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

Cr. Appeal No. 416 of 2008

Judgment reserved on: 5

th

August, 2014

Date of Decision: September 23

rd

, 2014.

_________________________________________________________________

State of Himachal Pradesh …..Appellant.

Vs.

Chanalu Ram alias Kuber son of Shri Mela Ram

and others …Respondents

.

Coram:

Hon’ble Mr. Justice Sanjay Karol, Judge.

Hon’ble Mr.Justice P.S.Rana, Judge

.

Whether approved for reporting1?. Yes.

For the Appellant: Mr. B.S. Parmar, Additional Advocate

General with Mr. Vikram Thakur, Deputy

Advocate General.

For the Respondents: Mr. Ramesh Sharma, Advocate.

P.S.Rana, J.

JUDGMENT: Present appeal filed against the judgment

passed by learned Sessions Judge Chamba Division in Sessions

trial No. 12 of 2007 titled State of H.P. vs. Chanalu Ram @ Kuber

and others.

BRIEF FACTS OF THE PROSECUTION CASE:

2. Brief facts of the case as alleged by prosecution are

that on dated 9.7.2006 at 10/11 AM at village Maniyoga Pargana

Himgiri Tehsil Salooni District Chamba accused persons in

furtherance of common intention committed murder of deceased

Desh Raj son of Baldev Ram resident of village Khudri, Pargana

Whether reporters of the Local papers are allowed to see the judgment?. Yes.

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 2

Pichhla Diur Tehsil Salooni District Chamba. It is further alleged

by prosecution that accused persons in furtherance of common

intention caused disappearance of evidence of murder of said

Shri Desh Raj with intention to screen themselves from legal

punishment. It is further alleged by prosecution that on dated

9.7.2006 Desh Raj deceased had gone to village Maniyoga in

order to attend the marriage from where he had to join his

duties. It is also alleged by prosecution that in July 2006 there

was a marriage of the brother of PW3 Lachho Ram in village

Manyoga and accused persons being members of the band party

were also present in said marriage. It is alleged by prosecution

that after the marriage was over accused persons came to house

of PW1 Smt. Nardai wife of Gian at about 8/9 PM and started

beating the drum/band in their house and Desh Raj deceased

was also with them at that time. It is further alleged by

prosecution that to co-accused Pyar Singh put his hand on

shoulder of Nardai’s daughter and deceased Desh Raj objected

to it and he gave a slap to co-accused Pyar Singh and thereafter

there was a quarrel between the accused persons and deceased

Desh Raj and PW1 Nardai paci fied the matter and thereafter

deceased and accused persons left the house of Nardai. It is also

alleged by prosecution that after 2/3 days wife of deceased Desh

Raj came to the house of PW1 Nardai and asked her as to

whether her husband Desh Raj came to her house with accused

persons. It is further alleged by prosecution that thereafter

Nardai told that deceased came to her house and also told that

Desh Raj deceased had left her house along with accused

persons. It is further alleged by prosecution that on dated

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 3

11.7.2006 PW13 Baldev Ram came to his home in the evening

and he enquired from the family members about the

whereabouts of Desh Raj upon wh ich he was told that he had

gone to attend the marriage from where he would go to his

duties. It is also alleged by prosecution that thereafter Baldev

Ram ran up at P.S. Tissa but he was informed that deceased had

not joined his duties and then he went to village Manyoga in

order to find out about whereabouts of deceased Desh Raj and

enquired from Giano of Manyoga who told that deceased Desh

Raj left to her house along with accused persons. It is further

alleged by prosecution that thereafter Baldev Ram came to his

house and called the Pardhan and also called 10-15 other

persons where co-accused Kewa l had given extra judicial

confession that he along with other accused persons have killed

deceased Desh Raj with a blow of stone and thereafter concealed

the dead body of deceased. It is further alleged by prosecution

that thereafter matter was reported to the police and FIR

Ext.PW10/B was registered. It is also alleged by prosecution that

photographs of dead body were also got clicked and inquest

reports Ext.PW11/A and Ext.PW11/B were prepared and dead

body was sent to Regional Ho spital Chamba for postmortem

through PW9 C. Deep Singh and HHC Kishan Chand. It is alleged

by prosecution that site plan of spot Ext.PW11/C was prepared

and post mortem of deceased was conducted and as per opinion

of medical officer cause of death was head injury which was

caused with a blow of stone Ext.P5. It is further alleged by

prosecution that as per FSL report there was no evidence of

alcohol or poison in the stomach, small intestines, spleen, kidney

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 4

and blood of the deceased. It is further alleged by prosecution

that thereafter co-accused Chan nalu had given disclosure

statement that he could get recovered the stone with which

deceased was killed. It is further alleged by prosecution that as

per disclosure statement of co-accused Chanalu stone was

recovered and same was took into possession vide recovery

memo Ext.PW11/E. It is further alleged by prosecution that site

plan Ext.PW11/G and jamabandi Ext.PW6/C were obtained from

PW6 Mohinder Singh Patwari vi de application Ext.PW6/A and

clicked photographs are Ext.PX/1 to Ext.PX/8 and negatives of

photographs are Ext.PX/9 to Ext.PX/16. It is further alleged by

prosecution that parcels were deposited with the malkhana and

thereafter same were sent for chemical examination vide RC No.

39/06 through C. Deep Ram.

3 Charge was framed against accused persons by

learned trial Court on dated 28.4.2007 under Section 302 read

with Section 34 IPC and under Section 201 read with Section 34

IPC. Accused persons did not plead guilty and claimed trial.

4. The prosecution examin ed the following witnesses in

support of its case:-

Sr.No. Name of Witness

PW1 Smt. Nardai

PW2 Tara Chand

PW3 Lachho Ram

PW4 Mohar Singh

PW5 Dr. K.P. Singh

PW6 Mohinder Singh

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 5

PW7 Kuldeep Kuma r

PW8 Chain Singh

PW9 Deep Kuma r

PW10 HC Ashok Kuma r

PW11 ASI Kaur Chand

PW12 ASI Mukesh Kuma r

PW13 Baldev Ram

PW14 Man Singh

PW15 Somraj

PW16 Jai Singh

PW17 Gianu

4.1 Prosecution also produced following piece of

documentary evidence in support of its case:-

Sr.No. Description

:

Ex.PW2/A. Seizure memo of clothes.

Ex.PW5/A. Application to Medical Officer for

post mortem of deceased Desh

Raj.

Ex.PW5/B FSL report

Ex.PW5/C Post mortem report of Desh Raj

Ex.PW6/A Application to Tehsildar

Ex.PW6/B Tatima

Ex.PW6/C Jamabandi for the years

2002-03

Ex.PW8/A Statement under Section 154

Cr.P.C. of Shri Baldev Ram

Ex.PW10/A Copy of DD No. 4/12.7.2006

Ext.PW10/B. Copy of FIR

Ex.PW11.A

and

Inquest reports

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 6

Ext.PW11/B

Ex.PW11/C Site plan.

Ex.PW11/D Statement under Section 27 of

Evidence Act.

Ext.PW11/E Seizure memo of stone Ext.P5.

Ext.PW11/F Seal impression

Ext.PW11/G Site plan

Ext.PW11/H Seizure memo of clothes

Ext.PW11/J Seal impressions

Ext.PW11/D

and Ext.DA

Statement of Nardai under

Section 161 Cr.P.C. for

confrontation purpose.

Ext.PW11/L FSL report

Ext.PX-1 to

8

Photographs

Ext.PX-9 to

16

Negatives of photographs

Ext.P1 to

Ext.P5

Shirt, pant of accused Piar

Singh, shirts of accused Chanalu

and stone

5. Statements of the accused persons were also

recorded under Section 313 Cr.P.C. They have stated that they

are innocent and they have been falsely implicated in this case.

Learned trial Court acquitted all the accused by way of giving

them benefit of doubt.

6. Feeling aggrieved against the judgment passed by

learned Trial Court State of H.P. filed present appeal under

Section 378 of Code of Criminal Procedure.

7. We have heard learned Additional Advocate General

appearing on behalf of the State of H.P. and learned Advocate

appearing on behalf of the respondents and also perused the

entire record carefully.

8. Question that arises for determination before us in

this appeal is whether learned trial Court did not properly

appreciate oral as well as documentary evidence placed on

record and whether learned trial Court had committed

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 7

miscarriage of justice to the appellant as mentioned in grounds

of appeals.

ORAL EVIDENCE ADDUCED BY PROSECUTION:

9.1. PW1 Nardai has stated that there was a marriage in July 2006 of bother of Shri Lachho Ram and accused persons

present in Court were members of the band party in the

marriage ceremony. She has stated that after marriage

ceremony was over accused came to her house at about 8/9 PM

and they beat the band in he r house. She has stated that

deceased Desh Raj was also with them at that time. She has

stated that thereafter co-accused Pyar Singh put his hand on the

shoulder of her daughter and deceased Desh Raj objected and

slapped co-accused Pyar Singh. She has stated that thereafter

there was a quarrel between the accused persons and deceased

Desh Raj and she pacified them. She has stated that thereafter

all of them left her house including deceased Desh Raj. She has

further stated that after 2/3 days wife of deceased Desh Raj

came to her house and asked her as to whether her husband

Desh Raj came to her house with accused. She has stated that

she informed the wife of deceased Desh Raj that Desh Raj had

left her house along with accused persons. She has stated that

accused persons remained in her house for half an hour. She has

stated that when quarrel took place in her house between

accused persons and deceased Desh Raj there was none except

her and her daughter. She has admitted that deceased was

intoxicated. Self stated that accused persons have also took

alcohol at that time. She has denied suggestion that deceased

Desh Raj had died due to fall from hillock. She has denied

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 8

suggestion that accused persons did not come to her house. She

has also denied suggestion that there was no quarrel between

deceased Desh Raj and accused persons in her house.

9.2 PW2 Tara Chand has st ated that on dated 15.7.2006

he brought the clothes of accused Chanalu and Piar Singh from

their houses which were worn by accused persons and same

were took into possession vide seizure memo. He has stated that

shirt Ext.P1 and pant Ext.P2 belonged to accused Piar Singh and

further stated that shirt Ext.P3 and pant Ext.P4 belonged to co-

accused Chanalu Ram. He has denied suggestion that he had not

gone to the houses of accused persons and has also denied

suggestion that he had not brought the clothes of co-accused

Chanalu and co-accused Piar Singh.

9.3 PW3 Lachho Ram has stated that there was marriage

of his younger brother Paras Ram on dated 7.7.2006. He has

stated that accused persons present in Court were members of

the band party. He has stated that band party was engaged by

him. He has further stated that deceased Desh Raj had also

attended the marriage. He has stated that Dham (Final function

of marriage ceremony) was celebrated on dated 9.7.2006. He

has stated that thereafter he gave ` 1800/- to accused persons

on Dham (Final function of the marriage ceremony) and

thereafter accused persons left his house. He has stated that

deceased Desh Raj also accompanied accused persons and

thereafter they went to the house of Gianu where they also beat

the drum. He has stated that in the house of Gianu quarrel took

place between accused persons and deceased Desh Raj. He has

stated that thereafter accused persons and Desh Raj left the

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 9

house of Gianu at about 9/9.30 PM. He has further stated that on

dated 11.7.2006 wife of Desh Raj came to his house and

enquired about Desh Raj. He has stated that he told her that

deceased Desh Raj had left his house with accused persons and

went to the house of Gianu on the same day of Dham (Final

function of marriage). He has stated that thereafter dead body of

Desh Raj was found in Manyoga on dated 12.7.2006. He has

stated that he suspected that accused persons have killed Desh

Raj. He has stated that no quarrel took place in his presence

between accused persons and deceas ed Desh Raj. He has stated

that Desh Raj had consumed liquo r on that day. He has stated

that he does not know that deceased Desh Raj had fallen from

hillock under the influence of liquor and died due to fall.

9.4 PW4 Mohar Singh has stated that there was a

marriage on 23

rd

Ashad 2006 in the house of Shri Lachho Ram of

his brother Shri Paras Ram. He has stated that accused persons

present in Court were members of band party. He has stated that

accused persons came to his house in order to spend the night

and they reached at 10 or 11 PM and he provided them bedding

and they stayed during night in his house. He has stated that

wife of deceased Desh Raj came to his house in order to enquire

about deceased Desh Raj but he told her that he does not know

about deceased. He has further stated that thereafter dead body

of deceased Desh Raj was found in Manyoga hillock. He has

stated that he heard that Desh Raj was with accused persons. He

has stated that he heard that accused persons had killed

deceased Desh Raj. He has stated that he does not know that

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 10

deceased Desh Raj had consumed liquor. He has stated that he

does not know that deceased had died due to fall.

9.5 PW5 Dr. Kulvinder Pal Singh has stated that he was

posted as Medical Officer in RH Chamba and further stated that

one Desh Raj son of Baldev Ram aged 32 years resident of

Khudri District Chamba was brought to hospital through police

docket Ext.PW5/A. He has conducted the post mortem

examination of deceased Desh Raj on dated 13.7.2006 at 11 AM

and has also observed as under. He has stated that on external

appearance deceased was about 30 years male well built with

black long hair wearing striped T-shirt, blue jean, blue underwear

and black socks and shoes. He has further stated that his rigor

mortis was present and entire body and face was studded with

maggots. He has stated that entire body and face along with

both eyes were eaten up by maggots. He has stated that no

mark of ligature seen and there was a bruise 2x2 cms over the

left temporal area. He has stated that on examination of cranium

and spinal cord hematoma was present 3x3 cm below the skin of

left temporal part of skull with overlying skin having swelling and

bruise. He has stated that linear fracture 3 cm long over the left

temporal bone and brain matter was liquefied and were

containing shades of liquid blood. He has further stated that

thorax and abdomen were found normal and on muscles bones

and joints no injury was found. He has stated that cause of death

was head injury. He has stated that injury was ante-mortem. He

has stated that as per perusal of FSL report Ext.PW5/B there was

no evidence of alcohol or poison in stomach, small intestines,

spleen, kidney and blood. He has stated that as per opinion the

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 11

cause of death was head injury and he issued post mortem

report Ext.PW6/B which is in his hand and bears his signatures.

He has stated that injury found on head of deceased could be

caused by stone Ext.P5. He has stated that injuries mentioned in

post mortem report could be caused if deceased struck against

the hard surface.

9.6 PW6 Mohinder Singh has stated that he is posted as

Patwari in Patwar Circle Bhanjwar Tehsil Salooni District Chamba

for the last more than three years. He has stated that application

Ext.PW6/A was marked to him by Tehsildar for conducting the

demarcation of place of incident. He has stated that he visited

the spot on dated 5.9.2006 along with police officials and

prepared tatime Ext.PW6/B, which is in his hand and bears his

signatures and he issued copy of jamabandi Ext.PW6/C . He has

stated that place of incident falls in Khasra No. 330. He has

denied suggestion that he has prepared tatima in Patwarkhana

and also denied suggestion that he did not visit the place of

incident.

9.7 PW7 Kuldeep Kumar has stated that he is

photographer by profession and on dated 12.7.2006 he was

joined by police in the investigation and he clicked photographs

Ext.P2 to Ext.P9 and negatives are Ext.P10 to Ext.P17 and after

developing the same were handed over to police officials. He has

stated that photographs did not bear his signatures. He has

denied suggestion that he did not click the photographs of the

spot.

9.8 PW8 Chain Singh has stated that on dated 12.7.2006

he was present and joined the police investigation. He has stated

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 12

that ASI Kaur Chand P.S. Kihar recorded statement of Baldev Raj

as per his version and after making endorsement on ruka at

Manyoga Phat Ext.PW8/A the same was sent to police station

Kihar for registration of case through him on the basis of which

FIR was registered. He has further stated that after making the

endorsement on the FIR in red circle the file was handed over to

him which he took to the spot and handed over to ASI Kaur

Chand. He has denied suggestion that he was not present at the

spot. He has also denied suggestion that no ruka was given to

him.

9.9 PW9 C. Deep Kumar ha s stated that prior to his

posting at Surangani Police Post he was posted in P.S. Kihar. He

has stated that on dated 12.7.2006 he along with HHC Kishan

Chand was deputed to get the dead body of deceased Desh Raj

post mortem at R.H. Chamba an d he got the same post mortem

at R.H. Chamba and obtained the post mortem report on dated

14.7.2006 along with viscera and one parcel which were handed

over to him by Medical Officer who conducted the post mortem.

He has stated that post mortem was conducted on dated

13.7.2006 and on dated 17.7.2006 MHC Ashok Kumar handed

over to him viscera, four parcels and one envelope for being

taken to FSL Junga vide RC No. 39/2006 which was deposited

there by him on dated 19.7.2006. He has stated that case

property was not tampered and after depositing the articles with

FSL he handed over the RC back to MHC Ashok Kumar. He has

denied suggestion that he did not take the case property to FSL

Junga.

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 13

9.10 PW10 HC Ashok Kumar has stated that he remained

posted as MHC P.S. Kihar from the year 2003 to 2006. He has

stated that on dated 12.7.2006 vide rapat No. 4 of D.D.

Ext.PW10/A, ASI Kaur Chand along with other police officials had

proceeded to village Sunj where dead body of SPO Desh Raj was

stated to be lying. He has stated that ASI Kaur Chand sent ruka

Ext.PW8/A through SPO Chain Singh to P.S. on the basis of which

FIR Ext.PW10/B was recorded by him at 8.15 PM which bears his

signatures. He has stated that thereafter file was sent to spot for

further investigation to ASI Kaur Chand and further stated that

on dated 14.7.2006 HHC Kishan Chand deposited viscera duly

sealed with 11 seals and one parcel with four seals of RH

Chamba and one envelope which was addressed to FSL Junga.

He has stated that he entered the same in malkhana register and

on dated 15.7.2006 ASI Kaur Chan d deposited with him three

parcels duly sealed with seals ‘K’ and ‘H’ along with specimen

seals. He has further stated that on dated 17.7.2006 he sent the

aforesaid sealed parcels to FSL Junga vide RC No. 39/2006

through C. Deep Kumar for chemical analysis. He has stated that

case property was not tampered with till it remained in his

custody. He has denied suggestion that no case property was

deposited with him. He has denied suggestion that he did not

sent the same to FSL Junga.

9.11 PW11 ASI Kaur Chand has stated that in the year

2006 he was posted in P.S. Kiha r as ASI/I.O. and on dated

12.7.2006 he along with other police officials in order to verify

the report No. 4 were present at Manyoga Phat where statement

of Baldev Ram was recorded. He has stated that statement of

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 14

Baldev was recorded under Section 154 Cr.P.C. Ext.PW8/A and

same was sent to P.S. Kihar for registration of FIR. He has stated

that photographs of dead body were clicked and inquest reports

Ext.PW11/A and Ext.PW11/B were prepared and dead body was

sent for post mortem through C. Deep Ram and HHC Kishan

Chand. He has stated that he also prepared site plan of spot

Ext.PW11/C and on dated 13.7. 2006 all four accused persons

were arrested. He has further stated that thereafter accused

persons were produced before Chief Judicial Magistrate Chamba

and five days police remand was obtained. He has stated that on

dated 15.7.2006 accused Chanalu Ram made a disclosure

statement Ext.PW11/D in presence of witnesses Hoshiar Singh

and Maan Singh that he could get recovered the stone with

which he had killed deceased Desh Raj. He has stated that he

had given disclosure statement that he hit the stone on head of

Desh Raj. He has stated that disclosure statement of co-accused

Chanalu Ram was reduced into writing and thereafter co-accused

Chanalu led the police party to Manyoga Phat and located the

place where he had concealed the stone. He has stated that as

per location shown by co-a ccused Chanalu the stone was

recovered but due to rainy season the stone was wet and blood

stains were washed away. He has stated that stone was took into

possession vide memo Ext.PW11/E. He has stated that stone is

Ext.P5. He has stated that clothes of accused which were worn

by accused at the time of incident also took into possession. He

has stated that clothes worn by accused at the time of incident

were washed away. He has stated that clothes of co-accused

Chanalu are Ext.P3 and Ext.P4 and clothes of co-accused Pyaru

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 15

are Ext.P1 and Ext.P2 and they were took into possession vide

seizure memo. He has stated that tatima of spot is Ext.PW6/B

and jamabandi is Ext.PW6/C and photographs are Ext.PX-1 to

Ext.PX-8 and negatives are Ext.PX-9 to Ext.PX-16. He has stated

that he has also filed application Ext.PW6/A for post mortem of

deceased. He has stated that after receipt of report from FSL

Junga Ext.PW5/B and Ext.PW11/L he handed over the case file to

SI/SHO Mukesh Kumar. He ha s denied suggestion that as

deceased was police officer false case has been filed against the

accused persons.

9.12 PW12 ASI Mukesh Kuma r has stated that he was

posted at P.S. Kihar since 2005. He has stated that after

completion of investigation and its verification he prepared

challan and filed before the Court.

9.13 PW13 Baldev Ram has stated that he is running a

hardware shop at village Diur. He has stated that his son Desh

Raj was posted as SPO in P.S. Tissa and was posted at Himgiri

Check post at the relevant time. He has stated that on dated

09.07.2006 he had gone to village Manyoga in order to attend

the marriage. He has stated that from marriage place deceased

decided to join his duties directly. He has further stated that on

dated 11.7.2006 he came to his home in the evening and he

enquired about deceased Desh Raj upon which he was informed

that deceased had gone to attend the marriage and from

marriage place deceased decided to attend his duties. He has

stated that thereafter he rang up at Police Station Tissa but it

was told that deceased had not joined his duties. He has further

stated that then he went to village Manyoga in order to find out

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 16

about whereabouts of Desh Raj and enquired from Giano of

village Manyoga who told that deceased Desh Raj had left her

house with accused persons namely Chanalu Ram, Piar Singh,

Kewal and Dharam Chand present in Court. He has stated that

thereafter he came to his house and called Pardhan and other

10-15 persons and co-accused Kewal Ram was also called. He

has stated that co-accused Kewal Ram told that he along with co-

accused Chanalu Ram, Piar Singh and Dharam Chand have killed

Desh Raj with blow of stone and thereafter deceased was

dragged to Manyoga hillock and wa s concealed there. He has

stated that thereafter his de ad body was recovered and

photographs Ext.P1 to Ext.P8 clicked and negatives of

photographs Ext.P9 to Ext.P16 prepared. He has stated that

thereafter dead body of Desh Raj was sent to R.H. Chamba for

post mortem purpose. He has de nied suggestion that deceased

used to take alcohol. He has denied suggestion that under the

influence of liquor deceased fell down from hillock and died. He

has denied suggestion that co-accused Kewal did not give any

extra judicial confession.

9.14 PW14 Man Singh has st ated that on dated 15.7.2006

co-accused Chanalu @ Kuber had made a disclosure statement

Ext.PW11/D that he had concealed one stone and he could get it

recovered. He has stated that thereafter accused led the police

party to Manyoga hillock and stone Ext.P5 was recovered at the

instance of co-accused which was took into possession vide

seizure memo. He has stated that stone Ext.P5 is the same which

was recovered at the instance of co-accused Chanalu. He has

stated that clothes of co-accused Piar Singh were took into

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 17

possession. He has denied suggestion that no stone was

recovered as per disclosure statement given by co-accused and

he has also denied suggestion that co-accused Chanalu did not

give any disclosure statement.

9.15 PW15 Som Raj has stated that on dated 9.7.2006 his

brother Desh Raj had gone to attend a marriage in village

Manyoga from where he was to join his duties at P.S. Tissa. He

has stated that after 2/3 days they enquired about him from P.S.

Tissa and they were told that he had not joined his duties and

then they enquired about Desh Raj in village Manyoga. He has

further stated that he came to know that deceased was in the

company of accused persons and it also came to his knowledge

that accused were taking liquor during whole day. He has stated

that deceased and accused persons left the house at about 10

PM. He has stated that co-accused Kewal Singh told that Desh

Raj was killed by accused persons in the house and thereafter his

dead body was dragged to Manyoga hillock. He has stated that

he also disclosed that deceased was killed at the instance of Tara

Chand another SPO. He has stated that he was not present in the

marriage. He has stated that co-accused Kewal disclosed the

above incident to them in presence of his father Baldev Ram,

Giano, Hans Raj and Satpal etc. He has denied suggestion that

co-accused Kewal did not disclose anything.

9.16 PW16 Jai Singh has stat ed that on dated 9.7.2006 he

was present in a marriage in village Manyoga and accused

persons were the members of band party in the marriage. He has

stated that accused persons teased a girl in the marriage and

deceased Desh Raj objected to it and quarrel took place. He has

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 18

further stated that accused persons left the marriage house in

the evening after the marriage was over and deceased Desh Raj

also accompanied them to his house as he was resident of area

of accused persons. He has stated that on dated 12.7.2006 they

came to know that deceased Desh Raj was murdered in the night

of dated 9.7.2006. He has stated that dead body of deceased

was found and photographs clicke d and thereafter dead body

was took into possession. He has stated that he remained

Pardhan of Gram Panchayat Pich la Diur. He has stated that

quarrel took place in the house of Gianu. He has denied

suggestion that no quarrel took place between deceased and

accused persons. He has stated that quarrel took place for 10-15

minutes. He has stated that he also pacified the accused and

deceased. He has stated that dead body was lying open in the

said hillock. He has denied suggestion that he was not present in

the marriage. He has denied suggestion that no quarrel took

place between deceased and accused persons.

9.17 PW17 Gianu has stated that there was marriage in

village Manyoga in the house of Lachho Ram of his brother Paras

Ram. He has stated that accused persons present in Court were

members of band party in the marriage. He has stated that

deceased Desh Raj was also present in the marriage. He has

stated that co-accused Pyar Singh teased his daughter upon

which Desh Raj objected and slapped co-accused Pyar Singh but

they separated them. He has stated that during night accused

persons left the marriage house and deceased Desh Raj also

went with them. He has stated that on the fourth day dead body

of Desh Raj was found in Manyoga hillock in pasture land. He has

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 19

stated that accused did not tease his daughter in his presence.

He has stated that deceased Desh Raj had also consumed liquor.

He has stated that they all took liquor on the marriage day

including accused persons. He has stated that he does not know

that deceased Desh Raj died due to fall on the Manyoga hillock

under the influence of liquor.

10. Statements of accused persons recorded under

Section 313 Cr.P.C. Accused persons have stated that they are

innocent and they have been falsely implicated in present case.

Accused persons did not lead any defence evidence.

(1)Last seen theory not sufficient to convict accused persons

11. Submission of learned Additional Advocate General appearing on behalf of the State that accused persons be

convicted on the basis of last seen theory in present case is

rejected being devoid of any force for the reasons hereinafter

mentioned. It is the case of prosecution that on dated 9.7.2006

the deceased went to village Manyoga to attend the marriage

ceremony and thereafter he did not come back to his house. It is

the story of prosecution that deceased was lastly seen in the

company of accused persons on dated 09.07.2006. It is proved

on record that FIR was recorded on dated 12.7.2006 at 8.15 AM.

It is proved on record that dead body of deceased was found in

the open place on dated 12.7.2006. It is well settled law that last

seen theory comes into play only when time gape between the

point of time when accused and deceased were seen together

and dead body of deceased found is so small that possibility of

any person other than the accused being the author of crime

becomes impossible.

(See AIR 2008SC 2819 titled Kusuma Ankama

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 20

Rao vs. State of A.P.) It is well settled law that in order to convict

the accused on the concept of last seen theory intervention of

third person should be ruled out beyond reasonable doubt. In

present case accused persons and deceased were lastly seen

together on dated 9.7.2006 and thereafter dead body of

deceased was found in open place on dated 12.7.2006. We are of

the opinion that intervention of possibility of third person from

dated 9.7.2006 to 12.7.2006 could not ruled out in present case

in the open place where dead bo dy of deceased was found. In

view of above stated facts we hold that it is not expedient in the

ends of justice to convict the accused persons on last seen

theory.

(2) Circumstantial evidence is not sufficient to convict the accused

persons in the present case

12. Another submission of learned Additional Advocate

General appearing on behalf of the State that accused be

convicted on the basis of circumstantial evidence in present case

is rejected being devoid of any force for the reasons hereinafter

mentioned. In order to convict the accused on the circumstantial

evidence, the prosecution is under legal obligation to prove (i)

That circumstances from which conclusion is drawn should be

fully proved (ii) That circumstances should be conclusive in

nature (iii) That all the facts so established should be consistent

only with the hypothesis of guilt and inconsistent with innocence

(iv) That circumstance should, to a moral certainty exclude the

possibility of guilt of any person other than the accused.

(See AIR

1992 SC Court 2045 titled State of U.P. vs. Dr. Ravindra Prakash Mittal,

See AIR 1952 SC 343 Hanumant Govind Nargundkar and another vs.

State of Madhya Pradesh, See AIR 2010 SC Court 762 titled Musheer

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 21

Khan @ Badshah Khan and another vs. State of Madhya Pradesh, See

AIR 2009 SC 56 titled Shivaji @ Dadya Shankar Alhat vs. State of

Maharashtra, See AIR 1979 Apex Court 1410 titled State of Maharashtra

vs. Annappa Bandu Kavatage, See AIR 1979 Apex Court 826 titled S.P.

Bhatnagar and another vs. The State of Maharashtra, See AIR 1989 SC

1890 titled Ashok Kumar Chatterjee vs. State of Madhya Pradesh, See

AIR 1992 SC 758 titled Sakharam vs. State of Madhya Pradesh, See AIR

1975 SC 241 titled Dharm Das Wadhwani vs. The State of Uttar Pradesh,

See AIR 1954 SC 621 titled Bhagat Ram vs. State of Punjab.)

It is also

well settled law that in orde r to convict the accused in

circumstantial evidence five golden principles should be proved

(i) That circumstances from which the conclusion of guilt is to be

drawn should be fully established and the accused must be and

not merely may be guilty (ii) That facts so established should be

consistent only with the hypothesis of the guilt of the accused

(iii) That circumstances should be of a conclusive nature and

tendency (iv) That they should exclude every possibility of

innocence of accused (v) That there must be a chain of evidence

so complete as not to leave any reasonable ground for the

conclusion consistent with the innocence of the accused and

must show that in all human probability the act must have been

done by the accused.

(See 2013 Cri.L.J. 2040, titled Prakash vs. State

of Rajasthan (DB).

13. In present case accused persons were lastly seen in

the company of deceased on dated 9.7.2006 and thereafter dead

body of deceased was found in open place on dated 12.7.2006

after a gap of three days and there is no evidence on record in

order to prove that place where dead body of deceased was

found remained non-accessible to any third person. It is well

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 22

settled law that in an open place accessibility of any third person

cannot be ruled out. Dead body of deceased was found in open

place and open place was accessible to third person. In present

case circumstantial evidence is not sufficient to convict the

accused persons.

(3) Extra judicial confession of accused person is not sufficient to convict

the accused persons in present case

14. Submission of learned Additional Advocate General

appearing on behalf of the State that on the basis of extra

judicial confession of co-accused Kewal Ram accused persons be

convicted is also rejected being devoid of any force for the

reasons hereinafter mentioned. It is well settled law that there

are two types of confessions in Criminal law. (1) Judicial

confession (2) Extra judicial confession. As per Section 24 of

Indian Evidence Act, confession in criminal case caused by

inducement threat or promise is irrelevant confession. It is well

settled law that confession in criminal case should be voluntarily

in nature and should be free from any pressure. PW13 Baldev

Ram when he appeared in witness box did not state that co-

accused Kewal Ram had given extra judicial confession

voluntarily. The word ‘voluntarily’ is missing in testimony of

PW13 Baldev Ram qua extra judicial confession of co-accused

Kewal Ram. In absence of word ‘voluntarily’ qua confession in

the testimony of PW13 Baldev Ra m it is not expedient in the

ends of justice to convict the accused persons on the concept of

extra judicial confession.

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 23

(4) Disclosure statement given by co-accused Chanalu under Section 27

of Indian Evidence Act is not helpful to prosecution in present case

15. Learned Additional Advocate General appearing on

behalf of the State submitted that in view of disclosure

statement of co-accused Chanalu Ram under Section 27 of Indian

Evidence Act accused persons be convicted in present case is

rejected being devoid of any force for the reasons hereinafter

mentioned. Court has carefully perused the disclosure statement

given by co-accused Chanalu under Section 27 of Indian

Evidence Act. As per Section 27 of Indian Evidence Act stone was

recovered as per disclosure statement of co-accused Chanalu.

The prosecution story that stone was recovered as per disclosure

statement of co-accused Chanalu under Section 27 of Indian

Evidence Act is not connected with weapon of offence because

no finger prints of accused persons were found upon the stone

and no blood of deceased was found upon the stone in order to

prove beyond reasonable doubt th at murder of deceased was

committed with stone which was recovered at the instance of co-

accused Chanalu Ram.

(5) Chemical Analysis report Ext.PW11/L is also not helpful to the

prosecution

16. As per Chemical Analysis report no human blood was

found upon the stone, shirt of co-accused Piar Singh, pant of co-

accused Piar Singh, pant of co-accused Chanalu Ram and shirt of

co-accused Chanalu Ram. In absence of any human blood upon

the stone, upon the above stated shirts and pants worn by

accused persons at the time of incident it is not expedient in the

ends of justice to convict the accused persons in the present

case.

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 24

(6) Photographs placed on record are also not helpful to the prosecution

17. Submission of learned Additional Advocate General

appearing on behalf of the State that accused persons be

convicted on the basis of photographs placed on record along

with negatives is also rejected being devoid of any force for the

reasons hereinafter mentioned. We have carefully perused the

photographs placed on record along with negatives. Photographs

are Ext.PX/1 to Ext.PX/8 and negatives are Ext.PX/9 to Ext.PX/18.

The photographs placed on record proved beyond reasonable

doubt that dead body of deceased was found in an open pasture

place which was approachable to the general public. In view of

the fact that place where dead body was found was

approachable to the general public it is not expedient in the ends

of justice to convict the accused persons because in present case

possibility of intervention of third person in criminal case could

not be ruled out. It is not proved on record beyond reasonable

doubt by prosecution that place where dead body of deceased

was found was not approachable to any third person except the

accused persons.

18. Submission of learned Additional Advocate General

appearing on behalf of the State that as per oral as well as

documentary evidence placed on record accused persons be

convicted in present case is rejected being devoid of any force

for the reasons hereinafter mentioned. It is well settled law that

suspicion however strong cannot take place of proof.

( See 2005)9

SCC SC 765 (DB) titled Anjlus Dungdung vs. State of Jharkhand)

It is

well settled law that Court must guard against the danger of

allowing conjecture or suspicion to take place of legal proof.

(See:

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 25

AIR 1967 SC 520 titled Charan Singh vs. The State of UP See: AIR 1971

SC 1898

titled (1) Gian Mahtani and (2) Budhoo and others vs. State of

Maharashtra).

It was again held in case AIR 1979 SC 1382 titled

State (Delhi Administration) vs. Gulzarilal Tandon

that suspicion

however grave cannot take place of proof.

(also see AIR 1984 SC

1622 titled Sharad Birdhichand Sarda vs. State of Maharashtra

, See: AIR

1983 SC 906

titled Bhugdomal Gangaram and others vs. the State of

Gujarat

See: AIR 1985 SC 1224 titled State of U.P. vs. Sukhbasi and

others)

It is well settled principle of law that if two reasonable

conclusions are possible on the basis of the evidence on record,

the appellate Court should not disturb the finding of acquittal

recorded by the learned trial Court.

(See (2013)2 SCC 89 titled

Mookkiah and another vs. State

See 2011(11) SCC 666 titled State of

Rajasthan vs. Talevar

, See AIR 2012 SC (Supp) 78 titled Surendra vs.

State of Rajasthan

, See 2012(1) SCC 602 State of Rajasthan vs. Shera

Ram @ Vishnu Dutta.)

It is also well settled principle of law (i) That

Appellant Court should not ordinarily set aside a judgment of

acquittal in a case where two views are possible though the view

of the appellate Court may be mo re probable. (ii) That while

dealing with a judgment of a cquittal Appellant Court must

consider entire evidence on record so as to arrive at a finding as

to whether views of learned trial Court are perverse or otherwise

unsustainable. (iii) That Appellate Court is entitled to consider

whether in arriving at a finding of fact, learned trial Court failed

to take into consideration any admissible fact (iv) That appellate

Court is entitled to consider whether in arriving at findings of fact

learned trial Court took into consideration non-admissible

evidence.

(See AIR 1974 SC 2165 titled Balak Ram and another vs.

::: Downloaded on - 19/10/2022 20:36:48 :::CIS

High Court of H.P. 26

State of U.P., See (2002)3 SCC 57, titled Allarakha K. Mansuri vs. State

of Gujarat, See (2003)1 SCC 398 Raghunath vs. State of Haryana, See

AIR 2007 SC 3075 State of U.P. vs. Ram Veer Singh and others, See AIR

2008 SC 2066 (2008) 11 SCC 186 S. Rama Krishna vs. S. Rami Raddy (D)

by his LRs. & others. Sambhaji Hindurao Deshmukh and others vs. State

of Maharashtra, (2009)10 SCC 206 titled Arulvelu and another vs. State,

(2009)16 SCC 98 Perla Somasekhara Reddy and others vs. State of A.P.

and (2010)2 SCC 445 titled Ram Singh @ Chhaju vs. State of Himachal

Pradesh.)

19. In view of above stated facts we hold that judgment

passed by learned trial Court is in accordance with law and is in

accordance with proved facts placed on record. Judgment passed

by learned trial Court is affirmed. Appeal filed by State is

dismissed. Pending miscellaneous application(s) if any also stand

disposed of.

(Sanjay Karol),

Judge

September 23

rd

, 2014 (P.S. Rana)

(ms). Judge

::: Downloaded on - 19/10/2022 20:36:48 :::CIS