Himachal Pradesh High Court
Cr.A. No. 112/2015 vs State Of H.P on 1 October, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 112/2015.
alongwith Cr.A. No. 113/2015 Reserved on: 30.9.2015 Decided on: 1.10.2015 _________________________________________________________
1. Cr.A. No. 112/2015 Ashish Kumar .Appellant of Versus State of H.P. ...Respondent
2. Cr.A. No. 113/2015 Sonu Sharma rt Versus .Appellant State of H.P. ...Respondent _________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes (In both the appeals) For the appellant: Mr. Rajesh Mandhotra, Advocate.
For the Respondent: Mr. Ramesh Thakur, Asstt. A.G. _________________________________________________________ Per Justice Rajiv Sharma, Judge.1
Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 2 Since both these appeals have been directed against a common judgment, the same are being disposed of by this .
common judgment.
2. These appeals are instituted against the judgment dated 22.12.2014 rendered by the Additional Sessions Judge-
I, Solan, District Solan in Sessions trial No. 23-NL/7 of 2012 of whereby the appellants-accused (hereinafter referred to as the "accused" for convenience sake), who were charged with and rt tried for offences punishable under sections 302 and 201 read with section 34 IPC have been convicted and sentenced to rigorous imprisonment for life and to pay a fine of Rs. 5,000/-
under section 302/34 IPC. They were also convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 3,000/- under section 201/34 IPC. In default of payment of fine, they were ordered to undergo simple imprisonment for a period of 5 and 3 months each, respectively. Both the sentences were ordered to run concurrently.
2. Case of the prosecution, in a nutshell, is that on 26.4.2012, telephonic information was given by the Pradhan, Gram Panchayat Sandholi that a dead body of a person was ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 3 lying in the room of irrigation pump house situated behind truck union Baddi. Rapat Ex.PW-20/A was entered.
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Thereafter, SI Karamdeen alongwith other police officials went to the spot. SI Karamdeen found at the spot that dead body was lying in the room of pump house. Post-mortem examination of the dead body was got conducted on the spot.
of Inquest papers Ex.PW-3/D and Ex.PW-20/D were prepared.
Gandasa Ex.P-7 and stone Ex.P-10 were recovered vide memo rt Ex.PW-3/C. Burnt clothes Ex.P-19, pair of shoes Ex.P-20 and pair of partly burnt socks Ex.P-21 were also recovered. On 1.7.2012, file was handed over to PW-25 SI Bharat Bhushan for investigation. He was informed by SHO that one W/T message was received from Police Station, Sarkaghat to the effect that FIR No.44/12 dated 29.2.2012 under sections 457 and 380 IPC was registered. Two accused were in the police custody. W/T message is Ex.PW-18/A. He went to the Police Station, Sarkaghat for investigation. He recorded statements of SI Sanjeev Gautam and Smt. Ram Dei, mother of deceased.
She identified dead body to be of her son, namely, Ashok Kumar. On 5.7.2012, SI Bharat Bhushan recorded the statement of Vinod Gupta at Bilaspur. On 7.7.2012, he got ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 4 the custody of both the accused transferred from FIR Nos.
44/12, 24/12, 36/12 and 76/12 from JMIC, Sarkaghat to FIR .
No.106/12. During interrogation, accused Ashish Kumar and Sonu disclosed that they could demarcate the place where they have murdered Ashok and a place from where Gandasa was taken by them. The place was got identified by the of accused. Gandasa was taken from nearby Dhaba of PW-7 Kashmir Singh. Blood samples of Ram Dei were also taken.
rt During interrogation, accused Sonu disclosed that he took mobile of Ashok after killing him and gave the same to PW-9 Paramjeet and also disclosed that mobile number of Paramjeet was 9816669471. Call details of mobile No. 98166-69471, mobile No. of deceased 88943-25604, mobile No. of accused Sonu 88943-25750 and Mobile No. of accused Ashish 98574- 55911 were obtained from Nodal Officer. The police investigated the case and the challan was put up in the Court after completing all the codal formalities.
3. Prosecution examined as many as 25 witnesses to prove its case against the accused. Statements of accused under Section 313 Cr.P.C. were recorded. They have simplicitor denied the case of prospection. Learned trial Court ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 5 convicted and sentenced the accused as noticed hereinabove.
Hence, this appeal.
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4. Mr. Rajesh Mandhotra, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Ramesh Thakur, Assistant Advocate General of has supported the judgment passed by the trial Court.
6. We have heard the learned counsel for the parties
7. rt and have gone through the record meticulously.
PW-2 Suresh Kumar has deposed that he received a call from police of police station Baddi on 9.7.2012. Accused Ashish led them to irrigation Pump. He identified the spot. He informed the police that he and Sonu administered cannabis to Ashok and they also consumed it. Ashish further told that he strangled Ashok with string and Sonu hit his head with a stone. He further disclosed that thereafter Sonu hit in the stomach of Ashok with Gandasa. Accused Ashish also took them to Bhud. He led to the Dhaba of Kashmir Singh. Kashmir Singh told them that Ashish and Sonu had taken Gandasa from his Dhaba. It was taken on 22.3.2012. Kashmir Singh identified Ashish as one of the persons who had taken ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 6 Gandasa from him. Ashish disclosed that at the time of murder, blood had fallen on his pants and he has kept the .
pants in bushes near Bhud Barrier. Statement was reduced into writing vide Ext. PW-2/D. Accused led him to Bhud barrier. His pants were recovered. In his cross-examination he has stated that that he remained associated in the police of investigation on three different occasions on their asking.
8. PW-3 Hans Raj has deposed that he was member of rt the Gram Panchayat, Sandholi. On 26.4.2012, he had engaged labourers. They noticed foul smell coming from pump house side. He found half burnt dead body in the pump house. Blood stains were found on the wall of the pump house. He called Pradhan, Ramesh and Dharampal. Pradhan informed the police. Police came on the spot. Blood was lifted from the spot.
A stone with blood spots was also found. It was also picked up and put into polythene and wrapped in a parcel sealed with seal 'T' and taken into possession by the police. A Gandasa was also lying by the side of the body. It was also lifted by the police. These were taken into possession vide memo Ext. PW-
3/A and Ext. PW-3/C. ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 7
9. PW-4 Ram Dei is the mother of deceased. She has deposed that deceased was 22 years old. He was a painter. He .
told her that he had met with an accident at Bilaspur with a truck on 2.3.2012. He again told her that he was at Baddi and residing with Ashish and Sonu. He told that his hand has been plastered at Nalagarh. On 22.3.2012, his cell phone was of found switched off. Police came to her and showed video. She identified her son.
10. rt PW-5 Rameswhar Dass is the Pradhan of Gram Panchayat Sandholi. He has deposed that on 26.4.2012, Hans Raj informed him that one dead body was lying in the pump house in village Randewal. He informed the police but did not go to the spot. He was declared hostile and was cross-
examined by the learned Public Prosecutor. He identified his signatures on Ext. PW-3/D. He has denied that he went to the spot and police inspected the site at Pump House in his presence. He has also denied that inquest report was also prepared in his presence. In his cross-examination by the learned defence counsel, he has deposed that he signed the papers in the police station.
::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 811. PW-6 Jaswinder Thakur is the material witness.
According to him, in the first week of February, 2012, he had .
given one room on rent to Ashish and Sonu. The room was given in the old building. On 1st or 2nd March 2012, one another boy named Ashok came and started living with the accused. Right arm of Ashok was fractured. Ashish used to of run Rehri of soup and chicken, whereas Sonu was conductor in some vehicle. On 20/22 March, 2012, Ashish, Sonu and rt Ashok went for a walk in the evening but only Ashish and Sonu returned. Thereafter, he did not see Ashok in that area.
In his cross-examination, he has admitted that he did not see Ashish, Sonu and Ashok together out of that room in between 1/2.3.2012 to 20/22.3.2012. Volunteered that Ashok normally used to remain in the room. He had seen Ashish, Sonu and Ashok going together on that day around 6.30 pm. He came to know in last April that Ashok has been murdered. He came to know this fact when the police visited their old house to inquire into the matter. The police visited only once. Accused Ashish and Sonu were with the police. His statement was recorded on 6.8.2012. He did not disclose the fact that accused and Ashok had gone together in the evening of ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 9 20/22.3.2012 till 6.8.2012 when he made the statement before the police .
10. PW-7 Kashmir Singh ran a Dhaba in the name of Thakur Dhaba at Bhud barrier. Accused used to take meals in his Dhaba. On 20/22.3.2012, Ashish and Sonu visited his Dhaba at about 5/6 pm and took his chopper/ Gandasa.
of Ashish told that he wanted the chopper to cut the meat. He met him 2-3 days thereafter and he asked him about rt Gandasa. Ashish told that he forgot to return the same. He again asked him about the chopper. He told that he has shifted his accommodation and if the chopper was found he would return. In his cross--examination he deposed that police came about a week and a half thereafter alongwith accused. Chopper was not shown to him. He did not see the chopper thereafter. He saw the chopper for the first time in the court. He did not go to the police station. His statement was recorded in the Dhaba.
11. PW-8 Malkiat Singh has deposed that owner had provided him cell phone with SIM number 97365-00312.
Thereafter, he returned the cell phone to his owner after one month. The police took that cell phone from Paramjit.
::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 1012. PW-9 Paramjit has deposed that he had engaged Malkiat Singh as a driver. Accused Sonu had given to him one .
white blue coloured 1110 Nokia cell phone on 27/28.4.2012.
He had given this cell phone to his driver Malkiat Singh.
13. PW-11 Divender Verma, has deposed that he supplied information regarding cell phone numbers 88943- of 25406 and 88943-25750 with effect from 25.2.2012 to 26.4.2012. He has proved Ext. PW-11/B. Similarly, call details rt of cell number 88943-25750 were also supplied. The call details of Cell number 98166-69471 were also supplied. In his cross-examination, he has admitted that unless decoding record is seen, the location of cell phone simply on the basis of ID numbers could not be deciphered. According to him, the computers were in working condition. Necessary certificate Ext. PW-11/E was issued.
14. PW-18 SI Sanjeev Kumar has deposed that he arrested accused Ashish and Sonu on 25.6.2012/ 27.6.2012.
They disclosed during investigation on 30.6.2012 that Ashok was also involved with them in the commission of offence under Section 457 and 380 IPC in FIR No. 44/2012. Accused told them that they have murdered Ashok because he was ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 11 seen by Meera Devi witness in FIR No. 24/2012 while fleeing from the spot. The accused told that Ashish strangled him .
with string and Sonu inflicted injury on his head with stone and thereafter inflicted wound on stomach with Gandasa. In his cross-examination, he has admitted that his statement was recorded by the I.O. but he did not give statement of regarding Meera Devi.
15. PW-19 Dr. Anil Kumar has deposed that duration rt between injury and death could not be ascertained due to highly decomposed state of the body. However, between death and post-mortem it was variable between 30-40 days. The post mortem report is Ext. PW-19/A. The death occurred due to head injury, due to fracture of right parietal bone leading to substantial injury of brain matter. In his cross-examination he has admitted that boulder Ext. P10 must be around 5-6 kg. He has admitted that in case of fracture, weapon leaves its impression on the affected part of the body. He has also admitted that in case, Ext. P10 is struck with force on the skull of a person, then there must be multiple fracture of the skull bone. He has also admitted that it was not possible to ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 12 opine as to whether Gandasa Ext. P7 was used against the accused. Visually there was no blood stain on Ext. P7.
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16. PW-20 Karamdeen has deposed that he went to the spot. Stone Ext. P10 and Gandasa Ext. P7 were also found lying adjacent to the dead body. The inquest papers Ext. PW-
3/D and Ext. PW-20/D were prepared. These were signed by of PW-1 Rameshwar and Hans Raj. Blood was also lifted from the wall. In his cross-examination, he has admitted that he rt had not lifted any finger prints from the articles lying at the spot. The accompanying helper had opened the skull. He has also admitted that after opening the skull the helper had shown it to the doctor.
17. PW-25 Bharat Bhushan has deposed that on 26.4.2012, one dead body was found in the building of lift irrigation Punm Upper Sandholi. He conducted Videography on 1.7.2012 SHO handed over the case file for further investigation to him. He also informed him that one WT message was received from Police Station Sarkaghat to the effect that FIR No. 24/2012 dated 29.2.2012 under Sections 457 and 380 IPC was registered there. Two accused were in the police custody. He recorded the statement of IO, SI ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 13 Sanjeev Gautam, who was investigating FIR No. 24/2012. He also recorded statement of Ram Dei. She identified the dead .
body of her son Ashok on the basis of Videography. The case property was taken into possession. Statements of witnesses were recorded. Call details were also obtained. In his cross-
examination, he has admitted that it was a blind murder. The of motive behind the murder was that both accused and deceased were fast friends and they had committed thefts rt jointly in Sarkaghat area and deceased Ashok was seen by witness in FIR No. 44/2012 dated 29.2.2012 registered under Sections 457 and 380 IPC. Police of Sarkaghat was looking out for him. Deceased used to threat them to implicate them in case he was caught by the police. There was no witness to the effect that deceased used to threat both the accused. Besides this motive, there was no other motive in the present case.
18. Case of the prosecution, precisely, is that Pradhan informed the police about the dead body lying in the pump house. PW-20 Karamdeen visited the spot. Inquest papers Ext.
PW-3/D and PW-20/D were prepared. The post mortem was got conducted on the spot since the body was highly decomposed. Accused were arrested in FIR No. 44/2012 under ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 14 Section 454 and 380 IPC by the police of Sarkaghat. They disclosed to the IO that they have murdered Ashok Kumar.
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The motive of the murder was that Ashok was seen by one of the witnesses Meera in FIR No. 44/2012. Thereafter accused made disclosure statement on the basis of which clothes were taken into possession. According to the post mortem report of conducted by PW-19 Dr. Anil Kumar, deceased died due to head injury.
19. rt The case is entirely based on circumstantial evidence. The motive as per the statement of PW-25 Bharat Bhushan was that the accused and deceased were very close friends. They were involved in various theft cases. Ashok was seen by one of the witnesses Meera in FIR No. 44/2012 dated 29.2.2012. Accused were apprehending that if Ashok was identified they would also be implicated. Thus, they decided to eliminate him. The prosecution has not examined Meera to substantiate that she had seen Ashok fleeing from the spot after committing theft. Meera was most material witness. In case the prosecution does not produce the material witness, it can be presumed that if the witness would have been produced, she would not have supported the case of the ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 15 prosecution. Case of the prosecution is also that accused and deceased were last seen together by PW-6 Jaswinder Singh.
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PW-6 Jaswinder Singh has deposed that accused were his tenants. He has deposed that on 20 or 22 March 2012, Ashish, Sonu and Ashok went for a walk in the evening but only Ashish and Sonu returned. The incident has taken place of on 22.3.2012 but PW-6 was not certain whether he has seen the deceased last time on 20/21 or 22.3.2012. His statement rt was recorded by the police on 6.8.2012. Baddi police was informed by the Sarkaghat police on 1.7.2012. Statements under Section 161 CrPC was not recorded promptly. No reasons have been assigned by PW-25 Bharat Bhushan IO why the statements of PW-6 Jaswinder Thakur was not recorded promptly. PW-6 Jaswinder came to know about the murder of Ashok only in the month of April. He has also admitted that he did not narrate this fact that accused and Ashok had gone together in the evening of 20/22.3.2012 till 6.8.2012. PW-20 Karamdeen was the first man to visit the spot. According to the FIR, he had only seen stone lying near the head of the body. He had not noticed any chopper / Gandasa. Similarly, when application was moved for getting ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 16 post-mortem conducted vide application PW-20/B, there was no reference of Gandasa. Chopper was not mentioned in FIR .
Ext. PW-14/A. In the inquest paper Ext. PW-3/D and PW-
20/D, there is no mention of Gandasa /chopper. In case he has not noticed Gandasa lying on the spot, how the same has been brought in by the prosecution at a later stage has not of been explained.
20. PW-19 Dr. Anil Kumar has not seen any blood on the rt Gandasa. According to PW-18, SI Sanjeev Kumar, who arrested the accused on 25.6.2012/ 27.6.2012, has stated that accused disclosed that they have murdered Ashok Kumar. The accused had told him that they murdered Ashok because he was seen by Meera Devi witness of FIR No. 44/2012 fleeing from the spot. However, in his cross-
examination, he has admitted that when his statement was recorded by the IO, he did not mention about it.
21. The cause of death was head injury due to fracture of right parietal bone leading to substantial injury to brain.
The post mortem was conducted by PW-19, Dr. Anil Kumar. It has come in the statement of PW-20 SI Karamdeen that the accompanying helper had opened the skull and after opening ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 17 the skull, the helper had showed it to the Doctor. The post-
mortem should be carried by the Doctors being highly skilled .
job. PW-7 Kashmir Singh has deposed that accused Ashish had borrowed the chopper/ Gandasa from him on 20/22.3.2012. However, in his cross-examination he has admitted that the chopper was shown when police came to his of Dhaba. He did not see the chopper thereafter. He has seen the chopper for the first time in the Court.
22. rt Now, as far as the call details of mobile numbers are concerned, the same have not been proved in accordance with provisions of Section 65-B of the Indian Evidence Act.
PW-11 Divender Verma has admitted that unless decoding record is seen, location of phone simply on the basis if ID number can not be deciphered.
23. Mr. Ramesh Thakur, learned Assistant Advocate General has relied upon certificate Ext. PW-11/E. It is also not in conformity with Section 65 B of the Indian Evidence Act.
While giving certificate under Sub section 4 of Section 65-B. Identification of the electronic record containing the statement and describing the manner in which it was produced and giving such particulars of any device involved in the ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 18 production of that electronic record as may be appropriate for the purpose of showing that the electronic record was .
produced by a computer is required to be stated. It is also required under sub-section 2 of section 65-B that the information was produced by the computer during the period over which the computer was used regularly to stop or process of information for the purposes of any activities regularly carried on over that period by the person having lawful control over rt the use of the computer. The information contained was derived from such information fed into the computer in the ordinary course of the activities. The computer was operating properly and the information contained in the electronic record reproduces or is derived fed into the computer in the ordinary course of the activities. Certificate Ext. PW-11/E does not conform to the requirement of Section 65-B of the Indian Evidence Act.
24. In order to prove the case based on circumstantial evidence, the prosecution is required to complete the chain and all the circumstances must point exclusively towards the guilt of the accused. In the instant case, the chain is not complete.
::: Downloaded on - 15/04/2017 19:01:57 :::HCHP 1925. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case .
against the accused for offences under sections 302 and 201 read with section 34 IPC, beyond reasonable doubt against the accused.
26. Accordingly, the appeals are allowed. Judgment of of conviction and sentence dated 22.12.2014 rendered by the Additional Sessions Judge-I, Solan, District Solan in Sessions rt trial No. 23-NL/7 of 2012 is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused are in jail, they be released forthwith, if not required in any other case.
27. The Registry is directed to prepare the release warrants of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.
(Justice Rajiv Sharma), Judge.
(Justice Sureshwar Thakur), Judge.
1.10.2015 *awasthi* ::: Downloaded on - 15/04/2017 19:01:57 :::HCHP