State
of Himachal Pradesh Vs. Dhani Ram & Ors [1996] INSC
1210 (25 September 1996)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Kurdukar S.P. (J) M.K. Mukherjee.J.
ACT:
HEAD NOTE:
Dhani
Ram, Bhagat Ram and Kanshi Ram, the three respondents herein, were tried by the
Sessions Judge, Kangra for committing the murder of Amarnath in their village Kui
on November 20, 1979 in furtherance of their common
intention. By his judgment dated May 17, 1982, the learned Judge convicted Dhani Ram under Section 302
I.P.C. and sentenced him to imprisonment for life, while acquitting the other
two respondents. Against the above judgment two appeals were preferred in the
High Court; one by Dhani Ram against his conviction and sentence and the other
by the State against the acquittal of Bhagat Ram and Kanshi Ram.
In
disposing of the appeals by a common judgment, the High Court dismissed the
appeal of the State and allowed that of Dhani Ram. The above judgment of the
High Court is under challenge in these appeals at the instance of the State of Himachal Pradesh.
2. In
the absence of any eye witness to the murder the prosecution relied upon the
following circumstances to prove its case:
(i) On
November 20, 1979 Amar Nath met with a violent and
unnatural death in village Kui and his dead body was found in a Nala near the
house of Labdhi (PW 1);
(ii) Amar
Nath was last seen near the house of Labdhi in the company of the three accused
persons (the respondents);
(iii) Dhani
Ram disappeared from the village soon after the occurrence;
(iv) Dhani
Ram, who was then employed in Indo Tibetian Border Police, had come to the
village on leave for a month but suddenly he got his leave cancelled on a false
pretext;
(v )
The jersey and the hunting shoes which Dhani Ram was wearing on the day of
occurrence were found to bear stains of human blood;
(vi)
The pajama and the shirt of Bhagat Ram which he was wearing on the day of
occurrence were found to contain blood stains;
(vii)
While in police custody Bhagat Ram made a disclosure statement in pursuance of
which he got recovered the watch (Ex.P.2) which the deceased was having on his
person on the day of occurrence;
(viii)
The pajama, shirt and fleet shoes which Kanshi Ram was wearing on the day of
occurrence were found to contain blood stains; and (ix) Amar Nath had
instituted a suit for recovery of Rs. 1,000/- against the father of Dhani Ram
which after his death, was being defended by Dhani Ram and that suit was
pending when the occurrence took place.
3. On
scrutiny of the evidence adduced by the prosecution to prove the above
circumstances the trial Judge held that those mentioned in serial Nos. (i),
(iii), (iv), (v) and (ix) stood conclusively proved. As regards the
circumstance at serial No. (ii) the trial Judge did not accept the prosecution
version that the deceased had been last seen with all the three accused
persons. He was however satisfied that Dhani Ram had been seen following the
deceased towards the house of Labdhi (PW 1) when he (the deceased) left the
house of Indro (PW 3) in the forenoon of the day of occurrence. So far as the
other three circumstances were concerned the trial Judge held that none of them
was proved. With the above findings the learned Judge concluded that the proved
circumstances irresistibly pointed to the quilt of Dhani Ram (Respondent No.1)
and the same were inconsistent with h is innocence. Accordingly the trial Judge
convicted and sentenced Dhani Ram under Section 302 I.P.C. and ordered
acquittal of the other two respondents.
4. In
disposing of the appeals the High Court reappraised the entire evidence and
agreed with the findings of the trial Judge regarding circumstances under
serial Nos.(i), (vii), (viii) and (ix). The remark of the High Court regarding
circumstance under serial No. (iii) was that Dhani Ram himself admitted that he
left the village at 10.30 A.M.but in the absence of any positive evidence about
the exact time of the murder of Amarnath it would not be correct to say that he
left the village soon after the murder. While dealing with circumstance under
serial No.(iv) the High Court observed that there was no material on record
from which it could be said that Dhani Ram had cancelled his leave on a false
pretext; and that; on the contrary, the evidence indicated he had sufficient
reason to cancel his leave. As regards the circumstance under serial No. (ix) the
comment of the High Court was that the suit in question was instituted in the
year 1972 and, therefore, in 1979 when the murder took place it could not have
furnished any motive to Dhani Ram to commit the murder. So far as the other two
circumstances under serial Nos. (ii) and (v) were concerned the High Court
disagreed with the findings of the trial Court and held that the prosecution
failed to establish those circumstances. With the above findings and comments
the High Court passed the impugned judgment.
5. We
have heard Mr. Altaf Ahmad, the learned Additional Solicitor General, who
appeared on behalf of the appellants, and Mr.S.N. Mehta, the learned counsel
for the respondents and considered the entire evidence adduced during trial. At
the outset Mr. Ahmad fairly concluded that considering the nature of
incriminating circumstances alleged against the respondent Nos. 2 and 3 he was
unable to contend that their acquittal by the trial Court, as affirmed by the High
Court, was unjustified. He, however, strongly urged that the prosecution had
succeeded in conclusively proving its case against Dhani Ram, the respondent
No.1. According to Mr. Ahmad the High Court was not justified in upsetting the
findings of the trial Judge in respect of the circumstances under serial Nos. (ii)
and (v) as the same were based on proper appreciation of the evidence. He next
urged that those two circumstances taken cumulatively with the other proved
circumstances formed a chain so complete that there was no escape from the
conclusion that the respondent No.1- and non else had committed the murder of Amar
Nath. In responding, Mr. Mehta concurred with the submission of Mr. Ahmad that
the above two circumstances were the most incriminating and only on proof
thereof the prosecution could legitimately claim that the case against the
respondent No.1 stood proved but submitted that the findings of the High Court
in this regard could not be said to be improper, much less perverse.
6. In
the context of the respective stands of the learned counsel we have to only
ascertain whether the findings of the High Court in respect of the above two
circumstances are patently wrong so as to entitle us to disturb the order of
acquittal. To prove the aforesaid circumstances the prosecution rested its case
solely upon the evidence of Indro (PW 3), who at the material time was aged
about nine years. The High Court discussed her evidence at length to decide
whether her evidence could be relied upon. In answering the question in the
negative the High Court first took note of the admitted fact that Brahmo Devi,
mother of Indro, was inimical towards Dhani Ram and she had filed a criminal
complaint against wife of Dhani Ram only a month before the occurrence in
question. In that background the High Court observed that there was every
reason to assume that Brahmo Devi had opportunity of influencing this child and
that she was also interested in so doing on account of her enmity with Dhani
Ram. The High Court next noticed that Indro identified the jersy and the
hunting shoes which the appellant was wearing on the day when he was last seem
with the deceased and the watch (Ex.P.2.), as the one and the same which the
deceased was wearing on his person on the day of occurrence. In commenting upon
her above evidence the High Court observed that even if it was assumed that she
could see Dhani Ram from a distance going away with the appellant she would
certainly not have been in a position to remember or identifying his wearing
apparels and the shoes he was wearing and the watch which Amar Nath had on his
wrist. From all these facts and circumstances the High Court deduced that
possibility of her being tutored could not be ruled out. Along with this aspect
of the matter the High Court took note of the fact that there was no evidence
to corroborate her testimony to hold that the prosecution failed to establish
circumstances under serial Nos. (ii) and (v). Since the above reasonings of the
High Court are cogent and convincing and cannot by any stretch of imagination
be said to be baseless or untenable no interference with the impugned judgment
is called for.
7. For
the foregoing discussion we dismiss the appeals. The respondents, who are on
bail, are discharged from their respective bail bonds.
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