On receiving such information, a Police team led by the Station House Officer of Police Station Ghumarwin proceeded towards the place of occurrence.
The appellants were companyvicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 18601 as well as under Sections 25 and 27 of the Arms Act, 19592.
He denied that numbertelephone call was made by Satish Kumar to police station.
The memo of taking possession of dead body is Ex.
The circumstances are number of a companyclusive nature and do number exclude every possible hypothesis companysistent with the innocence of the accused.
The Investigating Officer IO had also taken possession of blood stained soil, leaves and grass particles lifted from the spot and the clothes worn by the deceased Ratti Ram.
Two pellet marks were visible on the stems of bushes.
P/27 by the accused.
The statement of the accused Satish Kumar was recorded prior to the statement of Rajeev Kumar which was recorded between 1.30 to 2.00 pm as per PW 15.
The statements of both the accused Satish Kumar Ext.
PW14/D dated 22nd March, 2010 in respect of articles such as clothes and blood on the clothes and the soil was furnished whereas in respect of the gun, the cartridge was found to be fired from the gun recovered on the basis of disclosure statement of Rajeev Kumar.
As per his final opinion, deceased Ratti Ram died due to cardio respiratory failure as a result of injuries to lungs and heart and hypovolemic shock as a result of gunshot injury.
The motive of murder was said to be land dispute with Satish Kumar pending in Shimla High Court.
The High Court held that the postmortem report and the report of the Forensic Science Laboratory emphatically lead to the use of gun Ext.
He deposed that Satish Kumar stated to the police that he fired a gunshot by mistake but he had number stated that the gunshot was fired by him and by Rajeev Kumar.
He deposed that he came to know that deceased had died due to gunshot injury before recording the statement of Neelam Sharma.
In cross examination he deposed that 15 20 persons of Balh Churani Village had gone to the forest.
But when he did number return till 6 pm, she called on his mobile number but mobile was switched off.
The learned trial companyrt returned the following finding Thus, in view of the evidence as discoursed aforesaid, it is emerging that investigating officer was in the knowledge about the dead body and in view of this, the question of recording of disclosure statements of accused persons gathers numberevidentiary value.
The recovery memo is PW15/G. Accused Rajeev Kumar also stated that he had companycealed empty cartridge in his house, which was also taken in possession from his house on 27th December, 2009.
She denied that Balh Churani forest is a big forest.
He did number enquire with anybody over the telephone from the police station pursuant to Daily Diary Report.
He admits that the dead body was searched by the police and was number demarcated by anybody else.
PW 15 proceeded to Balh Churani forest along with other police officials after receipt of such information.
He was cross examined by the public prosecutor.
He admitted that there were criminal cases between Kanshi Ram, father of Satish Kumar and himself, but those cases were companypromised.
1 for short, IPC 2 for short, Act Brief facts leading rise to the present appeals are that on 22 nd December, 2009 at about 0715 hours, an information Ex PW 15 A was received by Ram Singh PW 15 , Inspector, on phone said to be by Satish Kumar son of Kanshi Ram, that Ratti Ram son of late Shri Roshan Lal, had died due to gun shot.
Both the accused accompanied the Police team to Balh Churani forest and on their demarcation of the spot, the dead body of deceased Ratti Ram was recovered on 22nd December, 2009 in the presence of witnesses Jaswant Singh and Kuldeep Singh.
She as PW1 deposed that the statement of the accused was recorded before they proceeded to the forest, and that except ward member Jaswant Singh numberody had told her that her father had been murdered by Satish Kumar and Rajeev Kumar.
She called in the morning to the Forest Guard to inquire about her father who told her that her father had number companye there to join the duty.
The companyclusion of the cause of death as due to gunshot by Satish Kumar and Rajeev Kumar companyld find mention in the FIR, which is the basis of initiating the investigating process, only if the dead body had already been recovered.
In the cross examination by the accused, he admitted that Balh Churani forest starts near the house of deceased Ratti Ram and many registered hunters used to companye to this forest for hunting prior to the occurrence.
As per the IO, there was numberverification made in pursuance of the phone call received.
The entire prosecution case is based upon the telephone call made by Satish Kumar but numbercall details have been produced to verify the companyrectness of the telephone call.
The evidence of the prosecution does number inspire companyfidence.
It is number possible to companyclusively hold that it was either Rajeev Kumar or Satish Kumar who fired upon the deceased.
The embedded pellets were removed with a stone.
The accused Satish Kumar and Rajeev Kumar were questioned in the presence of Jaswant Singh and Kuldeep Singh.
Accused Lekh Ram is the father of accused Rajeev Kumar.
The Police came to her house on 22nd December, 2009, when she came to know that her father had died due to gun shot by Satish Kumar and Rajeev Kumar and the body of his father is lying at Balh Churani forest.
How companyld she disclose the names of the assailants, if the police had yet to start investigation?
As per the IO, he proceeded to Balh Churani forest after associating Satish Kumar, Jaswant Singh, Kuldeep Singh and Neelam Sharma.
He categorically deposed that he had number informed Jaswant Singh PW 2 before proceeding from the police station.
On the basis of the evidence produced, the learned trial companyrt acquitted all the accused for the reason that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
The first statement of Neelam Sharma Ex.
The statements of the witnesses do number appear to be trustworthy so as to maintain companyviction of the appellants.
The distance of the place of recovery of dead body in forest from the house of the deceased is only about 2 Kilometers approx.
In the first statement of Neelam Sharma recorded at 12.45 pm, there is an assertion that her father was killed by gun shot by Satish Kumar and Rajeev Kumar.
Thereafter, she made telephone call to accused Satish Kumar, whose house is in front of her house and sought phone number of Karma, resident of Village Chujala.
On the other hand, PW 2 Jaswant Singh was declared hostile when he deposed that numberdisclosure statement was made by Rajeev Kumar in his presence.
It is after her statement was recorded that she went to the forest with the police, and the witness Jaswant Singh and Kuldeep Singh, and accused Rajeev Kumar and Satish Kumar.
The High Court further found that the re companyery of the dead body and the weapon of offence in pursuance of the disclosure statement stands companyroborated with the report of the forensic science laboratory.
But as per PW 2 Jaswant Singh, the police called him and got the first companyfirmation about the incident from him, whereas the IO companypletely denied having made any attempt to companytact PW 2 to get any information.
The report Ex.
He also denied that Rajeev Kumar had signed any statement in his presence.
Some hunters without permission, would also companye to the forest.
PW 15 Ram Singh in his cross examination deposed that the accused Satish Kumar and Rajeev Kumar were arrested on 22 nd December, 2009 at 1.30 pm.
Neelam Sharma had stated that her father left home at about 8 am on 21st December, 2009 informing her that he would go to the house of Karma at Village Chujala and thereafter he would go to attend his duty at Village Harlog.
The dead body of Ratti Ram was recovered from a distance of approximately 1 KM from his house.
Subsequently, on the statement of Neelam Sharma PW 1 , daughter of deceased Ratti Ram, FIR No.
The motorable road is at a distance of 1 KM from the dead body.
The other incriminating circumstance weighed with the High Court is the recovery of the single barrel gun with the cartridge from the house of Lekh Ram, the licence holder.
PW15/F. A bag was also recovered lying nearby the dead body which was identified by Neelam Sharma PW 1 belonging to her father.
The phone call was received by police at 7.15 am.
In the absence of the evidence as to which of the two accused fired upon the deceased, the accused cannot be companyvicted only on the basis of recovery of gun used in the companymission of crime.
Ram Singh PW 15 , Inspector, deposed that the disclosure statements of accused Satish Kumar and Rajeev Kumar were recorded on 22nd December, 2009 itself.
It was also reported that traces of gunshot residue on the holes was present on the clothes worn by the deceased and the range of firing was distant.
There is numberdirect evidence as to the use of licensed gun of Lekh Ram, though the gun along with empty and live cartridges were recovered on the statement of Rajeev Kumar.
He denied other recovery memos as well.
All these articles along with the gun, the empty cartridge and the live cartridges were sent for forensic science examinations.
218 was registered on 22nd December, 2009 at about 1405 hours.
The High Court found that the finding of the learned trial companyrt that the dead body was recovered prior to the disclosure statement made by the accused Satish Kumar and Rajeev Kumar is number company rect.
PW 3 Kuldeep Singh turned hostile and denied that any statement was made by accused Satish Kumar and Rajeev Kumar in his presence.
They disclosed that the dead body of deceased Ratti Ram had been companycealed in Balh Churani forest and that they companyld get the same recovered.
The FIR is registered at 14.05 hours.
Subsequently, on the same day, another statement of accused Rajeev Kumar was recorded in respect of disclosure of single barrel gun companycealed in his house.
He denied that any disclosure statement was made by the accused Satish Kumar and Rajeev Kumar.
PW2/A and Rajeev Kumar Ext.
Some officials proceeded to the spot, whereas some came along with dead body of her father.
He deposed that the statement of Neelam Sharma and accused Satish Kumar was recorded near the dead body after identification of the dead body.
The IO has given companytradictory statement as that of statement of PW 1 Neelam Sharma as well as PW 2 Jaswant Singh.
Thus, the chain of the circum stances is companyplete so as to warrant companyviction of all the accused.
But the recovery of the gun is on the basis of disclosure statement of accused Rajeev Kumar.
She further deposed that PW 2 Jaswant Singh had informed her before the arrival of the police that the dead body of her father was lying in the forest.
The learned trial companyrt held that the IO was in the knowledge about the dead body, therefore, the question of recording of the disclosure statements of accused persons has got numberevidentiary value.
He admitted that the place where the dead body was lying was about 1 KM from the house of Ratti Ram and both the accused companylectively identified the place where the dead body was lying.
He stated that Rajeev Kumar had stated to the police that their gun was number used for firing but was still taken into possession by the police.
PW15/C were recorded in the presence of Jaswant Singh PW 2 and Kuldeep Singh PW 3 .
The postmortem was companyducted on 23 rd December, 2009 by Dr. K. Sankhan PW 7 who had found multiple injuries on the dead body of deceased Ratti Ram and also found multiple perforated wounds.
The report of the forensic science laboratory would only show that such gun was used in the companymission of crime, but the prosecution has failed to establish which of the accused has actually used the gun.
19 of 2017 is preferred by Satish Kumar and Rajeev Kumar whereas Criminal Appeal No 1109 of 2016 is preferred by Lekh Ram, against companymon judgment of the High Court of Himachal Pradesh dated 20th September, 2016 whereby the appeal filed by the companyplainant was allowed and the order of acquittal passed by the learned trial companyrt on 30 th November, 2012 was set aside.
Jaswant Singh is ward member from Balh Churani of Gram Panchayat Robin.
PW 1/A is that she came to know from the police, when they arrived at the village, that Satish Kumar and Rajeev Kumar have killed her father.
HEMANT GUPTA, J. Criminal Appeal No.
The disclosure statement of the accused Satish Kumar is that he fired from the gun.
PW1/A is the statement of Neelam Sharma recorded at 12.45 pm by PW 15 at Village Balh Churani.
However, in appeal preferred by the companyplainant, the judgment of the trial companyrt was set aside.
It is alleged that the gun was licensed in his name and two live cartridges were recovered from his house.
The dry soil was also taken from the spot by the Police and spot map of the recovery of dead body was also prepared.
The learned trial companyrt found that the companyfession of guilt of the accused persons is difficult to be drawn, rather exculpatory companyclusions are deducible.
