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2019 Supreme(HP) 1062
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA, JJ.
Prem Bahadur - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal No. 631 of 2017, 414 of 2017
Decided On : 11-07-2019
Advocate Appeared:
Balwant Singh Thakur, Adv., Narinder Guleria, Adv.
The evidence for convicting a person under Section 302 of the Indian Penal Code has to be beyond reasonable doubt, and the circumstances must be conclusive in nature, excluding every possible hypothesis except the guilt of the accused.
Headnote:
Last Seen Theory - Murder - Indian Penal Code - Section 302, Section 34
Fact of the Case:
The appellants were convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for the murder of deceased Paras Ram. The prosecution's case was based on the last seen theory, circumstantial evidence, and disclosure statements.
Finding of the Court:
The court found that the evidence has not been correctly appreciated, and there was no definite evidence to convict the accused persons. The last seen theory was not applicable due to contradictions in witness statements. The non-examination of a material witness adversely affected the prosecution's case. The disclosure statements were not proved in accordance with the law. The circumstantial evidence was not sufficient to link the accused with the alleged offence. The court concluded that the prosecution failed to establish its case against the accused persons and acquitted them of the offence punishable under Section 302 IPC.
Issues: The issues revolved around the applicability of the last seen theory, the withholding of a material witness, the validity of the disclosure statements, and the sufficiency of the circumstantial evidence.
Ratio Decidendi: The court emphasized that the circumstances from which the guilt of the accused is to be established must be proved beyond reasonable doubt. The chain of circumstances should be complete and incapable of explanation by any other hypothesis than that of the guilt of the accused. The court also highlighted the importance of motive and the nature of the weapon used in determining the nature of the offence.
Final Decision: The appeals filed by the appellants-convicts were allowed, and they were acquitted of the offence punishable under Section 302 IPC. The appellants-convicts were ordered to be released forthwith, subject to their furnishing personal bond.
JUDGMENT :
JYOTSNA REWAL DUA, J.
1. Appellants-Accused Prem Bahadur and Dalip Punmagar (hereinafter referred to as "accused persons"), have preferred this appeal against the judgment dated 21.01.2017, passed by learned Additional Sessions Judge (CBI), Shimla, Camp at Theog, in Sessions Trial No.22-T/7 of 2013, titled State of Himachal Pradesh versus Prem Bahadur and Another, whereby both the accused persons were convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, alongwith fine of Rs.50,000/- each. In default of payment of fine, both the accused persons are to further undergo simple imprisonment for one year, in addition to the life imprisonment.
2. Prosecution Case:
The prosecution case, in a nut shell, is as under:-
2(i) On 27.02.2013, one Shri Paras Ram, alongwith Harka Bahadur (both Nepalies), purchased a few daily needs articles from the shop of one Kundan Singh (PW-5), at Village Prem Nagar, Tehsil and Police Station, Kotkhai, District Shimla, at about 05.00 p.m. After purchasing the articles, both of them went towards Chander Nagar. The appellants/accused persons Prem Bahadur and Dalip Punmagar and one Kesar Bahadur (Khisar), came to the shop of Kundan Singh (PW-5). They also purchased a few daily needs articles and went towards Chander Nagar.
2(ii). On 28.02.2013, at around 08.45 a.m., dead body of deceased Paras Ram was recovered lying on the road leading to Village Bhojnagar, near Chander Nagar.
2(iii). On the statement of the complainant Shri Jawahar Lal (PW-1), recorded under Section 154 Cr.P.C. (under whom deceased Paras Ram used to work), FIR No.10/2013, dated 28.02.2013, under Sections 302 and 323 IPC read with Section 34 IPC, was registered at Police Station, Kotkhai, District Shimla, H.P. Shri Harka Bahadur, the companion of deceased Paras Ram, was also involved during investigation. His statement recorded on 04.03.2013 under Section 161 Cr.P.C., is to the effect that all five Nepalies ( Prem Bahadur, Dalip Punmagar (both the accused persons), he himself (Harka Bahadur), Kesar Bahadur (Khisar) and deceased Paras Ram) in the late hours of 27.02.2013, were consuming liquor near Bhojnagar when a fight ensued amongst them all. They all fought with kicks and fist blows. Accused were beating him and deceased Paras Ram. Shri Khisar immediately went away. He (Sh. Harka Bahadur) fell down and because of alleged severe injuries, caused by accused persons, could regain senses only after around two hours. He reached out for Paras Ram (deceased). Finding no response, he presumed that Paras Ram had left for his home. Whereafter, he also left. He further stated that next day, police informed him about death of Paras Ram. He held accused persons responsible for the alleged murder of Paras Ram.
3. Both the accused were charged with commission of crime punishable under Section 302 read with Section 34 of the Indian Penal Code for committing murder of deceased Paras Ram (Nepali) as well as with the offence punishable under Section 323 read with Section 34 of the Indian Penal Code for causing injuries to Harka Bahadur. Both the accused persons pleaded not guilty and claimed trial.
4. For establishing its case, the prosecution examined 24 witnesses. The statements of both accused persons under Section 313 of Code of Criminal Procedure was recorded, to which they pleaded not guilty and claimed trial. No defence was led by the accused persons.
5. We have heard learned counsel for the appellants-accused persons as well as learned Additional Advocate General and minutely gone through the entire case record.
6. For holding the accused persons guilty of offence punishable under Section 302 of the Indian Penal Code, learned Trial Court based its decision primarily on:
(i) Last seen theory.
(ii) Circumstantial evidence.
(iii) Disclosure statements.
7. We are of the considered view that in the instant case the evidence has not been correctly an
