STATE OF HIMACHAL PRADESH versus UTTAM KUMAR AND ORS.

These appeals have been filed by the of Himachal Pradesh against the judgment of the Himachal High Court 11.5.2000 in Criminal Appeal Nos.199of1998, 25of1998, 50of1998 and of I 998 by which the conviction of the accused by the trial court was aside.

p. 860, margin A

Heard learned counsel of the parties and perused the record.

p. 860, margin B

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 accused Uttam Kumar approached Vasu Dev to hire his taxi for going to saying that his brother had met with an accident near Surajpur and was a serious condition. Vasu Dev, however, expressed his inability to take his 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,. arrangement might be made for taking him to Kalka. Since Ramesh Kumar going to Solan for servicing of his car, Vasu Dev asked him to carry accused upto Kalka. Uttam Kumar informed them that he wanted to carry more persons in the vehicle from Mori Kyar road and two more from Thereupon, Ramesh Kumar, deceased, along with accused Uttam Kumar his car to Mori Kyar and from there, they started towards Kalka. On the 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 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 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 under Section 102 Cr.P.C. as the same was found lying abandoned. Vasu 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. the meanwhile, on the same day, Sita Ram (PW-I), father of Ramesh Kumar and Vasu Dev, lodged a report about the missing of Ramesh Kumar 1.4. I 997 at Police Station, Theog. In the evening on the same day, when Dev returned home, he informed his father about taking in possession abandoned car of Ramesh Kumar by Spatu Police. This made Sita api;rehensive of the safety of his son Ramesh Kumar. On 6.4.1997, when about the report lodged by his father, PW-I 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.50of1997 under Sections 364/34 lPC 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 i 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 D 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 ofVasu 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.

pp. 860–861, margin B

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 F 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-Jn-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 Inder H A 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 Praveen Sabarwal had hidden the dead body of Ramesh Kumar under a culvert near 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 deceased 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 D 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 F 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.

pp. 861–862

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 taken in possession by the police.

pp. 862–863

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

p. 863, margin A

On conclusion of the investigation, the Officer-In-Charge concerned police station submitted a charge-sheet against the accused under Sections 302, 201, 212, 404, 414 and 120-8 !PC.

p. 863, margin D

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

p. 863, margin E

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

p. 863, margin F

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

pp. 863–864, margin G

The learned Sessions Judge found the commission of the offences for which they were convicted aforesaid.

p. 864, margin B

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

p. 864, margin C

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

p. 864, margin C

For example, in para 49 of the impugned judgment that the identity of the accused Uttam Kumar as one allegedly travelled with the deceased, is not established. connection, it seems to us that the identity of Uttam established by witness Vasu Dev-PW-2, who has stated it was Uttam Kumar who had approached him to hire We see no good reason to disbelieve the evidence connection because there does not appear to be any Dev and Uttam Kumar. Similarly, PW-7 lnder Singh Chauhan Uttam Kumar as the person who went with the deceased the latter's car. PW-9 Inder Singh son of Mathu Ram same effect and has identified Uttam Kumar as the Ramesh Kumar in the latter's car.

p. 864, margin E

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

pp. 864–865, margin G

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

p. 865, margin A

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.

p. 865, margin B

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.

p. 865, margin C

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.

p. 865, margin D

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. N.J. Appeals allowed.

p. 865, margin F