Himachal Pradesh High Court
Kamlesh Kumar vs State Of H.P on 3 June, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 25 of 2013.
Reserved on: 27.05.2015.
.
Date of Decision : 3rd June, 2015.
Kamlesh Kumar .....Appellant.
Versus
State of H.P. .....Respondent.
Coram r
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Satyen Vaidya, Advocate. For the Respondent: Mr. M.A. Khan, Additional Advocate General ____________________________________________ Per Sureshwar Thakur, Judge The instant appeal is directed by the accused/appellant against the impugned judgment rendered on 19.10.2012 by the learned Additional Sessions Judge (Fast Track Court), Shimla in Session Trial No. 8-S/7 of 2011, whereby, the learned trial Court convicted and sentenced the ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 2 accused/appellant for his having allegedly committed offences punishable under Sections 302 and 201 of the IPC.
3. Brief facts of the case are that on 6.11.2010 at 4.10 .
p.m., Narayan Negi, resident of Ganeri informed the police telephonically that two of his servants had altercation with each other. One of them is lying in the bushes and appears to be dead. As per the telephonical information, rapat has been entered in daily diary register. ASI Ram Lal, along with other police officials, went towards Ganeri village in official vehicle No.HP-07-0686. When the police reached at the spot, Narayan Singh Negi got his statement recorded under Section 154, Cr.P.C., whereby he revealed to the police that he is an agriculturist by profession. He has one outhouse at his orchard. He engaged one Kamlesh Kumar about three months back to look after his orchard and also engaged one Vishal Bahadur about a month back. Both of them used to take meal in his house and sleep in the outhouse (dogri). On 5.11.2010, both Kamlesh and Vishal went towards outhouse side at 8.30 P.M. after taking meal in his house. On 6.11.2010, only Kamlesh came to his house at 8 a.m. When he asked Kamlesh about ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 3 Vishal Bahadur, then Kamlesh disclosed to him that Vishal Bahadur had already left his room when he woke up in the morning. Kamlesh went to the Ghasni to tie the grass bundles .
and he also went to the house of Jagdish Sharma after taking his meals. After some time, Jagdish Sharma, disclosed him that he received a call last night at about 11 p.m., from Kamlesh on his mobile phone disclosing that Vishal Bahadur fell down, then he enquired about his number and disconnected the phone.
hearing these words from Jagdish he became somewhat suspicious as Kamlesh came to his house alone and did not tell After that Vishal Bahadur fell down during the night time. Narayan Singh Negi further told to the police that he, along with Jagdish Sharma and Devinder Chauhan, came to his residential house and called Kamlesh there. He inquired from Kamlesh about the call made by him last night to Jagdish Sharma, then Kamlesh became perplexed. Kamlesh disclosed to him that he had an altercation with Vishal over the mobile phone, so, he gave blow on the head of Vishal Bhadur with a stick (Binda) and threw his dead body in the bushes. Thereafter, he went towards outhouse side along with Jadish Sharma, Devinder Chauhan and Kamlesh ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 4 and saw blood on the walls and on the clothes. They went to the hill side, saw the body of Vishal Bahadur and immediately informed the police telephonically. The complaint further .
disclosed to the police that Kamlesh disclosed to him that he washed his clothes, having blood stains, after the incident and also wiped the floor to remove the blood stains. The statement of the complainant was sent to police station through HHC Kulbhushan. The police party present at Ganeri deputed some persons to protect the dead body and some police officials and villagers stayed in the outhouse of Narayan Singh. The police party started investigation during the morning hours i.e. at 6.30 a.m. The room where the alleged incident had taken place, was inspected in the presence of witnesses and Narayan Singh Negi.
The investigating officer had prepared the site plan and clicked the photographs of the room. They also took into possession the blood stained clothes of Vishal Bahadur. The police also took into possession, the stick stained with blood, prepared its sketch and wrapped the same in a parcel. The police have also lifted the blood from the walls and floor with the help of cotton swab.
They also took into possession the register, diary and attendance ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 5 note book belonging to the deceased. Recovery and seizure memo to this effect was also prepared in the presence of the witnesses. The police party thereafter, went to that place where .
the dead body was lying in the bushes. The photographs were clicked, site plan was prepared and the dead body was pulled out from the bushes. During the personal search of the dead body, the police did not recover anything except for the clothes, which he was wearing. The dead body was taken to CH, Chopal where the post mortem of the deceased was conducted. The viscera were also preserved along with the clothes. The dead body of Vishal Bahadur was handed over to Naryan Singh Negi for last rituals. The statements of witnesses were recorded. The accused was formally arrested and information regarding his arrest was given to Naryan Singh Negi. On 9.11.2010, the accused made disclosure statement in presence of the witnesses to the effect that he can effect the recovery of clothes and mobile along with charger, which he had hidden near the farm house. The accused took the police to village Ganeri and at the instance of the accused, mobile phone, charger, jacket and pants were recovered near the bathroom of outhouse. The ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 6 photographs of the place of recovery were clicked and the articles, so recovered, were sealed in parcel. On 11.11.2010, request was sent to SP for obtaining call details of mobile phone .
No.98160-07728. After the information received from the telephone department, one Mast Ram, resident of Village Tiprog was found to be the owner of mobile phone, who disclosed to the police that the mobile phone was given by him to deceased, when he was working with him. The viscera and clothes were sent to FSL Junga on 12.11.2010. The Investigating Officer on 27.11.2010 obtained the jamabandi, tatima and temporary demarcation report from local Patwari and also prepared the site plan of the place of incident with the help of PWD officials. The date of birth certificate of the accused was obtained from Pithoragarh, Uttrakhand. The IO also recorded the statements of the witnesses under Section 161 of Cr.P.C. The report of FSL was also obtained, according to which, the shirt, weapon of offence, the jacket of Kamlesh Kumar and the pants of Kamlesh Kumar were having the traces of blood of Vishal Bahadur. During the investigation, it was revealed that the deceased used to refrain the accused from using the mobile phone, so the accused ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 7 developed ill-will towards the deceased. On the eve of Diwali festival, the deceased and the accused took liquor in the house of Narayan Singh and at about 8.30 p.m., they went to the .
outhouse where both of them had altercation with each other.
Kamlesh Kumar accused took the advantage of the fact that Vishal Bahadur was intoxicated, so, he gave beatings with stick to Vishal Bahadur on his head and other parts of the body, as a result of which, Vishal Bahadur died on the spot.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. Accused was charged for his having committed offences punishable under Sections 302 and 201 of the IPC by the learned trial Court to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 22 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 8 Procedure was recorded in which he pleaded innocence and in defence examined three witnesses.
6. On appraisal of the evidence on record, the learned .
trial Court, returned findings of conviction against the accused/respondents.
7. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned counsel appearing for the appellant has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-
appreciation of material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
8. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the learned Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 99. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
.
10. Both, the accused and the deceased were co-
employees of PW-6 Narayan Singh Negi. They resided together in the "Dogari" of PW-6. Both, on the eve of Deepawali which fell on 5.11.2010 have been deposed by PW-6 to have taken r to their meals as well as consumed liquor in his house, whereafter at about 8.30 p.m., as usual they went to the "Dogari".
incident is alleged to have occurred at the place depicted in the The site plan comprised in 22/A. The accused is alleged to have, by user of danda (Ex.P9) at his instance, put to death deceased, Vishal. The recovery of danda, Ex.P-9 was effected at the instance of the accused under memo Ex.PW6/A in pursuance to the disclosure statement made by the accused.
11. The postmortem report, Ex.PW9/B stands proved by the deposition on oath of PW-9, Dr. Vishal Chandel, who carried out the postmortem examination on the dead body of deceased Vishal. The relevant portion of the postmortem report constituting observations recorded in it, is extracted hereinafter:-
::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 10"The deceased was stout and well built, rigorous mortise with fracture left forearm and left leg. While coloured T-shirt, Grey trouser, brown underwear. Clothes covered with sand, mud and dust. Body covered with sand and mud. Face and ears also .
covered with sand, dust and mud.
Generalized, bruises and contusions on body. Mark of ligature nil.
Scalp; Four lacerations on occipital region of skull which were skull deep/bone deep.
First injury 5cm x 2.5 cm Second injury 3 cm x 1 cm.
Third injury 3 cm x 1.5 cm Fourth injury 2 cm x 1.5 cm Skull deep laceration 3 cm x 1.5 cm on frontal region of scalp.
Skull and Vertebra:
r Fracture frontal part of skull. Vertebra normal.
Membrances and Brain.
Concussion frontal region of brain meninges swollen injuries to superficial vessels on occipital region and meniges and brain with clotted blood on surface of brain on occipital region.
Spinal cord normal.
Thorax Walls, ribs and cartilages: left side for criss cross linear contusions 15 cm x 20 cm in length, 5 cm x 6 cm wide reddish blue in colour with generalized bruises which were black in colour.
Pleurae normal, larynx and trachea normal. Right lung normal. Pericardium normal heart normal large vessels etc., normal.
Abdomen Multiple bruises blush reddish in colour, generalized linear criss cross contusion 10 cm x 6 cm in size, 5 to 6 in number, blush red in colour. Peritoneum normal. Mouth, pharynx and oesophagus filled with blood. Stomach and its contents:- wall of stomach contusion present, pinkish in colour with raptured blood vessels semi fluid contents in stomach. Small intestines and their contents. Semi solid contents in small intestine. Walls normal. Large intestines and their contents: normal. Semi solid contents. Liver ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 11 normal. Spleen normal. Kidneys normal. Bladder normal filled with urine. Organs of Generation external and internal normal. Muscles, Bones and Joints:
Multiple contusions in bruises on face and forehead.
.
Contusions and bruises both elbows and arms. Lacerations and contusions on hips, legs and thighs. Disease of deformity nil. Fractures: Skull frontal region, fracture left forearm. Dislocations nil.
Certificate cause of death:
Deep head injury with injury to brain. Probable time that elapsed that almost instantaneous. Between death and postmortem more than 24 hours."
r to During the course of his examination-in-chief, PW-9 has communicated the fact that the deep head injury observed on the person of the deceased and which sequeled his demise can be caused by use of danda, Ex.P-9.
12. The principal prosecution witnesses in proof of the guilt of the accused are PW-6, Narayan Singh Negi, the employer of both the accused and the deceased Vishal, PW-7 Jagdish Sharma and PW-8 Mohi Ram. PW-6 Narayan Singh Negi, in his deposition on oath has deposed that accused Kamlesh was engaged by him about three months prior to the occurrence and deceased Vishal was engaged by him about one month prior to the occurrence. Both have been deposed by him to have on the fateful day taken meals with his family. Both have been deposed to ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 12 be residing in his "Dogari". He further deposes that on the eve of Diwali i.e. on 5.11.2010 both partook meals, as also, consumed liquor in his house. Both have been deposed to have .
left for his "Dogari" at about 8.30 p.m. He further deposes that at about 9.00 P.M., he called Vishal on his mobile and Vishal apprised him that they have reached the "Dogari". On 6.11.2010, at about 8.00 a.m., accused Kamlesh alone came to his house which led him to inquire from accused Kamlesh about Vishal Bahadur. The accused has been deposed to have told him that he woke up late in the morning and by that time Vishal Bhadur had already left the house. There is a disclosure in his deposition on oath that the accused specifically told him that he did not know about the whereabouts of deceased Vishal.
Accused Kamlesh has been stated by him to have taken breakfast and thereafter proceeded to Ghasni to tie bundles of grass. He deposes that at about 11 a.m., he went to the house of Jagdish Sharma and remained with him. After lapse of a considerable time, he disclosed to him that at about 11 p.m., he received calls twice and thrice from accused Kamlesh Kumar over his cell phone. Jagdish Sharma has been deposed by PW-6 to ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 13 have further apprised him that accused Kamlesh then disclosed to him that Vishal Bahadur had fallen down. After his having been apprised about the fate of Vishal Bahadur by Jagdish .
Sharma, he deposes that he suspected some foul play, as Kamlesh came alone for work. Consequently, he along with Jagdish and Devinder Chauhan came to his house and thereupon they called Kamlesh from Ghasni. He deposes that when he inquired from the accused the cause for his calling up Jagdish Sharma over the latter's cell phone and his having apprised him about Vishal Bahadur, his having refused to have made any call to Jagdish Sharma. On re-inquiry by him from the accused about Vishal, accused Kamlesh has been deposed to have become perplexed and then he narrated that he had an altercation with Vishal for a mobile phone succeeded by a scuffle inter se them whereafter Vishal ran away. On repeated queries by PW-6 from the accused, the latter is deposed to have divulged to him that he had given severe beatings to deceased Vishal with a stick and thereafter had thrown his body in the bushes. On hearing the story from the accused, PW-6 rang up Up-Pradhan, Mohi Ram and called him to his house. Thereafter they went to Dogri and ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 14 Mohi Ram also met them on the way. Blood was noticed to be spilled on floor of the "Dogari", besides blood was splashed on the walls and on the shirt of Vishal. It was also observed by .
them that the accused had tried to wipe out blood stains from the floor and walls. He also inquired from accused Kamlesh about Vishal, whereafter he disclosed to him that Vishal had run away from the place and on his repeated queries, accused Kamlesh disclosed to him that the body of Vishal is lying in the bushes. The accused has been deposed to have shown to them the stick with which he gave blows to deceased Vishal and which was kept/concealed by him behind the door. The accused has been deposed to have led PW-6, PW-7 and PW-8 to the place where the dead body of deceased Vishal was lying. After seeing the dead body, the aforesaid deposes to have returned to the "Dogari" and thereafter theirs having informed the police of Police Station, Chopal at about 4.00 p.m. In cross-examination he deposes that the relations inter se the deceased and the accused were cordial. Besides, in his cross-examination there occurs a disclosure that on the day when the police visited the site of occurrence, the accused had shown to the police danda, ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 15 Ex.P-9. However, he concedes to the fact that the police had not taken into possession danda, Ex.P-9, on 6.11.2010.
Moreover, his deposition in his cross-examination bespeaks the .
factum of the accused having been kept in the Dogri on 6.11.2010 and 7.11.2010 till the body of Vishal Bahadur was taken for postmortem. He further deposes in his cross-
examination that the police officials also stayed in the "Dogri" on 6.11.2011. Furthermore, he has articulated in his deposition on oath comprised in his cross-examination that the accused never concerted to run away from the house or the "Dogri".
13. PW-7, Jagdish Sharma also corroborates the testimony of PW-6 especially qua the pivotal fact of the accused in his presence and in the presence of of PW-6 and PW-8 Mohi Ram having confessed his guilt. Besides, he therein explicitly pronounces the fact of on 5.11.2010 of accused Kamlesh having communicated to him on his mobile the fact that Vishal had fallen down. In his cross-examination, he deposes that he had apprised PW-6 about the phone call received by him from accused Kamlesh at the very moment he reached his home. He deposes that they did not disclose anything to Mohi Ram but ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 16 asked him to inquire personally from accused about the incident.
He deposes that the police took into possession stick, Ex.P-9 on 7.11.2010.
.
14. PW-8 Mohi Ram in his deposition deposed a version in corroboration and in tandem with the depositions of PW-6 and PW-7. Besides, he in his examination-in-chief has proven parcel Ex.P-1, containing match boxes, Ex.P-2 and Ex.P-3, having stick Ex.P-9.
controlled soil and blood sample, Ex.P-4 and Ex.P-5. He has also proven parcel Ex.P-6, containing the check shirt (Ex.P-7) and He has further proven parcel Ex.P-8, containing register (Ex.P-10), diary (Ex.P-11), attendance note book )ExP-
12). All the aforesaid articles have been deposed by this witness to have been taken into possession by the police under recovery memo Ex.PW6/A. Recovery memo Ex.PW6/A has been deposed by this witness to be bearing his signatures. The dead body has been deposed by this witness to have been identified by PW-6 Naryan Singh Negi qua which memo Ex.PW6/B was prepared by the police. Memo Ex.PW6/B has been deposed by this witness to be bearing his signature along with the signatures of Narayan Singh and Devinder. This witness has deposed his having ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 17 accompanied Narayan Singh to CH, Chopal where the post mortem of the deceased was conducted. The doctor concerned has been deposed by this witness to have handed over the .
parcel of cloth, which the deceased was wearing to the police.
The parcel, Ex.P19 has been deposed by this witness to be bearing his signatures in red circle. The dead body has been deposed by this witness to have been handed over to Narayan Singh under memo Ex.PW6/D for carrying out his last rituals. In cross-examination he deposed that his statement as well as the statements of PW6 and PW-7 were recorded on 6.11.2010 by the police.
15. The instant case is not anvilled upon eye witness account qua the occurrence. It, in its entirety is harboured upon circumstantial evidence. In a case which is anvilled upon circumstantial evidence, motive which otherwise does not assume significance, assumes significance. The motive as attributed to the accused is constituted in a disclosure made by the accused on inquiry by PW-6 of an altercation having ensued inter se him and deceased Vishal Bhadur for/over a mobile.
However, the motive as attributed to the accused by PW-6 ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 18 arising from a disclosure made to him on inquiry from accused Kamlesh stands denuded of its probative efficacy, in the face of the genesis of the occurrence, as promptly disclosed to the police .
and recorded in the daily diary report comprised in Ex.PW13/A being not in tandem with or in harmony with the depositions of PW-6, PW-7 and PW-8 vis-à-vis the fact respectively occurring therein of a purported disclosure having been made by the accused to PW-7 in the night of 5.11.2010 over the cell phone of the latter qua the fact of the deceased having fallen down. On the edifice of the disclosure purportedly made by the accused to PW-7 over the latter's cell phone qua the fact of the deceased having fallen down, the prosecution concerts to prove that the accused was in the company of the deceased at the time when he suffered head injury and which ultimately sequeled his demise. On the anvil of the aforesaid hypothesis, the prosecution has endeavoured to connect the accused in the murder of deceased Vishal.
16. Now this Court is beset with the conundrum to gauge the veracity or otherwise of the factum of the disclosure by PW-7 in his deposition on oath of the accused having over his cell ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 19 phone on the night of 5.11.2011, communicated to him the fact of the deceased Vishal having fallen down. The veracity thereof has to be gauged and comprehended in the light of its having or .
not found occurrence in the daily diary report qua the incident promptly transmitted or furnished by the informant to the police, comprised in Ex.PW13/A. Even when the preponderant fact of PW-6 on 6.11.2011 having been apprised by PW-7 about a disclosure having been made by accused Kamlesh over the cell phone of the latter qua the fact of the deceased having fallen down, besides PW-8 when also deposes that the statement of the witnesses were recorded on 6.11.2010, obviously, then the said fact ought to have, when conveyed by PW-7 to PW-6 prior to the transmission by the latter to the police station concerned, information qua the incident, found occurrence therein. However, a perusal of the daily diary report comprised in Ex.PW13/A omits to convey the fact of the informant having reported the fact of the accused having disclosed to PW-7 the pivotal fact of deceased Vishal having fallen down. The omission of recital of the pivotal fact, in the daily diary report comprised in Ex.PW13/A of the accused having disclosed and divulged to PW-7 over the ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 20 mobile/cell phone of the latter, of the deceased having fallen down though, PW-6 was as emanating on a reading of the testimony of PW-7, informed promptly qua the said disclosure .
by the accused to him qua the aforesaid fact, leads to the apt sequel, that either the said information purveyed by PW-7 to PW-
6, was suppressed or PW-6, PW-7 and PW-8 are concocting the factum of the accused having disclosed to PW-7 over his cell r to phone in the night of 5.11.2010, the fact of the deceased having fallen down. Hence on account of reticence in Ex.PW13/A of the aforesaid germane fact, as such, not only a shroud of doubt engulfs the factum of the purported disclosure by the accused to PW-7 over the mobile phone of the latter qua the fact of the deceased having fallen down, besides the disclosure aforesaid by the accused to PW-7, obviously suffers immense erosion.
Consequently, the purported extra judicial confession made by accused Kamlesh to PW-7 over the mobile phone of the latter also stands in the realm of incredulity. Moreover, the concert on the part of the prosecution to hence prove that the accused was last seen in the company of the deceased at a time, when he ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 21 suffered head injuries which sequeled his demise, has remained unsubstantitated.
17. The depositions on oath of PW-6, PW-7 and PW-8 .
divulging therein that the accused extra judicially confessed his guilt before each of them and also led them to the site of occurrence besides, showed them the place of hiding and concealment of the dead body of the deceased and in addition showed them the stick used by him to deliver blows on the head of the deceased, while constituting facts which are in succession to the disclosure made by PW-7 to PW-6 qua the former having received on the night of 5.11.2010 a communication over his mobile phone from the accused, disclosing to him the fact of the deceased having fallen down, the effect of which purported disclosure has been for the reasons spelt out hereinabove construed to be unbelievable as well as incredulous, also then as a concomitant stand imbued with the vice of prevarication or falsehood. In other words, the successively or subsequently made extra judicial confession by the accused qua his guilt before PW-6, PW-7 and PW-8 stands to be discarded. What garners the inference that the efforts on the part of PW-6, PW-7 ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 22 and PW-8 to elicit from the accused truth qua the occurrence which purportedly yielded from the accused a purported communication by him to them of a confession of his guilt are .
also a well engineered invention and concoction, is embedded in the fact that the daily diary report comprised in Ex.PW13/A does not enunciate therein the fact of an extra judicial confession having been made by the accused qua his guilt before PW-6, PW-7 and PW-8. Since the information comprised in Ex.PW13/A was in quick succession to the fateful incident and also was preceded by the disclosure made by PW-7 to PW-6 qua the accused having on the night of 5.11.2010 disclosed to him over his mobile the fact of the deceased having fallen down, hence, even if, the information qua the incident was telephonically transmitted by the informant to the police station concerned obviously, then the extra judicial confession attributed by PW-6, PW-7 and PW-8 to the accused qua his guilt ought to have found occurrence therein. Its suppression by the informant at the time of his having transmitted information to the police station concerned which resulted in the recording of the daily diary report comprised in Ex.PW13/A leads to the sequeling inference ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 23 that the purported extra judicial confession made by the accused to PW-6, PW-7 and PW-8 was not as deposed by them made by the accused before either of them preceding to the reporting of .
the occurrence rather the said fact of the extra judicial confession having been purportedly made by the accused to PW-
6, PW-7 and PW-8 is an ingenuous invention at the instance of the prosecution witnesses or a devised machination to falsely implicate the accused.
18. to The effect of the above discussion is that even the motive as purportedly attributed to the accused by PW-6, PW-7 and PW-8 for his having committed the murder of the deceased whose confession was along with the purported extra judicial confession made by the accused qua his guilt before PW-6, PW-7 and PW-8 was made prior to the transmission of the information qua the fateful occurrence by the informant to the police station concerned sequeling the recording of daily diary report comprised in Ex.PW13/A, yet the aforesaid fact connoting the carrying of motive by the accused in his mind to murder deceased Vishal Bahadur as deposed to be communicated by the accused to PW-6, PW-7 and PW-8 while not finding occurrence in ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 24 Ex.PW13/A, renders their depositions on oath while being hence an improvement or an embellishment over the daily diary report, to be unworthy of credence.
.
19. Even though, the prosecution has relied upon the recovery of danda, Ex.P-9 under recovery memo Ex.PW6/A purportedly preceded by a disclosure statement having been made by the accused yet the recovery of danda Ex.P-9 at the instance of the accused, loses its vigour and efficacy given the fact that prior to its recovery at the instance of the accused from the place of its concealment and hiding, it was shown by the accused to PW-6, PW-7 and PW-8. Apart there from, when prior to the occurrence, the factum of its user and its place of concealment was known to PW-6, PW-7 and PW-8 yet with the daily diary report comprised in Ex.PW13/A omitting to covey that the accused belaboured the head of the deceased with a stick, sequels an inference that PW-6, PW-7 and PW-8 even prior to its recovery at the instance of the accused by the police had ingenuously contrived to incriminate the accused with its purported user. Moreover, the factum of non occurrence in the disclosure statement Ex.PW10/A made by the accused to the ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 25 police qua the place of hiding and concealment of the danda by him lends fillip to an inference that danda, Ex.P-9 was recovered even when its recovery at the instance of the accused by the .
Investigating Officer under recovery memo Ex.PW6/A was not preceded by a disclosure statement qua its place of hiding and keeping, concomitantly leading to an apt inference that its recovery stands whittled down as well enfeebled. Given the above inference of false incrimination of the accused in the user of danda by him for belabouring the head of the deceased which sequelled injuries and caused his demise, the efficacy of its recovery at the instance of the accused as well as its user at the instance of the accused stand dwindled. Furthermore, the deposition of PW-6 comprised in his cross-examination underscore the factum of the police having arrived at the site of occurrence on 6.11.2010 and having stayed there along with the accused on 6.11.2010 uptill 7.11.2010. However, the police did not concert to recover at the instance of the accused danda Ex.P-9 on 6.11.2010 even when before PW-6, PW-7 and PW-8 the accused had purportedly made an extra judicial confession qua his having used danda to belabour the head of the deceased ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 26 and his also having divulged to each of them the place of its concealment or hiding. Obviously, then the omission on the part of the police to recover danda Ex.P-9 on 6.11.2010 when .
construed in conjunction with the fact that they had remained at the site of occurrence on 6.11.2010 to 7.11.2010, whereas the recovery of danda was effected under recovery memo Ex.PW6/A on 7.11.2010, renders it to be a wholly contrived machination to falsely implicate the accused. Even the recovery of the dead body of the accused from the place of its concealment and hiding purportedly at the instance of the accused under recovery memo Ex.PW6/B also become suspect besides, vulnerable to skepticism especially in the face of the accused having purportedly made an extra judicial confession qua his guilt before PW-6, PW-7 and PW-8 and his having prior to its recovery shown to the aforesaid prosecution witnesses, the place of its hiding and concealment.
Obviously, when the extra judicial confession of his guilt purportedly made by him before PW-6, PW-7 and PW-8 for the reasons hereinabove is of scant legal worth, besides when the police had remained, at the site of occurrence from 6.11.2010 to 7.11.2010 whereas the recovery of the body of the deceased at ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 27 the instance of the accused was effected on 7.11.2010 under Memo Ex.PW6/B, renders it to be discovered and recovered after an intensive search made by the police in collaboration with PW-
.
6, PW-7 and PW-8 and not at the instance of the accused.
20. The upshot and summom bonum of the aforesaid discussion, is that even the existence of the blood stains on the jacket of the accused opined by the FSL to be carrying the blood of the deceased cannot connect the accused in the murder of the deceased especially when given the fact that the accused remained in the company of the police right from 6.11.2010 to 7.11.2010, obviously then it facilitated the police to daub the jacket of the accused with the blood oozing from the head injury of the deceased, so as to falsely implicate him. The further upshot of the above discussion is that the accused is not to be concluded to have committed the murder of the accused.
21. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has omitted to appraise the entire evidence on record, in, a wholesome and harmonious manner. On the other hand, it appears that by giving a piece meal reading, to the evidence on ::: Downloaded on - 15/04/2017 18:19:58 :::HCHP 28 record, it has also discarded the probative force and relevance of the facets aforesaid, hence, indulged in gross mis-appreciation of evidence sequeling substantial mis-carriage of justice.
.
22. In view of the above, the appeal is allowed and the judgment of the learned trial Court is set aside. Consequently, the accused/appellant is acquitted of the offences for which he stood charged and convicted by the learned trial Court. He be set at liberty forthwith, if not, required in any other offence. Fine amount, if any, deposited by the accused be refunded to him forthwith.
(Rajiv Sharma)
Judge
3rd June, 2015. (Sureshwar Thakur)
(Jai) Judge
::: Downloaded on - 15/04/2017 18:19:58 :::HCHP