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

Cr. Appeal No. 129 of 2011

Reserved on: April 01, 2015.

Decided on: April 06, 2015. Varinder Verma & another ……Appellants.

Versus

State of Himachal Pradesh …….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 appellants: Mr. Satyen Vaidya, Advocate.

For the respondent: Mr. Shrawan Dogra, AG with Mr. P.M.Negi, Dy. AG.

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Justice Rajiv Sharma, J.

This appeal is instituted against the judgment dated

28.12.2010/30.12.2010, rendered by the learned Addl. Sessions Judge,

FTC, Shimla, H.P. in Sessions Trial No. 20-S/7 of 2009, whereby the

appellants-accused (hereinafter referred to as the accused), who were

charged with and tried for offence punishable under Section 302 IPC read

with Section 34 IPC, have been conv icted and sentenced to undergo

imprisonment for life and to pay a fine of Rs. 10,000/- each.

2. The case of the prosecution, in a nut shell, is that on

6.6.2009, Om Prakash came to Theog from the house of his sister

Subhadra, situated in Chiundi, Tehsil Theog in connection with his work.

Sh. Kuldeep Verma, the younger son of Om Prakash also came to Theog

from Village Gadah on 6.6.2009 in connection with his own work. He met

his father around 12 noon at bus stand Theog. The complainant Sh.

Kuldeep Verma alias Dipia, came to Gadah Kufri around 3:00 PM earlier

to his father. At about 6:30 PM, Shimla-Bhaj bus came and stopped

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there. His father alighted from the bus. He handed over a packet

containing his belongings to the complainant and at that time, S/Sh.

Vidya Sagar, a member of Panchayat Samiti, Nihal Singh and Sita Ram

were with Sh. Om Prakash. The complainant came to his house at

Gadah. At 9:22 PM, he made a call on the mobile phone of his father to

know when he was about to come. Om Prakash told the complainant that

he would be reaching within next 15-20 minutes and also informed that

Sh. Ganga Ram was also with him. The complainant started watching

TV. However, when they did not reach even by 10:30 PM, Sh. Kuldeep

Verma, complainant again rang up his father on his cell phone, but it was

not reachable. He tried on the cell phone of Sh. Ganga Ram. It went on

ringing. The call was not replied by Sh. Ganga Ram. The complainant

started going towards Gadah Kufri and on his way, he again made a call

on the cell phone of Sh. Ganga Ram. He heard the phone ringing at a

short distance but on account of darkness and being alone, he got

frightened and returned back. He took his cousin Sh. Mukesh Verma

with him and came to that place i.e. way leading towards Gadah Kufri.

They found Sh. Om Prakash and Ganga Ram lying on the ground

together. They were lying dead and on further checking, they found

wooden pieces lying scattered on the spot. He immediately informed

Police Post Matiyana. The statement of Kuldeep Verma was recorded

under Section 154 Cr.P.C vide Ext. PA. FIR was registered at PS Theog.

Inquest report was prepared. The dead bodies were initially taken to Civil

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Hospital, Theog and later sent to IGMC, Shimla for autopsy. A team of

medical officers conducted autopsy upon the deceased and it was found

that Ganga Ram had died on account of multiple ante-mortem injuries

leading to head injury, whereas Om Prakash was found to have died

because of gross head injury and ante-mortem manual strangulation.

The accused were arrested on 7. 6.2009. They made disclosure

statements Ext. PW-6/A and Ext. PW-6/B under Section 27 of the Indian

Evidence Act. They got the dandas and clothes recovered. 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 22 witnesses. The accused were also examined under Section

313 Cr.P.C. They have denied the prosecution version. The accused have

also examined DW-1 Madan Sharma. The learned trial Court convicted

and sentenced the accused, as noticed hereinabove. Hence, this appeal.

4. Mr. Satyen Vaidya, Advocate for the accused has vehemently

argued that the prosecution has failed to prove the case against the

accused. On the other hand, Mr. P.M.Negi, learned Dy. Advocate General,

appearing on behalf of the State, has supported the judgment of the

learned trial Court dated 28.12.2010/30.12.2010.

5. We have heard learned coun sel for both the sides and gone

through the records of the case carefully.

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6. The entire case of the prosecution is based on circumstantial

evidence. There is no eye witness of the incident.

7. Sh. Kuldeep Verma PW-1 deposed that at 6:00 PM, Shimla

Bhaj bus came. His father alighted from that bus at Gadah Kufri and met

him there. S/Sh. Vidya Sagar, Nihal Singh, Ganga Ram and Sita Ram

were also seen with his father. His father handed over his belongings to

him. He left Gadah Kufri with the belongings of his father for his native

place Gadah. His father and Sh. Ganga Ram etc. remained in Gadah

Kufri only. As his father did not return home, he rang up on his mobile

phone at about 9:22 PM. His father replied that he will reach home

within 10-15 minutes and Sh. Ganga Ram was with him. He started

watching the T.V. As his father did not reach home, he again rang him

up on his mobile phone at about 10:30/10:45 PM. The phone of his

father was not reachable. Then, he made a call on the mobile phone of

Sh. Ganga Ram. The phone kept on ringing. Sh. Ganga Ram was staying

in their house for the last many years. When he failed to contact his

father and Sh. Ganga Ram on their mobile phones, he left his house on

foot for Gadah Kufri. At some distance from his house, he again made a

phone call on the mobile phone of Sh. Ganga Ram. He heard the phone

ringing. On account of the darkness and fear, he returned to his house.

Thereafter, he alongwith his cousin Mukesh Kumar left the house during

the night itself in search of his father and Ganga Ram. They spotted their

dead bodies lying on the way. He telephonically informed the police at

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11:30 PM. The police reached the spot on 7.6.2009 at about 1:30 AM.

Sh. Amit Verma was also contacted by him. Sh. Ganga Ram used to stay

in their house as he was turned out of his house by his brother Sh. Dhani

Ram. Sh. Durga Singh is the other brother of late Sh. Ganga Ram. Sh.

Ganga Ram had filed a case against Sh. Dhani Ram in the Court at Theog

for property. In the year 2008, Kanungo etc. had visited the disputed

property. In ‘Jethanjui Mela’ hot exchanges had taken place between his

father and accused Dev Raj. In his cross-examination, he admitted that

he did not remember the telephone number of Sh. Anil Verma, the father

of Amit Verma. It is stored in his mobile phone hand set. When he heard

the mobile phone of Sh. Ganga Ram ringing, he had already walked for

about 4-5 minutes after leaving his house. He returned home.

Thereafter, he alongwith Mukesh Kumar left their house. It took about 7-

8 minutes to reach the spot from their house.

8. Sh. Arun Kumar PW-2 depose d that S/Sh. Om Parkash, Sita

Ram and others got down from the bus. S/Sh. Vidya Sagar and Nihal

Singh were there in Gadah Kufri. Sh. Sita Ram left Gadah Kufri in the

bus. Sh. Om Parkash remarked that they should enjoy. Then he, Vidya

Sagar, Om Parkash, Ganga Ram and Nihal Singh started taking liquor

outside the ‘dhaba’ of Kesu in Gadah Kufri. At about 7:00 PM, Sh. Vidya

Sagar left. Around 8:30 PM, Sh. Nihal Singh also left. He alongwith Om

Parkash and Ganga Ram kept on enjoying the liquor. It was a moon lit

night. Both the accused came there. They spotted them and went away.

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9. Sh. Amit Verma, PW-3 is the material witness. He deposed

that Om Parkash deceased was his Mama . He stated that on 6.6.2009, at

about 9:15 PM, he parked his vehicle in Gadah Kufri near the dhaba of

Kesu. S/Sh. Om Parkash and Ganga Ram met him at the place where he

parked the vehicle. They were going towards village Gadah. Spotting

him, both of them stopped. He got down from the vehicle and wished

them. Sh. Om Parkash asked him to accompany them to village Gadah.

He replied that he has to go to village Chiundi. He alongwith Om Parkash

and Ganga Ram then started moving together towards village Gadah. He

saw the accused coming from Gadah Kufri side. He recognized both of

them when they came near to him. He knew the accued earlier as they

were locals. Both the accused inquired from him as to when Om Parkash

and Ganga Ram left for Gadah. He replied that they had left just now for

Gadah. Both the accused were armed with the dandas. They went

towards Gadah. Then, he left for his village Chiundi. At about 11-11:15

PM, his father received a phone call on his mobile phone from Sh.

Kuldeep Verma. As the signal quality was poor, his father handed over

the mobile to him. He talked with Sh. Kuldeep Verma. He told him that

Om Parkash and Ganga Ram have been murdered by someone on the way

to Gadah. They reached the spot on 6.6.2009 at 11:45 PM. The accused

have taken the police to the spot on 10.6.2009. The accused Varinder led

the police party to his house and got his clothes recovered. Accused Dev

Raj also got his clothes recovered. In his cross-examination, he admitted

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that on 6.6.2009, he did not carry any goods in the vehicle. He came

from Matiyana and parked the vehicle in Gadah Kufri. He did not

remember as to whether the goods were transported by him in the vehicle

on 5.6.2009 or not. He came alone in the vehicle from Matiyan to Gadah

Kufri on 6.6.2009. His statement was recorded by the police at 11:30 AM

on 7.6.2009. He further admitted that he did not tell or made any

attempt to tell Kuldeep that accused were carrying dandas and were

inquiring about the deceased. He had no talk with Kuldeep at the spot.

From the spot, he went to Karana, Badyog, Bharana villages to bring the

relatives of the deceased. He was asked by Gian Verma the brother of the

deceased to go to these villages. He did not tell Gian Verma that the

accused were carrying dandas and inquiring about the deceased. He

brought Hira Singh and his wife from village Bharana to the spot in his

vehicle. Even on return, he did not tell this fact that accused were

carrying dandas and inquiring about the deceased to any person

including Hira Singh and his wife.

10. Sh. Nasib Singh Patiyal, PW -4 has examined dandas Ext. P-

12 and P-13.

11. HHC Ranjeet Singh PW-5 de posed that on 7.6.2009 at 2:45

AM, rukka Ext. PA was handed over to him by ASI Ajay Kalia.

12. Sh. Diwan Chandel, PW-6 deposed that on 10.6.2009, he and

Ajay Verma were called by SHO Khazana Ram to Police Post Matiyana.

Both the accused were present there. Accused Varinder made a

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disclosure statement in their presence to the effect that on 6.6.2009, the

danda used by him in the commission of the offence has been kept

concealed in a pool at Gadah Kufri. Accused Varinder also told the police

that the clothes which he was wearing on 6.6.2009 have been kept by him

in his house. Disclosure statement Ext. PW-6/A was recorded by the

police in his presence. Similarly, accused Dev Raj made a disclosure

statement in their presence to the effect that on 6.6.2009, the clothes

which he was wearing have been kept concealed in a pool at Gadah Kufri.

The disclosure statement is Ext. PW-6/B.

13. Sh. Budhi Ram, PW-8 deposed that at about 1-1:30 PM, the

police vehicle came. SHO asked him and Kishan Verma to join the

investigation. Accused Varinder got down from the vehicle. He led the

police party to a place near the pond. The pond had some water.

Accused Varinder Verma entered the water and took out a danda. The

same is Ext. P-13. The danda was me asured by the police. It was 27

inch long and 6 inch in diameter. It was taken into possession vide memo

Ext. PW-8/A. Spot map was also prepared. Thereafter, accused Dev Raj

got down from the vehicle. He led the police party to the same pond.

Accused Dev Raj then entered the water and brought out a danda. It was

measured. The same was 35 inch long and 8 ½ inch in diameter. The

danda is Ext. P-12. It was recovered vide seizure memo Ext. PW-8/B.

14. Statements of PW-9 to PW-14 are formal in nature.

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15. HC Het Ram, PW-15 has sent th e case property to FSL, Junga

on 16.6.2009.

16. Dr. Piyush Kapila, PW-17 has conducted the post mortem of

both the dead bodies on 7.6.2009 alongwith Dr. H.S. Sekhon. According

to them, Ganga Ram died as a result of multiple ante mortem injuries

leading to head injury. The probable time elapsed between injury and

death was immediate and that between death and post mortem

examination was between 18-24 hours. The cause of death of Om

Parkash was head injury and ante mortem manual strangulation. He also

proved report Ext. PW-17/G with regard to weapon of offence.

17. Dr. Shalini Bhardwaj, PW- 18 has medically examined the

accused and has issued MLCs Ext. PW-18/B and Ext. PW-18/C.

18. Dr. Kuldeep Kanwar, PW-19 has issued preliminary post

mortem reports Ext. PW-19/B and PW-19/C. According to him, the

duration between injury and death in both the cases was in between 30-

120 minutes. The duration between the deaths and post mortem was 12

to 36 hours. He admitted in his cross-examination that he has conducted

hundreds of post mortems.

19. ASI Liaq Ram, PW-20 has registered the FIR Ext. PW-20/A.

20. ASI Ajay Kalia, PW-21 testif ied that on 6.6.2009, Sh. Kuldeep

Verma gave an information on his mobile phone to the effect that the dead

bodies of his father and Sh. Ganga Ram were lying in the ‘rasta’ between

Gadah and Gadah Kufri. He alongwith Ranjeet Singh proceeded to the

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spot. On7.6.2009, at about 1:30 AM. The dead bodies of Ganga Ram and

Om Parkash were lying on the spot. He checked the dead bodies. He

noticed injuries on the face and head of the deceased. The blood had

come out. Sh. Kuldeep Verma and other villagers were there at the spot.

He recorded the statement of PW-1 Kuldeep Verma under Section 154

Cr.P.C. vide Ext. PA.

21. Insp. Khazana Ram, reached the spot on 7.6.2009 at about

2:45 AM. The blood stained soil was lifted from the spot by FSL team.

The same was handed over to him. It was taken into possession vide

memo Ext. PW-21/B. He recorded the statements of S/Sh. Kuldeep

Verma, Laiq Ram, Kishan Verma and Amit Verma. He prepared the

inquest reports Ext. PW-17/B and PW-17/C. He sent the dead bodies for

post mortem examination to Civil Hospital, Theog. The accused were also

got medically examined. The recoveries were made by the accused on the

basis of the disclosure statements. In his cross-examination, he admitted

that he did not record the statement of Sh. Keshu.

22. The trial Court has taken the following circumstances into

consideration while convicting the accused:

“a) On 6.6.2009 in between 8:30-9 PM when the deceased

and Arun Verma PW-2, were taking liquor outside the Dhaba

of Keshu at Gadah Kufri, the accused were found roaming

about that place. Further, when Arun Verma went to Badyog,

he did not meet any person in between Gadah Kufri and

Gadah.

b) In between 9:15-9:30 PM, the accused were seen by Sh.

Amit Verma, PW-3, armed with Dandas at Gadah Kufri, they

inquire about the deceased from Amit Verma and then

followed them towards Gadah.

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c) The deceased were murdered, in between 9:30-10:30

PM.

d) The accused made disclosure statements under Section

27 of the Evidence Act, on 10.6.2009, in PP Matiyana, before

Inspector Khajana Ram and then led to the recoveries of

Dandas, Ext. P-12 and Ext. P-13, used in assaulting the

deceased, as well as the blood stained clothes. The clothes

were smeared with blood and the blood group tallied with the

blood groups of the deceased.

e) The pieces of wood, Ext. P-4, collected from the spot by

the experts FSL, Junga were found as the fragmented parts of

Dandas, Ext. P-12 and Ext. P-13.

f) There was strong motive for the accused to commit

crime.”

23. Sh. Kuldeep Verma, PW-1 has st ated that he met his father at

Gadah Kufri. He came back to his house. He contacted his father at

about 9:22 PM. His father told him that he will reach home within 10-15

minutes alongwith Sh. Ganga Ram. He started watching the TV. As his

father did not reach home, he again rang him up on his mobile phone at

about 10:30/10:45 PM. The phone of his father was not reachable so he

gave a call on the mobile phone of Sh. Ganga Ram. The phone kept on

ringing. Sh. Ganga Ram was staying in their house for the last many

years. When he failed to contact his father and Sh. Ganga Ram on their

mobile phones, he left his house on foot for Gadah Kufri. At some

distance from his house, he again made a phone call on the mobile phone

of Sh. Ganga Ram. He heard the phone ringing. Because of the darkness

and fear, he returned to his house. Thereafter, he alongwith his cousin

Mukesh Kumar left the house during the night itself in search of his

father and Ganga Ram. They spotted their dead bodies lying on the way.

The prosecution has not examined Mukesh Kumar. He was a material

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witness. It is not believable that a son who was desperately looking for

his father would come back and that too after hearing the mobile ring.

His first reaction would have been to reach the spot and try to see

whether everything was in order or not. In his cross-examination, Sh.

Kuldeep Kumar, PW-1 has admitted that he did not remember the phone

number of Ganga Ram. When he heard the mobile phone of Sh. Ganga

Ram ringing, he had already walked for about 4-5 minutes after leaving

his house. Then, he returned home. Thus, the incident has taken place

near his house. He should have gone to the spot instead of coming back.

He has also admitted that Dhani Ram and family members were inimical

towards them as his father used to help Ganga Ram and in the Mela hot

exchanges had taken place between his father and accused Dev Raj.

24. According to Sh. Kuldeep Ve rma, PW-1 he contacted Amit

Verma on his telephone. PW-3 Amit Verma deposed that his father

received telephone at 11-11:15 PM from Kuldeep Verma since the quality

of signal was poor, his father handed over the cell phone to him. He had

talked with Kuldeep Verma. He told that Om Parkash and Ganga Ram

were murdered. In his cross-examination, PW-1 has admitted that he had

called on the mobile of Anil Verma, the father of Sh. Amit Verma.

25. Sh. Arun Kumar, PW-2 deposed that Sita Ram and others got

down from the bus. S/Sh. Vidya Sagar and Nihal Singh were there in

Gadah Kufri. Sh. Sita Ram left Gadah Kufri in the bus. Sh. Om Parkash

remarked that they should enjoy. Then he, Vidya Sagar, Om Parkash,

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Ganga Ram and Nihal Singh started taking liquor outside the ‘dhaba’ of

Kesu in Gadah Kufri. At about 7:00 PM, Sh. Vidya Sagar left. Around

8:30 PM, Sh. Nihal Singh also left. He alongwith Om Parkash and Ganga

Ram kept on enjoying the liquor. It was a moon lit night. Both the

accused present in the Court came there. They spotted them and went

away. In his cross-examination, he admitted that they had consumed two

bottles of country liquor. Thus, the incident has taken place, as per the

prosecution case, outside the shop of Kesu. Sh. Kesu has not been cited

as a witness by the police. A suggestion was put to SI Khazana Ram PW-

22 as to why he has not associated Kesu in the investigation. His only

explanation was that Kesu has already closed the shop and left the place.

26. According to the prosecution case, Sh. Amit Verma, PW-3 has

seen the accused near the spot carrying dandas on 6.6.2009 after 9:00

PM. He has seen the accused coming from Gadah Kufri side. His version

is that accused inquired from him as to when Ganga Ram and Om

Parkash had left for Gadah. He told that they had just left and they left

for village Gadah and he left for village Chiundi. However, in his cross-

examination, he could not state whether the goods were transported by

him in the vehicle on 5.6.2009 or not. He also admitted that on 6.6.2009

he did not carry any goods in the vehicle. He has reached the spot with

his father on 6.6.2009 at 11:45 PM. He also went to bring the relations

on the spot. He has categorically stated that he has seen the accused

carrying the dandas in their hands. When he met them, they inquired

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about the deceased persons. However, surprisingly, he reached on the

spot at 11:45 PM but did not disclose this fact to PW-1 Kuldeep Verma, as

per his cross-examination. He was asked by Gian Verma, the brother of

the deceased to go to villages Karana, Badyog, Bharana to bring the

relatives of the deceased. He did not tell Gian Verma that the accused

were carrying dandas and inquiring about the deceased. He brought Hira

Singh and his wife from village Bharana to the spot in his vehicle. Even

on return, he did not tell this fact that accused were carrying dandas and

inquiring about the deceased to any person including Hira Singh and his

wife. The conduct of PW-3 Amit Verma is very strange. He should have

told PW-1 Kuldeep Verma or Gian Verma or Hira Singh and his wife that

the accused were inquiring about the deceased and carrying dandas near

the spot. Sh. Amit Verma, PW-3 is a chance witness. His version cannot

be believed. Moreover, his statement was recorded belatedly by the police.

The statements of the witnesses in cases like the one in hand should be

recorded immediately.

27. The weapon of offence, as per the prosecution case, are two

dandas Ext. P-12 and P-13. These were examined by Nasib Singh Patiyal

PW-4. These dandas were recovered on the basis of the disclosure

statements made vide Ext. PW-6/A and PW-6/B. The accused have got

these dandas recovered from the Pond near Gadah Kufri. The dandas

were brought by the accused from the mud of the pond. In case the

accused have thrown the dandas, those should have been floating in the

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water. Budhi Ram, PW-8 has admitted in his cross-examination that the

pond was 800-900 meters away from Gadah Kufri. The dandas were not

floating in the water of the pond. Thus, the recovery of dandas is

suspicious.

28. The cause of death of deceased Ganga Ram was due to ante

mortem injuries received on head as per the opinion of PW-17 Dr. Piyush

Kapila. The cause of death of deceased Om Parkash was due to gross

head injury and ante mortem ma nual strangulation. However,

surprisingly, Dr. Kuldeep Kanwar, PW-19 has also issued preliminary

post mortem reports Ext. PW-19/B and PW-19/C. According to him, the

cause of death was due to injuries of face and head leading to shock and

death in the case of Ganga Ram and in the case of Om Parkash the

deceased died of ante mortem facial injuries leading to shock and death.

PW-19 Dr. Kuldeep Kanwar has proclaimed in his cross-examination that

he conducted hundreds of post mortems. He was supposed to examine

the dead body of Om Parkash closely. The cause of death of Om Parkash

as per the statement of Dr. Piyush Kapila, PW-17 was manual

strangulation. Dr. Kuldeep Kanwar, PW-19 could not miss such an

important aspect of the matter as to how deceased Om Parkash has died.

29. The blood and urine samples of deceased were sent to FSL,

Junga. The report of FSL, Junga is Ext. PW-22/L. The quantity of ethyl

alcohol in the blood of Ganga Ram (deceased) was found to be 283.66

mg% and in urine it was found to be 285.50 mg%. The quantity of ethyl

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alcohol in the blood of Om Parkash (deceased) was found to be 264.22

mg% and in urine it was found to be 272.55 mg%. It, thus, proves that

both of them were heavily drunk. It has come in the statement of PW-2

Sh. Arun Kumar that they had consumed two bottles of liquor and liquor

was also brought by Om Parkash from Matiyana. PW-17 Dr. Piyush

Kapila has also admitted in his cross-examination that if a person’s blood

alcohol concentration is more than 260 mg %, then he could be treated

under the influence of liquor. Thus, the possibility of the deceased

receiving injuries by fall cannot be ruled out being heavily drunk.

30. In the case based entirely on circumstantial evidence, motive

also plays an important role. According to Mr. P.M.Negi, learned Dy.

Advocate General, the motive was the dispute between the families. It is

settled law that motive is a double edged weapon. Since there was land

dispute between the two families, as per the prosecution case, the

possibility of the accused being falsely implicated can also not be ruled

out. Sh. Kuldeep Verma, PW-1 has also deposed that there was land

dispute and Sh. Ganga Ram (deceased) had filed case against Sh. Dhani

Ram, father of the accused Varinder Verma. Sh. Dhani Ram has also

filed suit against Sh. Ganga Ram. Om Parkash used to assist Ganga Ram

in the Court. PW-3 Amit Verma, is closely related to Om Parkash

(deceased). Sh. Kuldeep Verma, PW-1 has also deposed that Sh. Ganga

Ram had filed a case against Sh. Dhani Ram in the Court at Theog for the

property. Sh. Ganga Ram used to stay in their house as he was turned

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out of his house by his brother Sh. Dhani Ram. Sh. Durga Singh is the

other brother of late Sh. Ganga Ram. Sh. Arun Kumar, PW-2 has also

admitted in his cross-examination that Sh. Om Parkash helped Sh. Ganga

Ram in the litigation. It is also borne from the statement of PW-8 Sh.

Budhi Ram that case was got registered by Dhani Ram, father of Virender

Verma against his son and the same was withdrawn. Sh. Budhi Ram,

PW-8, is one of the witness before whom the dandas were got recovered by

the accused from the pond. Sh. Budhi Ram, PW-8 in his cross-

examination has admitted that the land dispute was going on between

Ganga Ram and family members of accused Varinder Verma. He has also

admitted in his cross-examination that Sh. Dhani Ram, father of the

accused Varinder had filed a case against his son Rajesh alias Raju and

his nephew Kishori Lal. He also admitted that there was water dispute

going on in the village. He and Dhani Ram are from opposite factions.

Thus, Amit Verma PW-3 is closely related to deceased Om Parkash. Sh.

Budhi Ram, PW-8 has inimical rela tions with the father of accused

Varinder Verma. Though, it is true that the statements of closely related

witnesses can be taken into consideration but it has to be done with care

and caution. Sh. Budhi Ram, PW-8 has also admitted that proceedings

under Sections 107/150 Cr.P.C. were pending decision between him and

Sh. Dhani Ram, father of accused Varinder Singh.

31. The statements of Sh. Amit Verma, PW-3 and Sh. Budhi Ram,

PW-8 do not inspire any confidence. Sh. Amit Verma, PW-3 has stated to

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High Court of H.P. 18

have seen the accused carrying dandas and inquiring about the deceased

and PW-8 Budhi Ram was witness to recoveries of dandas from the pond

by the accused. The statement of material witnesses Sh. Mukesh Kumar

and Keshu Ram have not been recorded by the prosecution.

32. According to the prosecution case, the accused have got

dandas recovered from the pond in the presence of PW-8 Budhi Ram and

Krishan Verma vide seizure memos PW-8/A and PW-8/B. One of the

witnesses PW-8 Budhi Ram, as we have already noticed, had inimical

relations with the father of the accused Varinder Kumar. Krishan Verma

is the brother of deceased Om Pa rkash. The police should have

associated independent witnesses instead of associating the real brother

of deceased Sh. Krishan Verma and PW-8 Budhi Ram who had strained

relations with the father of one of the accused Sh. Varinder Verma.

33. According to PW-2 Arun Kumar, Sh. Om Parkash, Sita Ram

and others got down from the bus. S/Sh. Vidya Sagar and Nihal Singh

were there in Gadah Kufri. Sh. Sita Ram, Vidya Sagar and Nihal Singh

have not been cited as witnesses by the prosecution.

34. The matter is required to be considered from another angle.

The deceased have taken liquor at Gadah Kufri outside the dhaba of

Kesu. They were heavily drunk. They were also in the company of PW-2

Arun Kumar. Vidya Sagar and Nihal Singh left. They have taken liquor

together. The possibility of the brawl taking place between these parsons

can also not be ruled out after consuming liquor. The prosecution has

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failed to complete the chain. The prosecution has also failed to prove the

case against the accused beyond the reasonable doubt.

35. Their lordships of the Hon’ble Supreme Court in the case of

Balbir Vrs. Vazir and others and connected matters, reported in

(2014) 12 SCC 670, have held that motive is a double edged weapon and

just as there is a possibility of murders having been committed because of

motive due to enmity, there is also a possibility of false implication of

innocent people to settle past scores. It has been held as follows:

“12. We are dealing with an appeal against acquittal. The

acquittal is not recorded by the trial court but by the High

Court. We shall therefore see whether there were sufficient

reasons for the High Court to set aside the conviction. We

must however bear in mind that if the view taken by the High

Court is a reasonably possible view it should not be disturbed

because the acquittal of the accused by the High Court has

strengthened the presumption of their innocence. We must

also mention that according to the prosecution this is a case

of strong motive. Land disputes between the two sides and

earlier attacks made on deceased Krishna Gir have been

deposed to by the witnesses. The High Court has observed

that no documentary evidence is produced by the prosecution

in support of this case. However, we cannot dismiss the

prosecution case of enmity between the two sides lightly

because reference to it is made by several witnesses. But that

by itself does not help the prosecution. Just as there is a

possibility of murders having been committed because of

motive due to enmity, there is also a possibility of false

implication of innocent people to settle past scores. That is

why it is said that motive is a double edged weapon. We shall

keep this in mind and approach the case.”

36. 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

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High Court of H.P. 20

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

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

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

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

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High Court of H.P. 21

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.”

37. Mr. P.M.Negi, learned Dy. Advocate General, has also drawn

the attention of the Court to Ext. PX to prove that human blood was

found on exhibits sent for chemical examination including wooden pieces

and clothes of the deceased as well as the accused and hair. However,

the fact of the matter is that the prosecution has not proved that the

blood samples of the accused were also taken during the course of

investigation. Their lordships of the Hon’ble Suprme Court in the case of

Parkash vrs. State of Karnataka, reported in (2014) 12 SCC 133,

have held that when the blood stained clothes are recovered, a serological

comparison of blood of deceased and appellant and blood stains on his

clothes was 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

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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

table. We are not sure whether the actual statement made by

Shivanna has been lost in translation.

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

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

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.”

38. Accordingly, the appeal is al lowed. Judgment of conviction

and sentence dated 28.12.2010/30. 12.2010, rendered by the learned

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High Court of H.P. 23

Addl. Sessions Judge, FTC Shimla, H.P., in Sessions trial No. 20-S/7 of

2009 under Section 302/34 IPC is set aside. The accused are acquitted of

the charge framed under Section 302/34 IPC, by giving them benefit of

doubt. Fine amount, if any, already deposited by the accused is ordered

to be refunded to them. Since the accused are in jail, they be released

forthwith, if not required in any other case.

39. The Registry is directed to prepare the release warrants of the

accused and send the same to the Superintendent of Jail concerned, in

conformity with this judgment forthwith.

( Rajiv Sharma ),

Judge.

April 06, 2015, ( Sureshwar Thakur ),

(karan) Judge.

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