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CASE NO.: Appeal (crl.)  875-878 of 2000

PETITIONER: State of Himachal Pradesh

RESPONDENT: Uttam Kumar & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

Markandey Katju, J.

1.      These appeals have been filed by the State of Himachal  Pradesh against the judgment of the Himachal High Court  dated 11.5.2000 in Criminal Appeal Nos.199 of 1998, 25 of  1998, 50 of 1998 and 127 of 1998 by which the conviction of  the accused by the trial court was set aside.

2.      Heard learned counsel of the parties and perused the  record. 3.      The prosecution case is that Ramesh Kumar (deceased)  resident of village Hat, Tehsil Theog, district Shimla, H.P, was  owner of Car No.HP-09-1617.  His brother Vasu Dev (PW-2)  also owned a taxi (Maruti Van) No.HP-09-1214.  Both of them  were present at Chhaila on 1.4.1997.  At about 4 p.m.  accused Uttam Kumar approached Vasu Dev to hire his taxi  for going to Kalka saying that his brother had met with an  accident near Surajpur and was in a serious condition.  Vasu  Dev, however, expressed his inability to take his taxi to Kalka  because his taxi was out of order.  Accused Uttam Kumar  implored him that keeping in view the situation in which the  accused was, some arrangement might be made for taking  him to Kalka.  Since Ramesh Kumar was going to Solan for  servicing of his car, Vasu Dev asked him to carry the accused  upto Kalka.  Uttam Kumar informed them that he wanted to  carry two more persons in the vehicle from Mori Kyar road  and two more from Fagu.  Thereupon, Ramesh Kumar,  deceased, along with accused Uttam Kumar took his car to  Mori Kyar and from there, they started towards Kalka.  On the  way, Ramesh Kumar stopped near his house in village Hat  and informed his mother that he would be back late in the  night or the next morning.  Ramesh Kumar, however, did not  return home even on the next day, and hence his father  Sitaram asked PW-2 Vasu Dev to search for Ramesh Kumar.   PW-2 telephonically contacted his relatives at Shimla and  other places to find out the whereabouts of Ramesh Kumar  and also went towards Kalka in his taxi.  On his way to Kalka,  Vasu Dev on 5.4.1997, made enquiries at Police Station,  Dharampur where he was informed that Spatu Police had  taken in its possession a car under Section 102 Cr.P.C. as the  same was found lying abandoned.  Vasu Dev then went to  Spatu and recognized the car owned by his brother Ramesh  Kumar with the help of a sticker as its number place was  found missing.  In the meanwhile, on the same day, Sita Ram  (PW-1), father of Ramesh Kumar and Vasu Dev, lodged a

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report about the missing of Ramesh Kumar since 1.4.1997 at  Police Station, Theog.  In the evening on the same day, when  Vasu Dev returned home, he informed his father about taking  in possession of the abandoned car of Ramesh Kumar by  Spatu Police.  This made Sita Ram apprehensive of the safety  of his son Ramesh Kumar.  On 6.4.1997, when a head  constable had gone to the village of the deceased to make  enquiries about the report lodged by his father, PW-1 Sita  Ram informed him that car of the deceased had been found at  Spatu.  Thereupon, the said head constable, namely, Ram  Singh (PW-15) recorded the statement of Sita Ram under  Section 154 Cr.P.C. Ex.PB and as a consequence, FIR No.50  of 1997 under Sections 364/34 IPC was registered at Police  Station, Theog.  For almost a week, neither the police nor the  relatives of Ramesh could secure any information about the  whereabouts of Ramesh Kumar.  On 12.4.1997, PW-2 Vasu  Dev went to the temple of the local Diety in village Guthan to  get the blessings of the Diety in helping tracing out his  brother.  When he came out of the temple, a resident of the  village informed him that a young man  and a young woman  had been staying in the house of Mast Ram in village Guthan  for 20 to 25 days prior to 1.4.1997.  Thereafter, Vasu Dev  contacted Mast Ram who confirmed the said information  given by the villager and it was also found that son of Mast  Ram, namely, accused Suresh Kumar had also left the village  with the said young man and woman on 1.4.1997 but had not  returned to the village.  The villagers and Mast Ram further  informed Vasu Dev that the said young man and woman had  come to the village in Taxi No.HPY-1992 which remained  parked outside the house of Mast Ram even after they had  left, but for the last two or three days, the taxi was not there.   On the request of Vasu Dev, Mast Ram agreed to send his  own son Mohinder Singh to Vasu Dev the next day so that  both of them could search for Ramesh Kumar and Suresh  Kumar.

4.      On the next day i.e. 13.4.1997, Mohinder Singh came to  Chhaila and met Vasu Dev who was at that time accompanied  by Inder Singh.  He informed Vasu Dev that the young man  and young girl who had been staying in his house in village  Guthan had given their address to him and that they were  residents of Jutogh cantonment.  Thereafter, Vasu Dev, Inder  Singh and Mohinder Singh came to Jutogh where Mohinder  Singh went to the house whose address was available with  him while Vasu Dev and Inder Singh remained at some  distance.  On the call of Mohinder Singh, accused Uttam  Kumar came out of the house and was identified by Vasu Dev  and Inder Singh as the person who had left Chhaila on  1.4.1997 in the car of Ramesh Kumar.  Thereafter, Mohinder  Singh, Inder Singh Vasu Dev went to the Police Station.  Theog and narrated the aforesaid facts to the Officer-In- Charge of the said Police Station.  On receipt of this  information, the Officer-In-Charge, Police Station, Theog  along with a few other police officials, Vasu Dev, Inder Singh,  Mohinder Singh and a few other persons of the locality came  to Jutogh where the house of accused Uttam Kumar was  surrounded.  At about 6 a.m. accused Uttam Kumar came out  of his house and was identified by Vasu Dev and Indder Singh  as the person who had accompanied the deceased in his car  on 1.4.1997 from Chhaila.  Thereupon, accused Uttam Kumar  was taken into custody by the police and was taken to Police  Station, Theog.  During the course of interrogation, accused  Uttam Kumar allegedly made a disclosure statement that he  and accused Suresh Kumar and Paveen Sabarwal had  hidden the dead body of Ramesh Kumar under a culvert near

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Ghana Hatti and he could get the same recovered.  Pursuant  to the said statement, accused Uttam Kumar got recovered a  badly defaced dead body in the presence of Inder Singh and  Shiv Dutt who identified the dead body so recovered to be  that of eceased Ramesh Kumar.  A rope was tied around its  neck.  The doctor who conducted the post mortem of the dead  body noticed two ligature marks on the neck and opined that  the cause of death of the deceased was asphyxia resulting  from ante mortem strangulation by ligature.  Some other  external and internal injuries i.e. fracture, contusions and  abrasions were also notice on the dead body.  On the evening  of 14.4.1997 accused Suresh Kumar and Parveen Sabarwal  were also arrested by the police.   On 16.4.1997 while in  police custody, accused Suresh Kumar allegedly made a  disclosure statement in the presence of PWs Om Prakash  and Sita Ram that he could point out the spots by visiting the  same where he along with Uttam Kumar and Parveen  Sabarwal had murdered the driver of Maruti Car No.HP-09- 1617, removed the number plate of the car, took off the  wearing apparels etc. from the body of Ramesh Kumar and  where the dead body was thrown and concealed.  He further  disclosed that he had hidden the stone and sythe used for  preparation of ‘kiltas’ wherewith the face of the deceased was  defaced by him and could get the same recovered.  He further  disclosed that he and accused Uttam Kumar knew the spots  where the wearing apparels of the deceased, number plates  of his vehicle and documents etc. had been burnt.  Pursuant  to this statement, a stone and a drati were recovered and  taken in possession by the police at the instance of accused  Suresh Kumar.  Accused Suresh Kumar and Uttam Kumar  also led the police party to a spot in a forest near Hira Nagar  and pointed out a place where some ash, partly burnt pieces  of wood and plastic articles were lying.  Those were also  taken in possession by the police.

5.      On the same day i.e. 16.4.1997 it is alleged that   accused Parveen Sabarwal also made a disclosure statement  stating that she had kept hidden the wrist watch of the  deceased in the house of the brother of her husband in  Jutogh along with the clothes of the accused persons which  they were wearing at the time of the commission of the  offence and which she could get recovered.  Pursuant to the  said statement, accused Parveen Sabarwal got recovered the  wrist watch of the deceased and also some clothes from the  residential house of accused Rajesh Kumar at Jutogh Cantt  which were also taken in possession by the police.

6.      On 18.4.1997, Rajesh Kumar aforesaid who is brother of  accused Uttam Kumar was also arrested by the police along  with his Maruti Van No.HP-02-1111.  A few tools were  recovered from his said van which were identified as  belonging to the deceased.  On the same day, accused  Rajesh Kumar made a disclosure statement that he had kept  hidden four rims with tyres and some tools under a culvert  near village Dhanda and some parts of a Maruti Car had been  kept by him under a culvert near Kachi Ghati which he could  get recovered.  Pursuant to the said statement, accused  Rajesh Kumar got four rims and tyres and some parts of  Maruti Car recovered which rims and parts were identified by  Vasu Dev as those of the car of his deceased brother  Ramesh Kumar.  On 20.4.1997, accused Uttam Kumar  allegedly made yet another disclosure statement to the effect  that he had kept hidden the number plate of Car No.HP-09- 1617 in the house of his brother Rajesh Kumar.  Pursuant to  such statement, he led the police party to the house of his

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brother Rajesh Kumar and got the number plate recovered  which was taken in possession by the police.

7.      On conclusion of the investigation, the Officer-In-Charge  of the concerned police station submitted a charge-sheet  against the accused persons under Sections 302, 201, 212,  404, 414 and 120-B IPC.

8.      The learned Sessions Judge framed a charge under  Sections 120-B read with Sections 302 and 382 IPC, 302 IPC,  382 IPC, 404 IPC and Section 201 IPC read with Sections  302, 382, 404 and 120-B IPC against accused Uttam Kumar,  Suresh Kumar and Parveen Sabarwal and a charge under  Sections 120-B read with Sections 382 and 302 IPC, 404 IPC  and Section 201 IPC read with Sections 302 and 382 IPC and  120-B IPC was framed against accused Rajesh Kumar.   Accused pleaded not guilty to the said charges.

9.      To prove the charges against the accused, the  prosecution examined as many as 19 witnesses.

10.     Statements of the accused under Section 313 Cr.P.C.  were recorded wherein accused persons denied the  prosecution case.  Accused Rajesh Kumar further claimed  that, at the relevant time, many dead bodies were found in  Ghana Hatti area and the police could not apprehend the real  culprits and falsely implicated the accused persons.  Accused  Uttam Kumar and Parveen Sabarwal further claimed that they  were pressurized/tortured to make the disclosure statements.   Accused Suresh Kumar claimed that he had gone to the  house of his maternal uncle in village Himri where he was  informed that his brother  was arrested.  Then he went to  Police Station, Theog to find out as to why his brother was  arrested and when he reached there, the police arrested him  too.  The accused, however, did not lead any evidence in their  defence.

11.     The learned Sessions Judge found the accused guilty of  the commission of the offences for which they were convicted  and sentenced as aforesaid.

12.     Against the judgment of the trial court four appeals were  filed in the High Court which have been allowed by the  impugned judgment dated 11.5.2000 and all the accused  were acquitted.  These appeals have been filed against the  said judgment of the High Court.

13.     We have carefully gone through the judgment of the High  Court and we are of the opinion that it cannot be sustained.   No doubt, there is no direct evidence in the case and the  prosecution case is based on circumstantial evidence.   However, a perusal of the judgment of the High Court shows  that High Court has not properly considered the evidence on  record and based its findings an ipse dixit.

14.     For example, in para 49 of the impugned judgment it is  mentioned that the identity of the accused Uttam Kumar as  one of the persons who allegedly travelled with the deceased,  is not established.  However, in this connection, it seems to us  that the identity of Uttam Kumar appears to be established by  witness Vasu Dev-PW-2, who has stated in his statement that  it was Uttam Kumar who had approached him to hire a taxi to  go to Kalka.  We see no good reason to disbelieve the  evidence of Vasu Dev in this connection because there does  not appear to be any enmity between Vasu Dev and Uttam

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Kumar.  Similarly, PW-7 Inder Singh Chauhan has also  identified Uttam Kumar as the person who went with the  deceased Ramesh Kumar in the latter’s car.  PW-9 Inder  Singh son of Mathu Ram has also deposed to the same effect  and has identified Uttam Kumar as the person who went with  Ramesh Kumar in the latter’s car.

15.     All the above statements of the witnesses clearly identify  who have identified Uttam Kumar who travelled with the  deceased Ramesh Kumar.  It seems to us that the High Court  has disregarded the said evidence on flimsy grounds.  In our  opinion it appears is clearly established that Uttam Kumar  was the person who travelled with the deceased Ramesh  Kumar in his car on 1.4.1997.

16.     The prosecution case is of last seen evidence and is also  based on recoveries at the instance of the accused.

17.     Vasu Dev has clearly stated that it was Uttam Kumar  who travelled with the deceased Ramesh Kumar in the latter’s  car on 1.4.1997.  It has also come in the evidence of other  witnesses that the deceased was also seen subsequently in  the company of the other accused also.  For instance, PW-3  Nek Ram has stated in his evidence on 1.4.1997 that the  deceased Ramesh Kumar was driving his car at Theog in the  evening and at that time accused Uttam Kumar, Suresh  Kumar and Parveen Sabarwal were in his car.  Ramesh  Kumar had a talk with the said Nek Ram for about five to  seven minutes.

18.     It is also the prosecution case that Uttam Kumar while in  police custody made disclosure statements leading to the  recovery of the dead body of Ramesh Kumar under a culvert,  and other disclosures were also said to have been made by  the other accused.  

19.     We are not commenting in detail about the veracity or  otherwise of the witnesses since we are remanding the case  back to the High Court for reconsideration.  Suffice it to say  that the impugned judgment does not show a proper  consideration of the evidence and seems to be based on  conjectures and surmises, and hence it is not sustainable.  In  these circumstances we set aside the impugned judgment of  the High Court and remand the case to the High Court for a  fresh consideration of the evidence and a fresh decision in  accordance with law.  We make it clear that we have not  expressed any final opinion on any factual issue, and it will be  open to the High Court to give its fresh judgment uninfluenced  by any observations made herein.

20.     Since the incident is around 10 years old, the High Court  may consider the feasibility of hearing the case expeditiously.   The appeals are allowed.  Impugned judgment is set aside.   The matter is remanded to the High Court for a fresh decision.