouth was filled with blood and all teeth

were fractured.”

He deposes that as per his opinion the deceased had died owing

to crushing injury and smashing of brain with multiple fracture of

the skull. No sign of sexual assault were found during the

examination. He further deposes that the probable duration

between the injury and death was opined to be immediate while

that of injury and post mortem was opined to be about 12 hours.

He further deposes that he issued the postmortem report

Ex.PW4/D which has been deposed by this witness to be in his

hand and bearing his signature. He further deposes that the

injuries reflected in the post mortem report are possible by heavy

stone.

14. PW-5 HHC Ashwani Kumar No.274 deposes that on

6.8.2009 he had taken the photographs of the spot with his digital

camera and prepared a video film. Photographs have been

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deposed by this witness to be Ex.PW5/A to Ex.PW5/C. He

continues to depose that he had also prepared a video film and

the disc thereof has been deposed by this witness to be Ex.

PW5/D.

15. PW-6 Pradeep Kumar, Surveyor NH, Sub Division,

Amb, Una deposes that on 19.10.2009, at the request of the

police he prepared spot map showing the position of NH vis-à-vis

the place of occurrence. Spot map has been deposed by this

witness to be Ex.PW6/A and the same has been deposed by this

witness to be in his hand and bearing his signatures. PW-7 SI

Ashok Kumar prepared the supplementary challan in the case after

receipt of FSL report Ex.PW7/A.

16. PW-8 C. Rajesh Kumar, proved report No.10 dated

6.8.2009, Ex.PW8/A, which has been deposed by this witnesses

to be true and correct copy of the original brought by him in

Court.

17. PW-9 Shri Jagdish Chander deposes that he is working

as peon in the SDM, Office Amb. He deposes that he proceeds to

home daily in the evening. He deposes that on 6.8.2009 at about

6.30 a.m. he went out to ease. He deposes that he took a water

bottle from a water tank near the sarai. After easing out he went

to the water tank again and washed his hand, when he turned

back, he saw a person lying in the verandah of the sarai. That

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person was wearing only a vest. He further deposes that he had

gone near that man and noticed the blood oozing out from his

head. A stone is deposed to be lying nearby. Blood stains have

also been noticed by him on the floor etc. In another corner of

the verandah, another person is deposed to be lying, who had

covered himself with a sheet. He deposes that he went back to

his house and after sometime he and Mulk Raj went to the

verandah and noticed that dead body was lying there, however,

the other person had fled away. Then he inquired from a person,

who was standing to catch the bus, as to where that man has

gone who was lying in the verandah. The said person has been

deposed to have told to him that the person who has covered his

face, has proceeded towards Amb. He further deposes that the

Hotel of Shri Surinder is nearby. Mulkh Raj and Surinder Singh

have been deposed by him to board a scooter and left for Amb to

catch hold of the man. The said person was apprehended in

Kuthera Kheria and has been deposed to be brought to the Hotel.

The police has been deposed to have telephonically informed by

Shri Rajiv Kumar. Hence, the police reached the Hotel. On being

asked, the man disclosed his name to be Labh Singh, the accused

present in the Court. Accused has been deposed by this witness

to be having a bag of clothes. The said bag was opened and

checked by the Police. One pant having blood stains was

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recovered by the police from the bag of the accused. Spot has

been deposed to be inspected by the Police and photographs were

also taken. Photographs of the deceased are Ex. PW-5/A to PW-

5/C. Pant Ex. P-1 has been deposed to have identified by Sh.

Surinder Kumar to be that of the deceased. Shri Surinder Kumar

has been deposed to have seen the deceased wearing the said

pant on the day earlier to the incident. Parna Ex. P-2, bundle of

Beeries Ex. P-3 and stone Ex. P-4 have been deposed to be the

same as were lying on the spot near the dead body. He deposes

that he has made a statement comprised in Ex. PW-9/A before

the Police which bears his signatures. Lastly he deposes that the

man had died as the injures were inflicted on his person with a

stone. In his cross-examination, he deposes that there is

thickened vicinity near the place of occurrence and in case the

fight takes place, its inhabitants would become aware about it.

However, he deposes that it was night time. He also deposes that

the pilgrims stop in the hotel of Surinder to take tea etc. The

people keep on moving through out the night on the road as it is a

national highway. He further deposed that the person who was

lying in the verandah was at a distance of about 5-6 meters from

the dead body and has covered his face with a sheet and he did

not lift the sheet of that man to see him. He further submits that

he had identified the sheet lateron , when the accused was

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apprehended. However the said sheet has not been shown to him

in the Court. He further deposes that he does not know the name

of the person who was standing to catch hold of a bus. However

he feigns ignorance as to whether the sheet with which face of the

man lying in the vicinity of the deceased was covered has been

taken into possession by the police or not. However he deposes

that he had not seen the face of the person who was lying in the

verandah and had covered his face with chaddar. He further

deposes that he had recognized that man from the chaddar and

bag which was brought by S/Sh. Mulk Raj and Surinder.

18. PW-10 Sh. Mulkh Raj deposes in his examination-in-

chief in square tandem and in corroboration to the testimony

rendered by PW-9 Jagdish Chander. He deposes that pant Ex. P-1

was sealed by the police and taken into possession vide memo

Ex.PW10/A. Memo Ex.PW10/A has been deposed by this witness

to be bearing his signatures. He deposes that the seal was handed

over to him by the police after its use. He further deposes that

parna Ex. P2, bundle of beeries Ex.P-3 and stone Ex.P-4 lying at

the spot were taken into possession by the police vide memo

Ex.PW10/B which has been deposed by this witness to be bearing

his signatures. He further deposes that inquest report Ex.PW4/B

also bears his signatures. In his cross-examination, he has

deposed that when they reached the spot, Sh. Surinder Kumar

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was there in his hotel. He deposes that Surinder Kumar open his

dhaba daily at about 6-6.30 a.m.

19. PW-11 Pardeep Kumar deposes that on 6.8.2009, the

clothes of the accused having blood stains were taken into

possession by the police vide memo Ex.PW11/A which bears his

signatures. He has identified T-shirt, Ex.P-5 and Lower Ext. P6 to

be the same which were taken into possession by the police. In

his cross-examination, he deposes that the clothes were taken

into possession by the police in the police station.

20. PW-12 Sh. Surinder Kumar deposes that on 5.8.2009,

the deceased was going towards Mairi and he was inebriated. He

deposes that the deceased kept on moving for sometime near to

his dhaba and he was wearing a white stripped shirt and off white

pant and thereafter, he lied down in the verandha of Sarai

Bhawan, which is 30-40 meters away from his dhaba. He

deposes that he slept in his dhaba during the night and got up at

7 a.m. in the morning. Jagdish Chand and Mulkh Raj have been

deposed by this witness to have come to him and informed him

that a murder has taken place. He continues to depose that he

went to the verandah of the Sarai and stone was lying there. He

deposes that the blood was there on the floor. Photographs

Ex.PW5/A to Ex.PW5/C have been deposed by this witness to be

that of the deceased. He further deposes that Jagdish Chander

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told that a person has fled towards Amb. He deposes that he and

Mulkh Raj followed that person on a scooter and nabbed him and

thereafter brought him to the dhaba. He deposes that the police

came on the spot and the bag of the accused was searched by the

police. Off white coloured pant which the deceased was wearing

on the previous day has been deposed by this witness to have

been recovered from his bag. The pant has been deposed by this

witness to be having blood stains and the pant has been deposed

by this witness to have been taken into possession vide recovery

memo Ex.PW10/A. Memo Ex.PW10/A has been deposed by this

witness to be bearing his signatures. This witness identified the

pant Ex.P1 to be that of the deceased. In his cross-examination,

he deposes that he had seen the deceased on 5.8.2009 at about

4-5 p.m. He has denied the suggestion that in case a fight takes

place in the verandah of the Sarai, the noise can be heard in his

dhaba. He deposes that he never seen the accused and the

deceased together. He further deposes that Jagdish Chander did

not tell him the identity of the man who had gone towards Amb.

He has admitted the suggestion that buses go after every 5-10

minutes from Kuthera Kherla to Amb.

21. PW-13 Rajiv Sharma, deposes that on 6.8.2009 when

he was going to his shop, Jagdish Chander and Mulkh Raj met him

on the way and that he noticed a dead body, was lying in the

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verandah of the Sarai, on which he informed the police on

telephone.

22. PW-14 H.C. Puran Bhag at Singh deposes that on

6.8.2009 five sealed parcels were deposited with him by ASI

Mohinder Singh along with specimen of seal impressions. He

further deposes that on 9.8.2009, another two sealed parcels

along with sample seal were deposited with him by ASI Mohinder

Singh and HHC Dev Raj. He further deposes that on 17.8.2009,

HHC Gurdass Ram went to FSL Junga and deposited the case

property with the laboratory and he on his return handed over the

R.C. to him.

23. PW-15 HHC Gurdass Ram deposes that on 16.8.2009

he went to FSL, Junga and deposited the case property in the

laboratory on 17.8.2009. He further deposes that on his return to

the police station, the RC was given by him to the MHC.

24. PW-16, ASI Tara Singh, who has partly investigated

the case, has deposes that the deceased was got identified from

his wife and mother vide memo Ex.PW1/A. He further deposes

that the spot was got inspected from Sh. Pardeep Kumar,

Surveyor and spot map Ex.PW6/A was got prepared from him.

He further deposes that he recorded the statements of the

witnesses as per their version. He deposes that FIR Ex.PW16/A is

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correct as per the original which has been deposed by this witness

to be bearing the signatures of ASI Arun Dev.

25. PW-17 ASI Mohinder Sing h, deposes that on 6.8.2009,

one Rajiv Sharma gave telephonic information in the police station

to the effect that a dead body is lying in the Sarai. On receipt of

said information, he along with other police officials proceeded to

the spot. He deposes that accused Labh Singh, to whom he

identified in Court, had been apprehended by the people. Several

persons had assembled at the spot. He deposes that he inspected

the spot and prepared the spot map Ex.PW16/A. The dead body

has been deposed by this witness to have been checked by him.

He deposes that photographs, Ex.PW5/A to Ex.PW5/C of the spot

as also the dead body were clicked. He also deposes that he

recorded the statement, Ex.PW9/A of Jagdish Chander under

Section 154 of the Cr.P.C. which was sent to the police station

through constable Gopal Singh for the registration of the FIR. He

deposes that during the course of investigation he conducted the

search of the bag of the accused and recovered pant Ex.P-1

therefrom having blood stains which was taken into possession

vide memo Ex.PW10/A in presence of the witnesses. He further

deposes that blood lying at the spot was lifted and put in a plastic

dibba. He further deposes that the dibba was also wrapped,

sealed and taken into possession vide recovery memo Ex.PW10/A.

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He continue to depose that stone Ex.P-4, bundle of beeries, Ex.P-3

and parna Ex.P-2 which were lying near the dead body were also

wrapped and sealed by him and taken into possession vide

recovery memo Ex.PW10/B in presence of the witnesses. The

accused has been deposed by this witness to have been arrested

after informing him about the grounds of his arrest. Inquest

reports Ex.PW4/B and Ex.PW4/C have been deposed by this

witness to have been prepared at the spot. He further deposes

that the dead body was sent by him for its post mortem

examination to R.H. Una. He further deposes that the wearing

clothes of the accused i.e. T-shirt Ex.P-5 and Lower Ext. P-6

having blood stains were taken into possession vide memo

Ex.PW11/A in presence of the witnesses. He further deposes that

the sample of the seal after its use was handed over to Sh.

Pardeep Kumar. He further deposes that the accused was also

got medically examined from the doctor vide application Ex.PW3/A

and MLC Ex.PW3/B was obtained. He further deposes that the

statements of the witnesses were recorded by him as per their

version. In his cross-examination, he deposes that he arrested the

accused at the instance of Mulkh Raj, Jagdish Chander and

Surinder Kumar. He deposes that when he opened and checked

the bag, the Pradhan of the village was called, although he could

not come as he was busy owing to the fair. He further deposes

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that when he reached the spot, the bag was lying by the side of

the accused. He further deposes that no chadar/sheet was taken

into possession by him.

26. The genesis of the prosecution version is bedrocked

upon the testimony of PW-9, inasmuch as it pinpointedly discloses

the accused to be the person, who has committed the murder of

deceased Sucha Singh. He had seen, as deposed by him, on the

fateful date at about 6.30 a.m., a person donning only a vest,

lying in the verandah of the Sarai and on his having gone near

him, his having noticed blood oozing out from his head and also a

stone lying nearby. At that stage, he had also noticed another

man lying in the corner of the verandah, who however had

covered/masked his face with a Chaddar. However, this witness

omitted to uncover/unmasked his face for perceiving or discerning

his identity, though on inquiry, the identity of the person who was

lying in the vicinity of the deceased in the verandah with his head

covered with a Chaddar, had later come to be disclosed to PW-9

by a person, who was standing to catch a bus. The said incognito

person divulged to PW-9 that the person with his face covered

with a chaddar, lying in the vicinity of the deceased, had

proceeded to Amb. Thereafter, his brother PW-10 accompanied by

PW-12, boarded a scooter to catch him and nabbed the accused at

Kuthera Kherlla. However the testimony of PW-9 corroborated by

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PW-10, his brother, while purportedly communicating the factum

of the accused to be the person who had eliminated the deceased

or murdered him is rendered infirm for the reasons (a) The

principal prosecution witness PW-9 having omitted to when he

visited the site of occurrence and his having noticed the deceased

lying in the verandah with blood oozing from his head and his

having contemporaneously noticed a man lying in the vicinity of

the deceased with his face covered with chaddar, uplift/uncover

the shroud or chaddar for discerning as well as perceiving his

identity, is a significant omission, hence, the testimony of PW-9 of

his having identified the accused in the Court to be the same

person, cannot gain credence with this Court. Obviously, the

initial opportunity available to PW-9 to perceive and discern the

identity of the accused, having rendered unavailed, cannot at all

constrain this Court to conclude that the identification of the

accused in Court by PW-9, hence carries any formidable

conviction. (b) Moreso when the identity of the person, who had

disclosed to PW-9, on the asking of PW-9, as to the place where

the person who was lying in the vicinity of the deceased had

proceeded to, has also remained undisclosed. Hence, when the

identity of the person, who on the asking of PW-9, conveyed to

the latter the place, where the accused had proceeded to, has

remained obscure and camouflaged, it is highly unbelievable that

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PW-9 could other than his having a mere speculative and

imaginative image qua the identity of the accused, carried any

concrete image in his mind qua the identity of accused,

consequently his having identified the accused in Court, is as such

founded on mere conjectures and surmises and cannot be

construed to be carrying any veracity. Therefore, the accused

cannot be construed to have been identified by any credible

evidence on record to be the person, who had committed the

murder of the deceased. Even otherwise with the identity of the

person, who on the asking of PW-9, revealed to the latter, the

identity of the person, who had proceeded to board a bus towards

Una, having remained obscure, hence, when both the factum of

the initial non perception of the accused for, hence, his physical

traits being etched in his mind by unmasking him as also given the

fact that the person, who facilitated the nabbing of the accused by

PW-9 has remained incognito, as such, the identification of the

accused by a obscure person and the further nabbing of the

accused by PW-10 and PW-12, is entirely anvilled upon hearsay

version/conjectural version qua both the identity of the accused as

well as his movement towards Amb. Therefore, a nebulous

version qua the identity of the accused as projected by the

prosecution is highly incredible. Further more what taints the

prosecution version with a stain of falsity is the omission on the

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part of the Investigating Officer to take into possession the

chaddar/sheet, with which the accused had purportedly, while

lying in the vicinity of the dead body of the deceased, covered his

face, hence, precluding PW-9 to discern and observe his identity.

Consequently, omission to take into possession the chaddar with

which the accused had covered his face, despite the fact that PW-

9 alongwith PW-10 and PW-12 had on intimation given to them by

an unknown person of the accused having proceeded to Amb and

then having nabbed him at place Kuthera Kherlla, by either the

aforesaid or by the Investigating Officer on an information qua the

offence having been communicated to the latter, bespeaks the

fact of falsity being lent to the deposition of PW-9 of his being

deterred or precluded to identify the accused as he had covered

his face with a bed sheet/Chaddar. Consequently, with falsity

being lent to the said deposition existing in the examination in

chief of PW-9, constrains this Court to conclude that he has as a

matter of fact had never seen the accused in the vicinity of the

deceased. Therefore, it is to be aptly concluded that he has

propounded a false story qua the genesis of the occurrence.

27. It is also enigmatic and mysterious that even after the

unknown person revealed to PW-9, the identity of the accused,

arising from, for the reasons discussed hereinabove, and of his

movement to Amb, yet PW-10 and PW-12 both proceeded on a

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scooter to apprehend the person and did so at place Kuthera

Kherlla, even without having intimated the police officials or

having solicited the help of the police officials in nabbing the

accused. The above enigma comprised in the omission of the

prosecution witnesses to intimate or apprise the police about the

factum of an unknown person whose conjectural identity and

movement was disclosed by an obscure person to be the person,

who had committed the alleged offence, percolates into the

genesis of the prosecution case and erodes its veracity.

28. PW-12 though had on 5.8.2009 seen the deceased to

be in a drunken and staggering condition and to be moving in the

vicinity of his Dhaba and thereafter having lied down in the sarai

Bhawan has omitted to depose despite the fact that his Dhaba is

located in proximity to the site of occurrence qua the factum of

the accused lying in the vicinity of the deceased as deposed by

PW-9 with his face covered. While imbuing credibility to the

testimony of PW-12 and given the fact that there is omission of

revelation in the deposition of PW-3 Dr. Rahul Katna, who

conducted the post mortem examination of the body of the

deceased of his having collected viscera and sent it for analysis to

FSL for rendition of an opinion qua its contents, spurs a conclusion

that when the collection of viscera at the instance of Doctor who

conducted the Post Mortem examination may have on its

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collection and transmission to the FSL for analysis conveyed the

factum of the deceased having on account of his being heavily

inebriated fallen and sustained injuries. Omission of its collection

on the part of PW-3 or also omission on the part of Investigating

Officer to encourage its collection at the instance of Doctor has

precluded from the attention of this Court, any findings by the

FSL, whether its contents on examination divulged the fact of the

deceased having consumed alcohol or not. Besides, camouflaging

of the aforesaid fact and the inertia and indolence of the

investigation conducted by the Investigating Officer and omission

on the part of Doctor who conducted the post mortem

examination on the body of the deceased, constrains this Court to

conclude on the strength of deposition of PW-12 that the

deceased was heavily inebriated and staggering, which state

hence, sequeled his demise. The factum of the accused carrying in

his bag blood stained pant Ex. P-1 recovered at the instance of

PW-9, PW-10 and PW-12, cannot construed to be a potent link in

the chain of circumstances to constitute it to be begetting a

conclusion that hence the accused is connected in the offence as

alleged, in as much as the manner in which PW-10 and PW-12

apprehended the accused without theirs having a concrete image

of his identity, concomitantly, the blood stained pant recovered

from his bag at that stage by them, appears to be tainted, more

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so for the reason that preceding its recovery there is no disclosure

statement made by a properly identified accused to the police that

he was carrying a pant Ex. P-1 in his bag. Hence, it appears that

pant Ex. P-1 stained with blood of the deceased as was oozing out

from his head was inserted inside the bag purportedly carried by

the accused at the relevant time so as to falsely connect him in

the murder of the deceased. It can also be concluded that the

blood of the deceased on stone Ex. P-4 as well as on other items,

is a sequel to the concerted effort or endeavor on the part of the

investigating Officer to after staining them with the blood of the

deceased plant them against the accused so as to falsely connect

him with the commission of murder of the deceased.

29. For the foregoing reasons, the appeal is allowed and

the judgment of the learned trial Court is set-aside.

Accused/appellant is acquitted of the offences charged. He be set

at liberty forthwith, if not required in any other case. Fine amount,

if any, deposited by the accused/appellant, be refunded to him.

Records be sent back.

(Rajiv Sharma)

Judge

10.09.2014.

(Sureshwar Thakur)

(Jai/priti) Judge

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