Himachal Pradesh High Court
Sahana vs State Of Himchal Pradesh on 29 April, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 420 of 2015 and Cr. Appeal No.387 of 2015 Reserved on: 20.04.2016 Date of judgment: .04.2016 .
Criminal Appeal No. 420 of 2015 _____________________________________________________ Sahana ...... Appellant.
Versus State of Himchal Pradesh ...... Respondent.
of __________________________________________________ Criminal Appeal No. 387 of 2015 _________________________________________________ rt Dharamvir Singh ...... Appellant.
Versus State of Himchal Pradesh ...... Respondent. __________________________________________________ Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia,Judge.
Yes.
1 Whether approved for reporting?
_______________________________________________ For the appellants: Mr. Naveen K. Bhardwaj, Advocate (in Cr. Appeal No. 420 of 2015) and Mr. Rakesh Manta, Advocate (in Cr.Appeal No.387 of 2015).
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 2For the respondent: Mr. Pramod Thakur Addl.
Advocate General with Mr. P.M. Negi, Deputy Advocate General.
.
Chander Bhusan Barowalia, Judge.
The present appeals arise from the judgment of conviction passed by the Court of learned Additional Sessions Judge-I, Solan, District Solan, of H.P., in Sessions Trial No. 03-NL/7 of 2013 dated 25.5.2015/order dated 27.5.2013, convicting and rt sentencing both the accused persons for rigorous imprisonment for life for the commission of offence under Section 302 read with Section 34 of Indian Penal Code alongwith fine of Rs.5000/- (Five Thousand rupees only) each. Further, both the convicts have been sentenced to undergo rigorous imprisonment for a term of 5 years alongwith a fine of Rs.3000/- (Three Thousand rupees only) each under Section 201 read with Section 34 of Indian Penal Code. In default in making payment of fine amount, they shall suffer simple imprisonment for a period of 6 and 3 months respectively under both counts. As both ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 3 the appeals arise from the same judgment, they are taken up together.
2. Brief facts of the prosecution story are that .
challan was presented before the Court below under Sections 302, 201 read with Section 34 of the Indian Penal Code in case FIR No. 207/2012 dated 29.8.2012 of Police Station, Baddi, District Solan, H.P. The prosecution story is that Rukhast was son of Babu of Khan (PW-5). He was married to accused Sahana. After marriage, Rukhsat lived with his father only for six rt months and thereafter, he alongwith his wife Sahana went to his in-laws house. In the year 2012, deceased Rukhsat accompanied by his wife and children shifted to Baddi in connection with some work and started living in slum situated near Baddi Barrier. Rukhsat was working with Brick kiln. Accused Dharamvir used to reside with Rukhsat and Sahana and used to come to in-laws house of Rukhsat. Rukhsat was nephew of Mustkeem. He had asked Rukshat about his relation with accused Dharamvir and he told that Dharamvir was his friend. Accused Sahana and Dharamvir were having illicit relation. As per prosecution story, in ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 4 the year 2012, before the occasion of 'Id', Rukhsat made a call to Mustkeem and told that he would come to home on or around 'Id', but he did not come.
.
After 20 days of 'Id', accused Sahana alongwith her children came to her parental house and Babu and Mustkeem went there and inquired whereabouts of of her husband Rukhsat. She told that Rukhsat had eloped with some girl. She was again asked on the next day, rt but she expressed ignorance of the whereabouts of Rukhsat and stated that she came to her parents' house in unconscious state and she did not know who had brought her. On this, Babu Khan and Mustkeem suspected some foul play. Thereafter, Mustkeem and Babu Khan both went to Police Station, Pak-Bara to lodge missing report of Rukhsat.
They were advised by the police personnel to go to Baddi and, thereafter, they came to Baddi and inquired about Rukhsat. They were told by the people that a dead body was recovered in the area and then they went to the Police Station.
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 53. On 29.8.2012, C. Mohan Lal (PW-12) was on duty at Baddi Barrier and he went to urinate adjacent to the rivulet and noticed something in the .
water with two hands protruding. He had seen dead body from above the bridge and informed the police, on which DDR No. 24, Ex.PY, was entered. SI Karamdeen (PW-19) went to rivulet namely Balad of Khad with other police officials, where a dead body was found, which was tied in a cloth with one hand of dead body protruding out.
rt Dead body was taken out with the help of police officials, Sandeep and Vijay Verma. Dead body was tied in a cloth and it was opened. Dead body was in decomposed state.
Injuries were observed on the face of dead body.
Mouth was found tied with a cloth. Both legs were found tied with a plastic rope. About 40 kg. cemented boulder was found inside the cloth with which the body was wrapped.
4. SI Karamdeen prepared Ruka, Ext. PW-
19/A, and sent to Police Station for registration of FIR, on which, Inspector Prem Lal (PW-20) recorded ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 6 FIR, Ex.PX. SI Karamdeen prepared spot map, Ext.
PW-19/B of the place of recovery of dead body and cemented boulder, Ex.P1, was taken into .
possession vide memo, Ex.PW-6/A. PSI Bharat Bhushan (PW-21) took photographs, Ex. PW-
19/A1, to Ex. PW-19/A9. Videography was done and CD, Ex. PW-21/A, was prepared. SI of Karamdeen prepared inquest papers, Ex. PW-6/B and Ex. PW-6/C and dead body was sent to FRU Nalagarh for conducting postmortem examination.
rt Dr. Sanjay Vishwas (PW-10) along with Dr. Arun Kumar and Dr. Gagan conducted postmortem of dead body and prepared postmortem report, Ext.
PW10/B, which had also been signed by them.
5. On 09.10.2012, Babu Khan and Mustkeem identified dead body on the basis of photographs, Ex.
PW-19/A1 to Ex.PW-19/A9. Regarding this, identification memo, Ext.PW-5/A was prepared.
Blood sample of Babu Khan was taken vide identification form, Ex. PW-5/B. On 10.10.2012, SI Bharat Bhushan (PW-21) went to slum area where ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 7 accused were found and they were interrogated and thereafter were arrested. On 16.10.2012, accused were taken to ESI hospital Katha for taking blood .
sample for the purpose of DNA profiling. Dr. Sunita Gupta (PW-8) took blood sample of accused Dharamvir and Sahana on identification forms Ex.PW-8/A and Ex.PW-8/B respectively. Blood of samples were handed over to SI Bharat Bhushan, who deposited the same with MHC.
6. rtDuring investigation, it was revealed that both accused were having illicit relation with each other and deceased Rukhsat had come to know about their illicit relation, when he was sleeping on a cot in the state of intoxication, he was strangulated to death by both accused in the intervening night of 23/24.8.2012 and thereafter, dead body was tied with a cemented boulder and thrown in Balad rivulet.
Both accused made disclosure statement, Ex. PW-
7/A, while in custody and led the police party to the spot of occurrence and regarding this memo Ex.PW-
7/B, was prepared. Spot map, Ex.PW-22/A, was ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 8 prepared by SI Krishan Dutt. Both accused have also disclosed to the police that at the place of occurrence some pieces of cemented boulder were lying and big .
cemented boulder was taken. Police took one piece of cemented boulder, Ex.P3, weighing about two and half kg. from the spot and parceled by putting seal 'V' and taken into possession vide memo, Ex.PW-17/B. of Photographs Ex.PW-17/C1 to Ex.PW-17/C9, were taken. Videography was done and CD Ex. PW-22/D was prepared.
rt On 13.10.2012, cemented boulder earlier taken from the spot of occurrence, was also shown to the accused and got identified from accused Dharamvir. Then boulder was broken into 3 pieces, one piece weighing about 2 kg. was wrapped in a cloth parcel by putting seal 'A' and remaining pieces were taken in a plastic sack vide memo, Ex.PW-17/E. Small cemented boulder is Ext.P9.
7. On 4.12.2012, HC Ram Nath (PW-1) went to village Rattu, District Amroha to collect blood sample of Nisha, daughter of accused Sahana. Blood sample was taken by Dr. Charan Singh for DNA ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 9 profiling on FTA card. H.C. Mohan Lal (PW-2) was MHC Police Station, Baddi. On 29.8.2012, SI Karamdeen deposited with him cemented boulder .
weighing 40-45 Kg. and he made entry in Malkhana register. On 8.9.2012, HHC Ram Rattan had deposited with him three sealed parcels having seal impression 'CH NLG' alongwith specimen impression thereof, as of well as two envelopes addressed to Director, FSL Junga and Director FSL (FPB) Bharari and made entry in register, extract of which is Ex. PW-2/B. On rt 9.10.2012, PSI Bharat Bhushan deposited with him sealed envelope having seal impression 'E' with specimen seal impression and in this behalf, he also made entry in the relevant register. On 12.10.2012, SI Kshama Dutt deposited with him one sealed parcel having seal impression 'V' alongwith specimen seal and on the next day he also deposited with him a cemented boulder of about 40-45 Kg. He also made entry of the same in the malkhana register. On 16.10.2012, PSI Bharat Bhushan handed over to him two sealed envelopes having seal impression 'SLT' ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 10 alongwith specimen seal impression, which he deposited in the Malkhana. On 12.12.2012, SI Kshama Dutt handed over to him two sealed .
envelopes having seal impression 'J.P. Nagar' alongwith specimen seal and he made entry of the same in the relevant register. On different dates, he sent the sealed case property and other articles to of FSL, Junga vide different RCs and FSL reports Ex.PX1 to Ex.PX3 and result of FSL report Ex.PW-23/A are also obtained as per which, the exhibits were rt examined physically, chemically and by using X-Ray Fluorescence spectroscopy in the laboratory and it was found that the concrete in exhibit E/1, is similar to the concrete in exhibit E/2.
8. Prosecution in order to prove the guilt of the accused, examined 24 witnesses. PW-1 HC Ram Nath of Police Station, Barotiwala has stated that he took the blood sample of the daughter of the accused through Dr. Charan Singh, Medical Officer, posted in the hospital at Amroha, UP. PW-2 HC Mohan Lal is the MHC, who received the case property on ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 11 29.8.2012, he received cemented boulder, 40-45 Kg.
from SI Karamdeen. On 8.9.2012, HHC Ram Rattan No.733 deposited with him sealed parcel, having seal .
impression 'CH NLG' alongwith specimen seal impression alongwith two envelopes addressed to Director FSL, Junga and FBP Bharari. On 9.10.2012 PSI Bharat Bhushan deposited with him a sealed of envelope having seal impression 'E' alongwith specimen seal impression. On 12.10.2012, SI Kshama Dutt handed over to him one sealed parcel having seal rt impression 'V' alongwith specimen seal impression thereof. On 16.10.2012, PSI Bharat Bhushan handed over to him two sealed envelopes having seal impression 'SLT' alongwith specimen seal impression.
On 12.12.2012, SI Kshama Dutt handed over to him two sealed envelopes having seal impression 'JP Nagar' alongwith specimen seal. On 24.9.2012, he handed over one sealed parcel, a sealed envelope and separate seal impression to C. Rohit Kumar for depositing the same in FSL, Junga. On 13.9.2013, he handed the articles mentioned in RC, Ex.PW-2/H to ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 12 HHC Ram Rattan for depositing them in FPB, Bharari.
On 16.10.2012, he handed over articles specifically mentioned in RC No. 113/12-13, Ex.PW-2/J to C. .
Vinod Kumar for depositing them in FSL, Junga. On 17.12.2012, vide RC No. 156/12-13, Ex.PW-2/K. He handed over the articles detailed in this exhibit to C. Naval Kumar for depositing them in FSL Junga on of 23.10.2012 vide RC No. 137/12-13, copy of which is Ex.PW-2/L. He handed-over articles to LC Leela for depositing them in FSL, Junga. On 17.12.2012, vide rt RC No., 156/12-13, Ex.PW-2/M. He handed over the articles mentioned therein to C. Naval Kumar for depositing them in FSL, Junga. He also recorded FIR, Ex.PX on receipt of Ruka Mark A.
9. PW-3 ASI Raghubir Singh, I.O., Police Station, Barotiwala, recovered the dead body in decomposed state alongwith cemented boulder tied to the dead body. As per him, the photographs of the dead body were taken. Inquest report was prepared by SI and body was sent for post-mortem as no one came forward to claim the body. The body was handed over ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 13 to Municipal Committee, Nalagarh for consigning to flames after obtaining necessary permission from SDM, Nalagarh. In cross-examination, he has denied .
that he has not accompanied the dead body to hospital. PW-4 is Mustkeem, Uncle of the deceased.
He deposed that accused Sahana was married to Rukhsat about 12-13 years ago and four children of were born to them. After two years of their marriage, Rukhsat shifted to his in-laws house. Deceased Rukhsat used to work in a Brick Kiln and in the year, rt 2012, deceased shifted to Baddi in connection with his work and started residing in slum situated near Baddi barrier. As per this witness, accused Dharamvir used to reside with the deceased and his wife.
Accused Dharamvir also used to visit the house of the deceased whenever Rukhsat came to his in-laws house. On inquiry, Rukshat informed PW-4 that the accused Dharamvir was his friend. Rukhsat was to go to his home in the year, 2012 on 'Id' festival and he informed PW-4 on telephone about this, but he did not go. As per this witness, about 20 days thereafter, ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 14 accused Sahana accompanied by children came to her parental house and when she was inquired of the whereabouts of the deceased, she narrated that .
deceased has eloped with some girl. Next day, she again stated that she does not know about her husband, as she has come to parental house in unconscious state and that she did not know as to of who had brought her from there. Thereafter, PW-4 alongwith his brother-in-law went to Police Station and they were advised to go to Baddi. Then PW-4 rt alongwith his brother-in-law came to Baddi. They identified the photographs of the dead body and after taking the blood sample of his brother-in-law, identity of the deceased was established. In cross-
examination, he has denied the fact that deceased was addicted to alcohol and other intoxicants and that on that account, he had become very weak. He has also denied the fact that Sahana had made a telephonic call from Baddi to PW-4 and had conveyed that Rukhsat had eloped with some woman and he has also denied that he told this fact to the Himachal ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 15 Pradesh Police. To this, he was confronted with his statement Mark D-1, wherein it was so recorded in portion A to A. In cross-examination, he deposed .
that deceased made a telephonic call and had told his plan to visit his house and he informed the police about this. To this, he was confronted with his statement Mark D-1 wherein it is not so recorded.
of
10. PW-5 Babu Khan is the father of the deceased. He has stated that accused Dharamvir used to reside with his son Rukhsat and accused Sahana.
rt He has stated that subsequently, it transpired that accused Dharamvir was having immoral relations with Sahana. He has stated that he has come to Baddi and there he went to Police Station as advised by the Police Station Pak-Bara and after seeing the photographs of the dead body of his son, he identified the same to be of his son and memo, Ex.PW-5/A, was prepared and it was thumb marked by him and on the basis of suspicion, he expressed his apprehension regarding the involvement of both the accused in the death of his son. In cross-examination, he has stated ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 16 that no person from his village used to reside in that slum area. He further stated that accused Dharamvir has also worked in Brick Kiln at Pak Bara. He has .
stated that he does not know that his brother-in-law, PW-4, was informed by accused Sahana that her husband has eloped with some woman, neither he told this fact to the police. He was confronted with his of statement Mark D-2, wherein it was so recorded in portion A to A. He admitted that after receiving telephonic information as recorded in portion A to A, rt he accompanied by his brother-in-law, had gone to the parental house of the accused Sahana and some other persons had also accompanied them. Here he admitted that his son was addicted to taking drugs for the last two years. He denied that his son has become weak due to drug consumption. He has stated that the application, which was to be presented at Police Station, Pak Bara, had subsequently been given to the Police Station, Baddi.
11. Appreciating the evidence of PW-4 and PW-
5, it is clear that PW-4 has stated that the application, ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 17 which was to be given to Police Station, Pak-Bara was torned off. PW-5 has stated that it was given to Police Station Baddi. PW-4 has deposed that the deceased .
was not habitual of taking drugs, but PW-5 has admitted this fact. But both the witnesses have stated that deceased had not gone weak.
12. PW-6 is Vijay Verma, who was posted as of Clerk in RTO, Baddi. He was associated by the Investigating Officer when an unknown dead body was recovered from the rivulet situated adjacent to the rt aforementioned barrier. It was wrapped with a cloth and boulder of cement. The boulder of cement was approximately 35-40 Kg. The dead body was taken into possession in his presence. In cross-examination, he had admitted that many persons had gathered there on the spot and it was lunch time and it is a busy road. Mining of sand used to be done around the place of recovery of dead body. It was rainy season and flood also used to come during rainy season. He has stated that it took 1 to 2 hours to complete the process. From the statement of this witness, it is ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 18 clear that the place from where the dead body was recovered is near to RTO Barrier. PW-7 is Mandeep Singh, he is the owner of Dhaba and he is the person .
in whose presence accused made disclosure statement. He has stated that river is adjacent to the barrier and the police has taken into possession the cemented boulder in his presence. In of cross-examination, he admitted that police used to remain on duty round the clock on the barrier. He has stated that he remained with the police only for rt about 4-5 minutes. He has admitted that in the rainy season, water in the river used to exceed. He admitted that Shanties were adjacent to the aforesaid rivulet.
13. PW-8 Dr. is Sunita Gupta, who has taken the blood sample of the accused Dharamvir and Sahana. PW-9 Dr. Charan Singh, has taken the blood sample of Nisha, daughter of deceased Rukhsat, for DNA profiling. PW-10 is Dr. Sanjay Vishwas, Medical Officer, FRU, Nalagarh, who conducted post-
mortem on the body of the deceased and stated that body was fully decomposed externally with de-gloving ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 19 of the skin of the both hands, eyes and tongue protruded out. He has stated that no external visible .
ligature marks or any injury was seen probably due to decomposition of the body. The fracture of hyoid bone was present. There was no evidence of head injury.
The cause of death was asphyxia, most probably due of to strangulation but not due to drowning. The probable time between injury and death must be immediate or within few minutes and between death rt and postmortem 5 to 7 days. In cross-examination, he deposed that fracture to hyoid bone by way of fall could not be ruled out. The possibility of the aforementioned injury, however, is not possible, in case, a dead body thrown into flowing water, strikes against some hard surface. Again stated that in the aforementioned circumstances too, the aforesaid injury is possible. He could not opine whether Hyoid bone fracture was ante-mortem or post-mortem. He has stated that it is not possible to opine as to whether the strangulation was suicidal or accidental.
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 2014. PW-11 is Dilshad son of Babu Khan, the younger brother of the deceased. He has stated that accused Sahana had taken his brother initially to her .
parental house and, thereafter, to Baddi. She alongwith accused Dharamvir strangulated his brother while deceased was sleeping and after his death all his children are now brought up by him.
of The police has taken blood sample of Shivani, one of the children of the deceased. PW-12, C. Mohan Lal, is the person, who has seen the body while performing rt his duty at Baddi barrier. At about 8.30 AM, he went to urinate down out adjacent to the rivulet. In cross-
examination, he has stated that the rope like object with which body was tied was visible from the bridge.
PWs 13, 14, 15 and 16 are formal witnesses.
15. PW-17 PSI Manoj Kumar has stated that accused Dharamvir made disclosure statement in his presence and Mandeep Singh that he could get recovered the piece of cemented boulder a part whereof the dead body of the deceased had been tied with. The aforesaid statement was reduced into ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 21 writing and the same was thumb marked by the accused Dharamvir and attested by him and .
Mandeep, which is Ex.PW7/A. Thereafter, both the accused took them to Baddi barrier near Sun-City Road and pointed out a slum in the courtyard whereof, they had strangulated Rukhsat and accused of Dharamvir pointed out pieces of cemented boulders out of which they had picked up one boulder and had tied the dead body. One of those pieces was taken into rt possession. In cross-examination, he has stated that accused Dharamvir had made this disclosure statement at about 10 AM. Accused Dharamvir has made disclosure statement after about one hour of his interrogation. He could not say what the accused had told during that one hour prior to his making disclosure statement. He has stated that Mandeep was also called by the Investigating Officer at about 9 AM. He has stated that there were about 20 to 25 Shanties and these Shanties were inhabited by migrant labourers.
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 2216. PW-18 is LC Leela Devi, No.220, SIU, Baddi. She is also a formal witness, as she has taken two sealed envelopes containing FTA Cards for .
depositing them in FSL, Junga. PW-19 Karamdeen is a retired Sub-Inspector, who was posted as S.I. in Police Station Baddi. He has stated that a dead body of some unknown person was found in the rivulet, tied of in a cloth with one hand of the dead body protruding out. The dead body was taken out with the help of police officials and Sandeep Kumar and Vijay Verma.
rt The dead body was in decomposed state. Injuries were also observed on the face of the dead body.
Mouth was found tied with a cloth and both the legs were found to be tied with rope. About 40 Kg.
cemented boulder was found inside the cloth with which the dead body had been wrapped. It appeared that deceased had been done to death at some different place and thereafter the body had been shifted to the rivulet with a view to conceal the offence. He has taken into possession the cemented boulder. Photography was got done. Inquest papers ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 23 Ex.PW-6/B and Ex.PW-6/C were prepared and body was sent to FRU, Nalagarh for examination alongwith docket, Ex.PW-10/A. He has stated that at the time .
when he reached the spot, 20 to 25 persons had gathered on the spot, but none of them was associated in the investigation as they were outsiders. He also admitted that floods also used to occur in the of aforementioned rivulet.
17. PW-20 is Inspector Prem Lal of Police Station State Vigilance and Ant-Corruption Bureau, rt Shimla. He recorded FIR, Ex.PX, on the basis of Ruka Ex.PW-19/A sent by SI Karamdeen. PW-21 is SI Bharat Bhushan, who was posted as PSI in Police Station, Baddi and he has taken photographs and did videography of the place near Excise Barrier, Baddi. In cross-examination, he has stated that he was subsequently called by the Investigating Officer and 2- 3 hours took to complete the proceedings at the spot.
PW-22 is SI Kshama Dutt. She has stated that dead body was identified by PW Bharat Bhushan at the behest of Babu Khan and Mustkeem. On 9.10.2012, ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 24 accused were arrested by PW Bharat Bhushan. Both of them disclosed they were having illicit relations and that the deceased Rukhsat had come to know about .
their relations and when he was sleeping on a cot in the state of intoxication, they strangulated him to death. As per him, on 12.12.2012, both the accused while in custody, in the presence of PSI Mandeep, of made a disclosure statement that they could identify the place in their shanty where they had strangulated the deceased. He has supported the investigation done rt by the police. In cross-examination, he could not say what the age of elder child of accused Sahana is. Self stated that on the relevant night, children were with accused Sahana. He could not say that the son of the deceased was 12 years of age at the relevant time. He has stated that he has not cited the children as witnesses. PW-23 Naseeb Singh Patial has proved on record that concrete, which was tied with the rope and recovered from the spot was the same. PW-24 C. Rohit Kumar has taken a plastic Jar from CH, Nalagarh to FSL, Junga alongwith sample seal.
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 2518. Now, this evidence has to be considered in the light of the law settled till date. Hon'ble Supreme Court in a case titled Vijay Shankar versus State of .
Haryana, (2015) 12 Supreme Court Cases 644, decided on August 4, 2015, has held as under:
"[8] There is no eye-witness to the occurrence and the entire case is based upon of circumstantial evidence. The normal principle is that in a case based on circumstantial evidence rt is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 26 incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their .
innocence vide Sharad Birdhichand Sarda v. State of Maharashtra, 1984 4 SCC 116.
The same view was reiterated in Bablu Alias Mubarik Hussain v.
State of Rajasthan, 2007 2
of
SCC(Cri) 590."
19. In the present case, the prosecution rt story is based upon recovery of the body alongwith cemented boulder and the matching of the cemented boulder with the piece of the concrete taken from the spot, the illicit relationship of the accused with each other and the matching of the DNA of the baby child with that of accused Dharamvir Singh stated to be the biological father of the baby, meaning thereby that both the accused were having illicit relations. This fact is also proved in the DNA analysis showing that the accused were having illicit relations as the DNA of the baby matches with that of Shri Dharamvir Singh making ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 27 himself biological father of the child proving the illicit relations inter se the accused persons.
20. The recovery of 40kg. of cemented .
boulder wrapped in a sheet (Chaddar). The piece of this boulder matches with the cemented piece recovered from the spot.
21. The motive, as per the prosecution, is of that the accused wanted to eliminate the deceased because they were have inter-se illicit relations and as the deceased might have seen the accused in rt compromising position.
22. From the evidence on record, it is clear that accused Dharamvir was residing with the deceased and the accused Sahana for the last many years and they were living together happily. This is stated by the witnesses in clear terms. Meaning thereby that both the accused were living together alongwith the deceased earlier at District Amroha and then at Baddi. It has also come on record that the deceased was drug addict. However, the father of the deceased has stated that he was drug addict ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 28 for the last two years. The prosecution has failed to prove the fact that the death has occurred due to strangulation conclusively as the ligature marks on .
the neck were not found as per the statement of the Investigating Officer.
23. The prosecution has failed to prove conclusively whether the strangulation was made of as no thumb, finger or nail impression was picked up from the neck or other ligature like scarf, dupatta or soft material was used, as nothing was rt lifted from the neck. There is no scientific evidence to prove strangulation/throttling on record except the statement of PW-10 Dr. Sanjay Vishwas, who has stated that no external visible ligature marks or any injury was seen probably due to decomposition of the body. He has opined that death was caused due to asphyxia, most probably due to strangulation, but not due to drowning. In cross-
examination, he has stated that the opinion is based on the fact that there was fracture on hyoid bone. He further stated that the fracture of hyoid ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 29 bone by way of fall could not be ruled out. He has further stated that it was not possible to opine whether it was suicidal or accidental. So, even the .
expert could not say with conclusive certainty whether the death was caused by strangulation.
This is a suspicious circumstance.
24. Now, in these circumstance, it cannot be of safely held that the accused caused the death by way of strangulation, as other evidence, which has come on record in the shape of recovery of the piece rt of concrete at the instance of the accused which matched with the concrete tied with the body. As per FSL report, the piece of the concrete, which was recovered on the spot at the instance of the accused matched with the concrete which was tied with the body. However, the prosecution has to connect the fact that how body, which was wrapped with cemented boulder weighing 40-45kg. in a sheet (Chaddar) was taken up to the rivulet. It has come on record that near the rivulet, there is a Toll Barrier where 24 hours, the Clerk and the Police ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 30 officials remain on duty. It is strange that if it has so happened, no one has seen the accused carrying the body alongwith 40-45 Kg. stone for submerging .
in the rivulet. This makes the story of prosecution suspicious.
25. It has also come on record that the Shanties were adjacent to the aforesaid rivulet and of the accused were living with children.
26. The prosecution has also not associated any children of the deceased and accused Sahana rt in this case, though it has come on record that the children were there. The prosecution has failed to prove that why the children were not associated when they were supposed to be present at the time of alleged incident.
27. It has also come on record that during the rainy season, there was flood in the rivulet and it was rainy season and the prosecution has failed to prove the result of the flood in the rivulet on the dead body and nothing has come in the prosecution story in this respect.::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 31
28. The other occupants of the shanties were also not associated by the police, who could have been the best person(s) with respect to the fact .
that what has happened in the adjoining vicinity, as alleged by the prosecution. The carrying of 45 kg cemented boulder alongwith dead body definitely would have been noticed by any person in the of connecting vicinity, if this had happened.
29. The only circumstantial evidence which is against the accused persons is that they were rt allegedly having illicit relationship, as the baby was born, of whom the accused Dharamvir was biological father. Now the illicit relation could not be the reason to conclude that the accused persons have killed the deceased and put him in the rivulet, as the circumstances taken commutatively do not form a chain to complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and they should be incapable of explanation of any other hypothesis other than that ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 32 the guilt of the accused and inconsistent with their innocence.
30. Now coming to the fact whether this can .
be a motive to eliminate the deceased, has to be taken into consideration in the light of the fact that the accused and deceased were living together for the last 2-3 years and this fact was known to of the father and maternal uncle of the deceased also.
In fact, this was known to the deceased that the accused is living with him and his wife however, rt accused Dharamvir was living with family in the same Juggi and it has also come on record that he was the biological father of the daughter. This shows that there cannot be a motive to eliminate the deceased, as the circumstances show that the accused Dharamvir and accused Sahana were living happily together for the last 2-3 years earlier at Uttar Pradesh and then at Baddi.
31. Their Lordships of Hon'ble Supreme Court in a case titled Dandu Jaggaraju vs. State of Andhra Pradesh, (2011) 14 Supreme Court Cases ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 33 674, have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the .
prosecution. Their Lordships have held as under:
"9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the of deceased had been made and a report to that effect had been lodged by the complainant.
There is, however, no
documentary evidence to that
rt
effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story."
32. Their Lordships of Hon'ble Supreme Court in Pudha Raja and another vs. State, represented by Inspector of Police, (2012) 11 Supreme Court Cases 196 have held that the ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 34 motive assumes great significance and importance in case of circumstantial evidence and absence of motive puts court on its guard and causes it to scrutinize each piece of evidence very closely in .
order to ensure that suspicion, emotion or conjecture cannot take the place of proof. Their Lordships have held as under:
16. Furthermore, in such a case, motive assumes great significance and importance, as the absence of motive puts the of court on its guard and causes it to scrutinize each piece of evidence very closely in order to rt ensure that suspicion, emotion or conjecture do not take the place of proof. The evidence regarding existence of motive which operates in the minds of assailants is very often, not known to any other person. The motive may not even be known, under certain circumstances, to the victim of the crime. It may be known only to the accused and to none other. It is therefore, only the perpetrator of the crime alone, who knows as to what circumstances prompted him to adopt a certain course of action, leading to the commission of the crime."
33. Their Lordships of Hon'ble Supreme Court in Rishi Pal vs. State of Uttarakhand, (2013) ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 35 12 Supreme Court Cases 551 have held that while motive does not have a major role to play in cases based on eye witness account of incident, it .
assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have further held that essence of requirements that must be satisfied in cases resting on circumstantial of evidence is that not only should circumstances sought to be proved against the accused be established beyond reasonable doubt, but also that rt such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged.
Their Lordships have held as under:
"14. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 36 State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant -Dr. Mohd. Alam had given to him. That argument has .
not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as of though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to rt succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 37 major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra .
(2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v.
State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152].
Absence of strong motive in the present case, therefore, is something that cannot be lightly of brushed aside.
19. It is true that the tell-tale circumstances proved on the basis of the evidence on record rt give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 38 the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be .
proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The of disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution rt only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."
Consequently, in view of the analysis and discussion as has been made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt that the accused has committed murder of deceased Munish Kumar. The circumstances noticed by us hereinabove creates doubt in the version of the prosecution story.
::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 3934. Applying the above law to the facts of the present case, this Court comes to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently, .
both the appeals are allowed. Judgment/ order of conviction and sentence dated 25.05.2015/ 27.5.2015, rendered in Sessions Trial No.03-NL/7 of 2013, passed by learned Additional Sessions Judge-I, of Solan is set aside. Accused are acquitted of the charge framed against them by giving them benefit of rt doubt. Since the accused are in jail, they be released forthwith, if not required in any other case. Fine amount, if any, deposited by them, be refunded to them.
35. 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.
(Rajiv Sharma) ,Judge (Chander Bhusan Barowalia), Judge 29th April, 2016 (m.gandhi/ r.atal) ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 40 .
of rt ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 41 .
of rt ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP 42 .
of rt ::: Downloaded on - 15/04/2017 20:12:46 :::HCHP