STATE OF HIMACHAL PRADESH Vs. UTTAM KUMAR & ORS  INSC 484 (27 April 2007)
S. B. Sinha & Markandey Katju
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
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 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 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
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 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
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
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 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.