Himachal Pradesh High Court
State Of Himachal Pradesh vs Suneel Kumar @ Bobby on 10 January, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 4266 of 2013.
Reserved on : 06.12.2016.
.
Decided on: 10.01.2017.
State of Himachal Pradesh. ....Appellant.
Versus
Suneel Kumar @ Bobby ... Respondent.
Coram
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes rt For the appellant : Mr. Vikram Thakur and Mr. Punit Rajta, Dy. Advocate Generals.
For the respondent : Mr. Ajay Chandel, Advocate.
Ajay Mohan Goel, Judge By way of this appeal, appellant/State has challenged the judgment passed by the Court of learned Additional Sessions Judge(I), Kangra at Dharamshala, District Kangra, in Sessions Trial No. 24/2011, dated 29.06.2013, vide which, learned Trial Court acquitted the present respondent (hereinafter referred to as 'accused') for commission of offences punishable under Section 302 and 201 of Indian Penal Code (in short 'IPC').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 22. The case of the prosecution in brief was that Amar Singh was working as an assistant with painter Roshan Lal .
and they were executing painting work in the house of one Kapoor Chand of village Tiara in the month of May, 2001.
Further as per the prosecution, both of them used to return to their houses together in the evening after the work. On 23.05.2011, Amar Singh (hereinafter referred to as 'deceased') of did not return to his house and thereafter his wife Nirmla Devi (complainant) sent her son Ashwani Kumar to inquire rt about the welfare of her husband Amar Singh from Roshan Lal. Ashwani Kumar telephonically inquired the whereabouts of his father from Roshan Lal who told that both of them had returned back around 5:00/5:15 p.m. from the work but Amar Singh expressed his desire to go via Jungle and therefore they both took their own ways. Complainant Nirmla Devi suspected that her husband might not have slipped in the way and got himself injured, so she accompanied her son and started searching for her husband but when Amar Singh was not traced, she informed her brother-in-law, Kishori Lal, who thereafter alongwith other villagers and family members started searching for Amar Singh, but without any success.
Further as per the prosecution, on next day, at about 4:00 ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 3 a.m. when the search operation began, body of deceased was found lying in the jungle near a cheer tree and there were .
injury marks near the right eye, left ear and other parts of the body. The complainant suspected that her husband had been murdered by some unknown person and a telephonic message was made to Police Post Gaggal at around 6:45 a.m. On this, rapat No. 42 was registered and I.O. Santosh Raj of immediately visited village Tiara and at around 2:40 p.m., I.O.
recorded the statement of complainant Nirmla Devi under rt Section 154 of Cr.P.C, which was sent to Police Station Kangra, on the basis of which, FIR was lodged under Section 302 and 201 of IPC against unknown persons. Further as per the prosecution, body of the deceased was sent for postmortem and after the report of postmortem was received, body was handed over to the family members. This was followed by investigation by the Investigating Officer, who received additional information on 01.06.2011 that accused was the suspected person behind the murder of the husband of the complainant. As per the prosecution, during the course of investigation, Smt. Sonu Bala w/o Sarup Chand made a statement that accused had murdered Amar Singh. Accused was arrested on 03.06.2011. As per prosecution, on ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 4 07.06.2011, during investigation, he made confessional statement with regard to belt (patta)/nawar, which was used .
by him to strangulate the deceased on 05.06.2011 and he also led the police to the place from where he got the said nawar recovered. As per the prosecution, accused also offered to recover his pant and shirt from the place where he had concealed the same after the commission of offence and same of were recovered in the presence of witnesses on 07.06.2011.
3. After the completion of investigation, challan was rt filed in the Court and as a prima-facie case was found against the accused, he was charged for commission of offences punishable under Sections 302 and 201 of IPC, to which he pleaded not guilty and claimed trial.
4. Learned trial Court vide its judgment under challenge acquitted the accused by holding that prosecution had failed to prove that accused in the night hours on 23.05.2011, in Tiara jungle had murdered Amar Singh with nawar patta and thereafter concealed the said nawar patta with the intent to cause the disappearance of evidence so as to shield himself from legal punishment. It was held by the learned trial Court that neither the statement of prosecution witnesses inspired confidence as there were too many ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 5 contradictions, improvements and omissions in the same nor the prosecution was able to complete the chain of links to .
connect the accused with the commission of offence, nor any motive could be proved for the accused to do away with the deceased. The judgment of acquittal so returned by the learned trial Court is under challenge by way of this appeal.
5. We have heard the learned Deputy Advocate of General as well as the learned counsel appearing for the respondent/accused. We have also gone through the records rt of the case as well as the judgment passed by the learned trial Court.
6. Admittedly in the present case, there is no eyewitness and the entire case of the prosecution rests upon the circumstantial evidence. Learned Deputy Advocate General has culled out the following circumstances which as per the prosecution link the accused with the commission of the offence for which he was charged.
1. Last seen together
2. Recovery of dead body
3. Disclosure Statements
4. Postmortem report
5. Motive ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 6
7. The Hon'ble Supreme Court in Vijay Thakur Vs. State of Himachal Pradesh, (2014) 14 Supreme Court Cases .
609 has held on circumstantial evidence:
"18. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses.
of Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the rt culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
19. In Mani v. State of Tamil Nadu, (2008) 1 SCR 228, this Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 7 relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the .
discovery fails, there would be
literally nothing which would
support the prosecution case...."
20. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the of following manner:
"6. It is by now well settled that in rt a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
21. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 8 postulated. Whenever the case is based on circumstantial evidence the following features are required .
to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The circumstances from which the conclusion of guilt is to be drawn of must or should be and not merely 'may be' fully established;
(ii) rt The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
25. With regard to Section 27 of the Act, what is important is discovery of the material ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 9 object at the disclosure of the accused but such disclosure alone would not automatically .
lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object of and its use in the commission of the offence. What is admissible under Section 27 of the Act is rt the information leading discovery and not any opinion formed on it by the prosecution."
It is settled position of law that suspicion, however strong, cannot take the character of proof.
22. We, therefore, have no hesitation in allowing these appeals and setting aside the conviction and sentence of the two appellants under Section 302 read with Section 34 of the Penal Code. We order accordingly. The appellants are directed to be released from jail forthwith, if not required in any other case."
8. Thus, the salient points which have been carved out by the Hon'ble Supreme Court in a case of circumstantial ::: Downloaded on - 15/04/2017 21:53:06 :::HCHP 10 evidence, on the basis of which the guilt of the accused can be brought home are as under:
.
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii)
rt The circumstances should be of a
conclusive nature and tendency;
(iv) They should exclude every possible
hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
9. Keeping in view the law so declared by the Hon'ble Supreme Court, this Court has to satisfy its judicial conscious as to whether by way of circumstantial evidence produced on record by the prosecution, it was able to link the accused with the commission of the offences or not.
::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 1110. We will deal with each of the circumstance independently in order to satisfy ourselves as to whether the .
chain of circumstances as culled out by learned Deputy Advocate General linked the accused with the commission of offence or not, in view of the law laid down by the Hon'ble Supreme Court.
1. Last seen together:
of
11. According to Mr. Thkaur, the factum of accused having been last seen together with the deceased was rt substantiated by the statement of PW5. A perusal of the statement of PW5 Praveen Kumar demonstrates that he stated in the Court that he knew deceased Amar Singh. On 23.05.2011, he had seen Amar Singh working at Kapur Singh's house doing painting work and on the same day, at about 5:15-5:30 p.m., Amar Singh was going through Kuhan (well) path which passes nearby to the house of PW5 and at that time, PW5 and his wife were working in the wheat fields.
This witness further deposed that when he inquired from Amar Singh that why he was going through that path, Amar Singh told him that he was in a hurry, so he was going through that path. He further deposed that when he asked Amar Singh to sit, then again he (Amar Singh) told that he ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 12 was in hurry, and thereafter on 24.05.2011, he came to know that Amar Singh was no more.
.
12. Now it is nowhere stated by PW5 that he had seen accused Suneel Kumar with deceased Amar Singh. Therefore, it cannot be said that prosecution was able to prove this circumstance against the accused that he was last seen with the deceased.
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2. Recovery of dead body:
13. The factum of recovery of dead body as per learned rt Deputy Advocate General stood proved on record by PW1, PW2, PW3, PW16 and PW26. PW1 Nirmla Devi deposed that after her husband went missing on the night of 23.05.2011, she informed her relatives about this fact and search was carried out to find her husband. On the next day, in the morning, at about 5:30 a.m., body of her husband was found in Tipri Jungle near the 'Cheer' tree. PW2 Ashwani Kumar, son of the deceased, has also deposed that after his father went missing on the night of 23.05.2011, search was carried out to find him and on the following morning, his father's dead body was found in Tipri Jungle near the 'Cheer' tree.
PW3 Jaishi Ram, brother of the deceased, has also deposed about the recovery of dead body of the deceased at around ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 13 5:30 a.m. in the morning of 24.05.2011 near a pine tree in Tipri Jungle. PW16 Kishori Lal, brother of the deceased has .
also deposed to this effect. Similarly PW26 Uttam Chand, bother of the deceased has also deposed to this effect. It is evident from the testimony of above stated witnesses that dead body of the deceased was in fact recovered in the morning of 24.05.2011 in Tipri Jungle near a 'Cheer' tree.
of However, relevant aspect of the matter is as to whether prosecution was able to link the accused with the death of rt deceased so as to convict him for the commission of offences for which he was charged with. This aspect of the matter shall be dealt with by us in the subsequent part of the judgment.
3. Disclosure statements:
14 . There are three disclosure statements on record as Ext. PW7/A, PW21/A and Ext. PW23/F. We will deal with all these disclosure statements separately.
Disclosure statement Ext. PW7/A as per prosecution was made by the accused under Section 27 of the Indian Evidence Act in the presence of witnesses Swarup Chand and Kishan Singh to the effect that he could get the place demarcated where he had hidden a plastic 'nawar'.
Kishan Singh who entered the witness box as PW7 deposed ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 14 that on 05.06.2011, accused while in police custody had made a statement that he had hidden a plastic rope in jungle .
and he could get the same recovered. He further deposed that he as well as witness Swarup Chand had signed this statement. He further stated that accused had told that near that place there was one big tree of Safeda and bushes of one small tree of Khajoor. In his cross examination, he deposed of that he was associated in the investigation of the case by the police from 9:00 a.m. to 11:00 a.m. He denied that disclosure rt statement was not recorded in his presence. He further stated that he did not remember as to how many questions were put to accused by the police. He further stated that disclosure statement was recorded in the office of SHO by a Head Constable. Incidentally, this witness at the relevant time was posted as Home Guard in Police Station Kangra. He also stated that he was put on duty near the gate of the police station. Swarup Chand, the other witness to the statement so recorded under Section 27 of the Evidence Act has not been examined by the prosecution.
15. Now, if we peruse disclosure statement Ext.
PW23/F, what has been mentioned therein is that the accused could get the place demarcated where the incident ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 15 had taken place. However, PW7 has not made any mention in his deposition in the Court that accused had made any .
disclosure statement to the effect as is mentioned in Ext.
PW23/F. Similarly, when we refer to Ext. PW21/A, a perusal of this statement demonstrates that vide this disclosure statement, accused had stated in the presence witnesses Uttam Chand and Rumel Singh that he could get the place of demarcated where he had hidden his clothes which he was wearing on the fateful day and he could also get his said rt clothes recovered. As per prosecution, this disclosure statement stands proved by PW21 HHG Rumel Singh and PW26 Uttam Chand. Incidentally, one of the so called two witnesses to this disclosure statement happens to be a Home Guard and other witnesses happens to be the brother of the deceased. PW18 Ashok Kumar in whose presence purportedly the rope with which accused strangulated the deceased was recovered has not supported the case of the prosecution. In fact he has stated in his cross examination by the defence that when he reached the spot, rope/nawar was already in possession of the police. Besides this, a perusal of Ext. P-C, which is report of Forensic Science Laboratory, Himachal Pradesh at Dharamshala pertaining to nawar with which ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 16 allegedly the deceased was killed by the accused, demonstrates that no blood could be detected on Ext. P-1 .
nawar as well as Ext. 2-a, shirt of the deceased. Therefore, in our considered view, even this circumstance was not proved by the prosecution against the accused.
4. Postmortem report:
16. Postmortem report of the deceased is on record as of Ext. PW24/A. This report has been proved by PW24 Dr. S. Chakarvarti. As per postmortem report as well as the rt deposition of PW24 what is evident is this that ligature marks present on the deceased's neck were possible with plastic strip, if it is encircled by someone and it may result in asphyxia and death. However, fact the matter remains that it was the accused who strangulated the deceased and thereby caused his death by asphyxia has not been proved by the prosecution beyond reasonable doubt. Therefore, it cannot be said that postmortem report substantiates or proved the involvement of the accused with the commission of the offences which were alleged against him. Thus, in our considered view, even this circumstance was not proved by the prosecution against the deceased.
5. Motive:
::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 1717. According to learned Deputy Advocate General, accused was having the motive to do away with the deceased .
and the said motive was that deceased had seen the accused and Sonu Bala (daughter-in-law of deceased) in a compromising position and this, as per the prosecution was the motive with the accused to do away with the deceased. As per learned Deputy Advocate General, this circumstance of stood proved against the accused by PW1 Smt. Nirmla Devi wife of the accused and Sonu Bala, daughter in law of the rt deceased. A perusal of the statement of Nirmla Devi demonstrates that in her examination-in-chief, she stated that she had told to the police that 7-8 months before the incident, her husband had gone to jungle for fetching grass for the goats and while returning, he (deceased) saw accused Suneel and Sonu Bala in a compromising position in the bushes. Further as per this witness, her husband asked them as to why they were sitting there and when her husband confronted the accused, he ran away. She further deposed that after 2-3 days when her husband had gone to the market to buy vegetables there accused met him and threatened her husband that in case he (deceased) came in his way, he will finish him. She further deposed that her husband had told ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 18 her that he had seen accused and Sonu Bala in a compromising position and Sonu Bala had in fact pleaded .
that she would not repeat it. She also deposed that on 23.05.2011, her daughter-in-law, Sonu Bala had also gone to jungle for grazing goats and her husband also came from that way and on this count, she suspected that accused Suneel Kumar had killed her husband. In her cross examination, she of admitted that it to be correct that when her statement Ext.
PW1/A was recorded, she told that some unknown person rt had killed her husband. She admitted that her husband had gone to fetch grass for goats from the jungle and that she also not got recorded in her statement that her husband had disclosed to her that he had seen accused and Sonu Bala in a compromising position.
18. Sonu Bala who entered the witness box as PW4 did not support the case of the prosecution. She in fact stated that accused used to call her 'Bhabhi' and he had never shown his willingness to be her friend. She stated in her examination-in-chief that deceased had never found her alongwith accused in compromising position, as was the version of the prosecution. This witness was subjected to lengthy cross examination by learned Public Prosecutor but ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 19 nothing could be elucidated from her to further the case of the prosecution. This witness resiled from her statements .
recorded earlier under Section 161 of Cr.P.C as well as under
Section 164 of Cr.P.C.
19. Thus besides the bald statement of PW1, there is no other material produced on record by the prosecution from which it could be inferred that accused had the motive to do of away with the deceased and the motive was that the accused had been caught by the deceased with Sonu Bala in a rt compromising position. There is not even an iota of evidence on record to prove and substantiate this circumstance against the accused except the bald self serving statement of PW1, which in our considered view does not inspires confidence and does not seems to be trustworthy. Not only this, a perusal of cross examination of this witness demonstrates that her credibility stands impeached by the defence. Therefore, in our considered view, it cannot be said that this circumstance was proved by the prosecution against the accused.
20. It has been held by the Hon'ble Supreme Court in Pankaj Vs. State of Rajasthan in Criminal Appeal No. 2135 of 2009 decided on 9th September, 2016 that it is a well settled principle of law that when the genesis and manner of the ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 20 incident is doubtful, the accused cannot be convicted. The Hon'ble Supreme Court has further held that when the .
evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence and in such circumstances, the appellant is entitled to the benefit of doubt. It has further been held by the Hon'ble Supreme Court that motive is not sine qua non for the of conviction of the accused, however, the effect of not proving motive raises a suspicion in the mind of the Court.
rt
21. In our considered view also, keeping in view the fact that the prosecution has miserably failed to prove that the accused had any motive to do away with the deceased, it seriously raises question mark over the credibility of the case of the prosecution.
22. Therefore, according to us, the chain of circumstances enumerated above by learned Deputy Advocate General does not in any manner forms a complete chain linking the accused with the commission of the alleged offence.
23. Further, a perusal of the judgment passed by learned trial Court also demonstrates that after taking into consideration the entire material produced on record by the prosecution and after discussing the same in detail, learned ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 21 trial Court held that the prosecution was not able to complete chain of circumstantial evidence against the accused nor the .
testimony of the complainant was free from reasonable doubts and the prosecution had not been able to prove its case against the accused beyond reasonable doubts.
24. In view of above discussion, we do not find any infirmity with the judgment which has been passed by the of learned trial Court acquitting the accused of the charges levelled against him. It cannot be said that the judgment rt passed by the learned trial Court is either perverse or that the prosecution had proved its case beyond reasonable doubt against the accused, but learned trial Court erred in acquitting him. According to us, the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the judgment passed by the learned trial Court is upheld and the present appeal is accordingly dismissed being devoid of any merit. Pending miscellaneous application(s), if any also stand disposed of.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge 10th January, 2017.
(narender) ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP 22 .
of rt ::: Downloaded on - 15/04/2017 21:53:07 :::HCHP