Himachal Pradesh High Court
Rajdev Alias Raju & Anr vs State Of H.P on 30 May, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 288 of 2015 Reserved on: 18.05.2016 .
Date of judgment:30.05.2016 _____________________________________________________ Rajdev alias Raju & Anr. ...... Appellant.
Versus
State of H.P. ...... Respondent.
of
__________________________________________________ Coram:
rt The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia,Judge.
1 Whether approved for reporting? Yes.
_______________________________________________ For the appellants: Mr. Chander Shekhar Sharma, Advocate.
For the respondent: Mr. M.A. Khan, Additional Advocate General.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellants against the judgment of conviction dated 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 212.3.2015, passed by the learned Additional Sessions Judge-I, Solan, District Solan, H.P., in Sessions Trial No.01-NL/7 of 2012, whereby the appellants have been .
convicted for offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, in FIR No.64/2011, dated 27.3.2011 registered at Police Station, Nalagarh, District Solan, H.P. sentencing them to undergo of rigorous imprisonment for life and to pay a fine of Rs.5,000/- each for the commission of the said offence.
Further, rtthe appellants shall also suffer rigorous imprisonment for a term of 5 years along with a fine of Rs.3,000/- each for the offence punishable under Section 201/34 IPC and in default of fine, to further undergo simple imprisonment for a period of six and three months each respectively, under both counts. The sentences were ordered to run concurrently.
2. Briefly stating the facts giving rise to the present appeal as per the prosecution story are that Ajmate PW1, on 23.3.2011, had gone to collect grass from the jungle and at a place known as Gol Tibbi, she noticed dead body of a lady, which was lying below the path near Hunuman Mandir and she informed Deesh Mohammad, who went to ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 3 Shiv Ram PW2 and told him about this fact and PW2 thereafter informed Dhani Ram PW3, who was Pradhan of Gram Panchayat, Kirpalpur. PW3 informed S.I. Jagpal .
Singh PW24, whereupon Rapat Ext.PW22/A was recorded.
PW24 went to the spot alongwith other police officials and on the way, PW 3 and Inderjeet joined him. They also went to the spot with police officials. S.I. Jagpal Singh took of photographs Ext.PW24/A1 to Ext.PW24/A8 at the spot of dead body and prepared inquest papers Ext. PW3/D and Ext. PW/E. He prepared spot map Ext.PW24/B. One cell rt phone of Lava/KKTII Ext. P4 and hair clip Ext. P3, were found lying nearby the dead body and were taken into possession vide memo Ext.PW3/J. One chapple of a child, mark Relaxo, was also found at a distance of 30 feet from the dead body and was taken into possession vide memo Ex.PW-3/A. Dr. Rajinder Kumar (PW-19) along with Dr. Gagan Jain and Dr. Jyotsna conducted autopsy of unidentified female body on 24.03.2011 and observed as under:
External Appearance :- Young female aged 20-30 years, dark coloured, 5' 2" long, body swollen mainly face, tongue protruded out and numerous blisters on body, few spontaneously ruptured and smell of ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 4 decomposition present. Maggots seen in the scalp area.
Wearing red coloured salwar and shirt and Chunni, nose pin in the nostril, bangles on both .
wrists, pyal in the legs, earrings, bead pearl necklace natural mole in the neck, her clothes including inner clothes like bra etc. were intact. Colour of the skin green scattered all over the body.
Two abrasions on left upper limb near elbow, softness in the scalp with crepuscular on the top of of head near junction of frontal and per-ital bones.
Cranium and Spinal Cord Examination:-
rt No evidence of external injury on scalp on careful examination palpation and creptus and fluid collection between scalp and bones at the junction of frontal and parietal bone.
There was fracture of parietal bone. Further examination revealed laceration of brain matter below fracture site.
THORAX:- There was fracture of 2nd and 3rd rib on left side anterior side below clavicle with blood accumulated in pectoral muscles.
PLEURAE: Torn under fractured bones.
Other parts of thorax and abdomen were normal. Genital organs were also normal. Cause of death was head injury and injury to cerebrum. The time between the injury and death was immediate and between death and post-mortem 18 to 36 years.::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 5
Viscera was taken for chemical examination.
Bone piece, skin piece and hair taken for DNA examination.
The clothes of dead body; salwar (Ext.P-11), shirt (Ext.P-
.
12), Chunni (Ext.P-13), dupatta (Ext.P-14), bra (Ext.P-15), pair of chapple (Ex.P-16) and wearing apparels like bracelet, broken bangles, necklace, payal, ear rings, nose pin (Ext. P-17) were taken out by doctors and sealed in a of parcel and given to police. Autopsy report, Ex.P-19/A was issued. It was opined that head injury was sufficient in the rt ordinary course of things to cause death.
3. The recovered cell phone was without SIM, but having memory card and from its IMEI number, mobile company was contacted and it was found of Idea Company.
Further, service provider company found that SIMs bearing Nos.98825-24843, 98827-61149, 98825-01236 and 98825-22843 were found used from this mobile telephone. Police succeeded in contacting two numbers i.e. 98925-01236 and 98825-22843. First SIM number was attended by Krishan Kumar and second was attended by Pawan Kumar. They were working with M/s Hem Kund Pvt.
Ltd., Barotiwala. Further, Madho Ram (PW-5) and Balwant ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 6 (PW-6) were also contacted. It was revealed that accused Rajdev @ Raj was working with M/s Hem Kund Pvt. Ltd.
Barotiwala, as crane operator and PW-5 and PW-6 were .
also working in the said company. Both of them had also identified dead body as wife of accused Rajdev @ Raju from Photographs Ext. PW24/A3, Ext. PW-24/A4 and Ext. PW 24/A8. Mobile was also identified by Pawan Kumar, of Krishan Kumar and Balwant Paswan to be belonging to accused Rajdev @ Raju vide Memo Ex.PW3/C. It was disclosed by Madho (PW5) that accused Rajdev @ Raju had rt started working in Hem Kund Factory 10-15 days prior to the incident and his wife had come from her native place about 10 days prior to Holi. She had brought 4-5 years old son from her village. Accused Rajdev @ Raju had taken room on rent from Tara Chand (PW-11) at Damuwala.
Accused Rajdev @ Raju was also known to Madho Ram and Balwant Paswan as they were working together in the factory and Balwant Paswan had seen accused along with his wife in the market in the year 2009. Accused Rajdev @ Raju was working temporarily in the factory. He attended the factory on 21.3.2011 and thereafter, he did not come to perform his duty. Jiwan Shah PW9 was ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 7 working in M/s Kangra Steel Company at Kripalpur and accused Rajdev @ Raju had also worked with him in the said Company about 10 years back. He enquired from his .
wife about the name of wife of the accused Rajdev @ Raju and came to know about her name as Taramati alias Ranju.
4. Further, the case of the prosecution is that of accused Rajdev @ Raju called his brother accused Manoj Sahani from Bangalore prior to the incident on 18.3.2011.
On 18.3.2011, in the night, quarrel had taken place in the rt quarter of accused Rajdev @ Raju and on 22.3.2011, both accused along with Taramati and child, Aman, went to Hanuman temple and did not return.
5. SHO Ramesh Chauhan PW25, Police Station, Nalagarh had prepared the challan and the same was presented before the Court.
6. We have heard the learned counsel for the parties and have gone through the record in detail.
7. To prove its case, the prosecution examined as many as 31 witnesses and the statement of accused was recorded under Section 313 Cr.P.C., wherein they have ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 8 denied the case of the prosecution and opted to lead evidence in defence. They examined one witness in defence.
8. PW1 Ajmate stated that she is an agriculturist.
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She does not remember the date but it was about one year back when she had gone to collect the grass from the jungle, at a place known as Gole Tibbi, she noticed the dead body of a lady from distance. It was lying below the of path near Hanuman Mandir. After reaching home, she told about it to Deesh Mohammed. Deesh Mohammed, after visiting the spot might have informed the Pradhan Gram rt Panchayat. In cross-examination, she admitted that several gents and ladies had been visiting Jungle through this path to collect grass and fuel woods. Several factory-
labourers and their wives used to go to Jungle to collect fuel-wood. On that date, she did not notice anybody however, several people had gone to the forest on that day.
Several other ladies were also collecting grass and fuel-
wood in the forest on that day, but they were not with her.
9. PW2 Shiv Ram stated that he was employed as a teacher and had retired on 30.4.2004. On 23.3.2011, while he was present in his house, Deesh Mohammed came to him at about 12.15 PM and told him that the dead body of ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 9 a lady was lying at Gole-Tibbi. On receiving this information, he telephonically informed Pradhan, Dhani Ram, Gram Panchayat, Kirpalpur.
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10. PW3 Dhani Ram was Pradhan of Gram Panchayat, Kripalpur. He deposed that there was a meeting of Gram Panchayat on 23.3.2011. On 23.3.2011, he received a call on his mobile at about 12.15 p.m. from of village Dadi Kania of one Shiv Ram, who told him that the dead body of a lady was lying in the forest behind the temple of Bajrangbali by the side of Pugdandi. On receiving rt this information, he telephonically informed Nalagarh Police Station at about 12:30 p.m. Thereafter, police arrived and he alongwith Inderjeet accompanied the police party to the spot. It was noticed that a dead body of a lady was lying with her face towards earth. Police took photographs of the spot. At a distance of 5-7 feet of the dead body, a mobile phone was lying; One hair clip was also found lying in the bushes. Police took photographs of the place where mobile and hair clip were lying. During inspection of the spot, a single chapple of right foot, make Relxo company, was found lying at a distance of 30 ft. from the dead body.
Police also took the photographs of that place.
::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 10The dead body could not be identified because of injury on its face. Blood had oozed out and was lying on the ground as well as on the face of the dead body. They also noticed .
marks of injuries on the person of dead body. Mobile, which was found lying, was of Lava Company. It contained memory card and mobile had double SIM facility. Mobile, hair clip and chapple were taken into possession by the of police. The post-mortem examination on the dead body was conducted on 24.3.2011. Police filled in 25:35 form and he and Inderjeet Singh appended their signatures on rt those forms. On 27.03.2011, he accompanied the police party to Kangra Steel Company at place Kirpalpur. Some people from the village of the deceased were working in the said company. Police had taken the mobile in that factory, but thereafter police went to another company, namely, Hem Kund situated at Bartotiwala to Haripur as people from the village of the deceased were working in the said company. Accordingly, they went to Hem Kund Company.
Two persons were found there, disclosed their names as Balwant and Krishan but he did not remember the name of third one. They identified the mobile, which the police had recovered from the spot, to be of the deceased. After seeing ::: Downloaded on - 15/04/2017 20:29:09 :::HCHP 11 the photos of the deceased, one boy named Madho identified the deceased to be the lady belonging to his village. Police recorded the statements of those persons and .
also prepared memo to this effect. Thereafter, police returned to the police station. They also accompanied the police party. 5 to 7 days thereafter, police called Patwari of the area, who gave the demarcation of the spot and handed of over Tatima and Jamabandi of the spot to the police. Police lifted blood stained soil from the earth and also lifted soil from the place separately. Patwari was also present on the rt spot at that time. Police separately packed the soil lifted from the spot and took it in possession vide memo, which was signed by the witnesses. The soil lifted had been sealed by the police and Inderjeet also appended his signatures to the memo. 2 to 3 months thereafter, Munshi of the police station called him and Inderjeet in the police station by making phone call. He and Inderjeet went to the police Station. The accused, present in the Court, were in the police custody in the police station. Accused Manoj Shani, present in the Court, disclosed to police in his presence that he and his co-accused had gone towards Bajrangbali Temple side. Thereafter, accused ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 12 Manoj Sahani had taken the police party to the spot. He had shown that place to the police where he and the co-
accused had thrown the dead body of the deceased. He .
had also shown those places to the police where mobile, one chapple and one hair clip were found lying. The police prepared fard and tatima on the spot. He and Inderjeet Singh appended their signatures on the memo. About 4-5 of days thereafter, police called them at Police Station and they went there. He handed over phone, chapple and hair clip to the police on that day, which were with him and they rt were taken into possession by the police. Accused Manoj Sahani identified the articles which were the same which had been found lying on the spot and Photographs whereof are Mark-A1 to A-8. Memo Ext.PW3/A bears his signatures and that of Inderjeet Singh whereby chapple was taken in possession by the police. He had also seen Memo Ex.
PW3/B, which bears his signatures and that of Inderjeet Singh, whereby chapple was taken into possession by the police. He further deposed that the memo Ex.PW3/B bears his signatures and that of Inderjeet Singh whereby Madho identified the photo of the deceased. He had also seen memo Ex.PW3/C, which bears the signatures of both ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 13 of them and mobile phone was identified by Pawan Kumar, Balwant Paswan and Krishan Kumar. He had also seen 25:
35 form (Inquest form) A and B, Ex.PW3/D, Ex.PW3/E, .
Ex.PW3/F and Ex.PW3/G bear his signatures and that of Inderjeet Singh, whereby accused Raju had given identification of the spot and also put his thumb impression on it. Site plan of that spot is Mark-A-9.
of Accused Raju had taken the police party to the spot. Photos of the spot are Mark-A-10 to Mark-A-14. Ex.PW3/H bears his signatures rt and of that Inderjeet Singh, whereby chapple, mobile and hair clip, which were also identified by accused Raju and thereafter they were got sealed and taken into possession by the police. In cross-examination he stated that the distance of Him Kund factory from Kripalpur is about 20-22 Kms. He further deposed that his village is at a distance of 1Km. form Kangra Steel factory.
Police had called him telephonically at the Police Station for going to Kangra Steels. Kangra Steels is situated in village Kripalpur. There are 70-80 houses in Kripalpur. He admitted that there are many residential houses in village Barotiwala. He further admitted that several industrial units exist there. When police had allegedly taken him to ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 14 Hem Kund factory at Barotiwala to Haripur road then 15-20 persons of the factory had gathered there. Police had not called any other person from there to be associated in .
the investigation. On re-examination, he stated that when police, he and Inderjeet Singh, went to the spot on 23.3.2011, then, no one was present on the spot. He denied that police had already reached there and he had gone of there later on. He also deposed that the path leads to Bajrangbali Temple and he showed ignorance as to where it further leads.
rt
11. PW-4 SI Kailash Chand stated that in the year 2011, he was posted as a Probationary Sub Inspector at Police Station, Nalagarh. He remained associated in the investigation of this case till 27.3.2011. In his presence, S.I. Jagpal handed over the documents relating to the deceased i.e. inquest report, Rapt Rojnamcha and memo of mobile and clip etc., memo of chapple, photographs, memo regarding identification of chapple, statements of witnesses and record for CDR, post-mortem report etc. to Inspector/SHO Ramesh, which were taken into possession vide memo. Ex.PW4/A, which bears his signatures and that of Constable Jitender and also of S.I. Jagpal and Inspector ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 15 Ramesh. He denied the suggestion that the documents were not given to Inspector Ramesh in his presence and memo was prepared fictitiously.
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12. PW5 Madho Ram deposed that in the year 2011, he was working in Hem Kund Steel Company situated at Haripur road Barotiwala. Police made inquiries from him, perhaps on 28.3.2011. He was associated in the of investigations. Police asked him whether he knows Raju.
He stated that Raju was Crane Operator in the Company rt and he worked under him. The police told him that the wife of Raju had been murdered. Police had shown her photographs. He identified the photographs to be of the wife of Raju. He went to Timco Steel Plant in search of work about one year back. At that time, he had seen Raju, his wife and their son. Police prepared a memo to that effect, which is Ex.PW3/B, which bears his signatures and that of Balwant. In cross-examination, he had deposed that he had not seen Raju's wife after having seen her in Timco Steel Factory once. He further deposed that he had seen the wife of accused Raju only once about one year prior to the alleged incident. He denied that the police told him that the wife of accused had come from village about 10 days ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 16 before Holi. He further stated that he had not given any statement to the police before 28.3.2011. He further stated that he did not know the date on which accused Raju .
joined in Hem Kund, but he joined after the joining of Raju and then he came to know that the accused Raju had joined the Company 15 days prior to the incident. He denied the suggestion that he never worked with accused of Raju and that he is deposing falsely at the instance of the accused.
13. rtPW-6 Balwant stated that he was working in Hem Kund Factory situated at Haripur road Barotiwala.
Police associated him in the investigation and that when he joined the factory then the accused had already been working there as a Crane Operator 3-4 days prior to him.
The wife of the accused had come about 3-4 days prior to Holi. He further stated that the accused had taken quarter at village Satiwala, but he never saw that. He was working as a helper with the accused Raju and further stated that Raju was having phone of China make, which was of black colour. He identified the phone of the accused. Police prepared memo Ex.PW3/C, which bears his signatures and also of Krishna and Pawan. He further stated that in the ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 17 year 2009, he had seen the wife of the accused Raju in the market. In cross examination, he admitted that his .
statement was recorded before the police and that he used the phone of accused to make calls to his parents. He stated that he came to work with Madho. He also stated that he had seen the wife of the accused in the year 2009 of and thereafter he had never seen her. He denied that the police told him that Raju's wife had come 3-4 days prior to Holi and she was murdered.
rt
14. PW7 Kishan Chand stated that in the year 2011, he was posted at Kripalpur. He was also having the charge of Patwar Circle, Nanowal. At the instance of the police, he visited the spot and prepared tatima of the spot, which is Ex.PW7/A and Jamabandi is Ex.PW7/B. The spot was found in Khasra No.589. In cross-examination, he deposed that Chapple was lying on the spot when he visited the spot on 28.3.2011. He further deposed that the Patwari is not competent to give the demarcation and that he had not given demarcation but simply prepared Tatima Ex.PW7/A. ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 18
15. PW8 C. Mani Ram deposed that he was posted in Police Station, Nalagarh till the year 2012. On 27.9.2011, he was associated in the investigation with the .
S.I. Jagpal. SI Jagpal scribed rukka Mark-X at the spot and handed over it to him to be taken to Police Station, Nalagarh. He handed over the same to the MHC, P.S., Nalagarh on the basis of which FIR No.64/11 was recorded.
of MHC P.S., Nalagarh handed-over to him seven sealed parcels to be taken to F.S.L., Junga vide RC No.48/11 and delivered the same at F.S.L., Junga and obtained receipt.
rt He further stated that SI Jagpal had handed over rukka to him on 27.3.2011 and not on 27.9.2011. On 1.9.2011, MHC P.S., Nalagarh handed over to him three sealed parcels along with sample seal and related documents vide RC No.147/11, which he delivered at the Laboratory, F.S.L. Junga and that so long the case property remained in his custody, no tampering was done by anybody. In cross examination, he admitted that his statement was recorded by the Investigating Officer. He further admitted that seven parcels were handed over to him on 28.3.2011 and three parcels were given to him on 1.9.2011 for being taken to FSL, Junga.
::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 1916. PW9 Jiwan Shah stated that he worked in Kangra Steel Factory at Kripalpur for about 10-12 years.
He left that Company about 13 months back. The accused .
Raju worked with him in that factory about 10 years back.
Raju's village situated at a distance of 1.0 Km from his village. He further deposed that last year, on the asking of the police, he made phone call to his wife to know about of the name of the wife of the accused Raju. His wife told him the name of the wife of the accused as Taramati @ Ranju.
In cross-examination, he denied the suggestion that he had rt never seen the wife of the accused nor does he know her name.
17. PW10 Mithu Chaudhary is the father of the deceased. He stated that she was got married with Rajdev @ Raju about 6 years back. After marriage, one child was born to Taramati namely Aman. He further deposed that accused Rajdev had left Aman at his house during evening time. He stayed at his house and in the morning he had left his house at about 6 - 6.30 a.m. On his asking about Taramati, the accused told him that she was in Himachal with him and had left Aman, because there was a lot of traffic in Himachal and there was possibility of an accident ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 20 and told that the accused would take back Aman from his house about 2-3 months thereafter. Police told him that his daughter Taramati died in Himachal. Police prepared a .
memo regarding identification of photo of his daughter, which is Ex. PW10/A, which bears his thumb impression.
He further stated that accused was keeping his daughter nicely, but later on, he had stopped paying money to her.
of In cross-examination, he deposed that the police recorded his statement and told that accused used to harass his daughter as he suspected her character. He denied that rt the accused had left his daughter at his home. He denied that his daughter was living in his house for the last two years. He admitted that his daughter had been visiting the house of Kishori to meet her sister and Panchayat was convened regarding theft in the house of Kishori. He further denied that when Kishori decided to lodge report then his daughter had run away from Kishori's house leaving Aman with them.
18. PW 11 Tara Chand is the owner of the building, who rented out one room of his house to accused Raju He stated that the accused was residing in that room alone.
The rent was Rs.1200/- per month and Raju paid Rs.500/-
::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 21to him in advance. He further stated that the accused lived there only for 2-3 days and thereafter he left the room. In cross-examination, he admitted that he had .
constructed three rooms in front of his residential house for rental purpose. He denied that in the month of March, 2011 accused Raju came to him and requested to let out one room. He also admitted that police told him that of accused persons had committed murder of the wife of Raju in the forest of Gol Tibbi Dadi Bhola. He further admitted that several tenants are residing in his village.
rt
19. PW12 Constable Kamal Kumar stated that he was posted as Constable in P.S. Nalagarh and that the mobile (Nokia-2100) bearing Sim No.095-35403537 was taken into possession by ASI Krishan Lal vide memo Ex.PW12/A, which bears his signatures. The same was sealed with the seal impression 'H' with three seals and taken into possession. In cross-examination, he admitted that he had accompanied the Investigating Officer to bring the accused from Karnataka. The accused was apprehended on 1.8.2011. They came back to Police Station, Nalagarh within 2-3 days and he was not present ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 22 in the Court, when the accused was produced. Ex.PW12/A was prepared in the police station, Nalagarh.
20. PW13 is Constable Deepak Kumar, P.P., .
Dabhota and to whom MHC Ved Prakash handed-over case property in FIR No.64/11 vide RC No.61/11, the details of the case property were given in RC, for being taken to FSL Junga. He deposited the case property at of FSL, Junga and on the same day, he obtained receipt.
Further stated that so long the case property remained in his custody, no tampering was done by anybody.
rt
21. PW 15 Sudama Ram stated that he had been working as a Supervisor in M/s Hem Kund Iron and Steel Pvt. Ltd, Barotiwala for the last three years. He further stated that the record is maintained only of permanent employees and not of temporary employees. Accused Raju was employed as a Crane Operator in the Company temporarily, so the company had not kept his record. He further stated that the accused was employed in March, 2011.
22. PW16 Sanjay Kumar is driver by profession. He stated that he was keeping mobile No.98054-07116. He had given the above mobile to the accused in January, ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 23 2011, as the former was in need of money. In cross-
examination, he deposed that the accused was not previously known to him. Mobile was sold at a tea stall.
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Police called him on 30.9.2011 to the Police Station. He denied the suggestion that the police threatened him either to depose that he had sold mobile or he would be implicated as an accused. He further deposed that he was of plying his vehicle in the area of Baddi and Barotiwala.
23. PW17 Sudesh Kumar stated that he was rt running photography shop in the name and style of M/s Thakur Video Vision at Nalagarh and is a photographer.
During investigation, police took him to Dadi Bhola near Hanuman Johri Temple. The witness pointed out towards accused Manoj Sahani and stated that he identified the spot to the police. He took photographs of the spot on the request of the police. Accused Manoj Sahani also got recovered one stone, which was in the bushes near Hanuman Temple. He also took photographs when accused Manoj Sahani was taking out stone from the bushes. He also admitted that the photographs Ext.PW17/A-1 to Ex.PW17/A-5 bears his signatures. In cross-examination, he denied that the photographs are manipulated ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 24 documents. He further denied that accused Manoj Sahani never got recovered any stone from the bushes.
24. PW18 Mool Chand had been the Pradhan of .
Gram Panchayat, Khera since the year 2011. On 11.8.2011, he had come to Police Station, Nalagarh, in connection with his own work and the police asked him to associate with them in a murder case, as they had to go to of Hanuman Mandir in a jungle in connection with investigation. He further stated that the police did not disclose anything to him. On the prayer of the P.P., he has rt been declared hostile, as he had resiled from the statement made under Section 161 Cr.P.C. In cross-
examination, he admitted that Manoj Sahani made statement in his presence before the police and in the presence of Musadi Ram that he could get recovered the stone from the jungle with which he had committed murder of Tara Mati. He further admitted that his statement was reduced into writing by the police and was signed by him, Musadi Ram and accused Manoj Kumar.
He also admitted that the stone was wrapped, put in a parcel and sealed by the police and taken into possession vide memo. Ex.PW14/B, which also bears his signatures ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 25 as well as signatures of Musadi Ram and Manoj Sahani.
He also identified the stone, which was got recovered by Manoj Sahani from the spot on that day. Ex.P-8 parcel .
bears his signatures. He stated that the written documents were not executed at the spot in his presence. He further admitted that Ex.PW14/A and Ex.PW14/B were prepared by the police in a hotel after returning from the spot.
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25. PW19 Dr. Rajinder Kumar stated that in the year 2011, he was posted as Medical Officer in FRU, Nalagarh.
rt He conducted autopsy of unidentified female body, aged about 20-30 years and also did post mortem of the dead body and found many injuries. He further deposed that the injury mentioned in the autopsy report Ex.PW19/A is possible with stone Ex.P-9. Parcel Ex P-10 bears his signatures. In his cross-examination, he stated that Stone Ex.P9 was not shown to him earlier and he had seen the same in the Court for the first time. They commenced post-mortem during working hours but specific time has not been mentioned in the autopsy report. He further deposed that it was possible that if head had been struck with the stone Ex.P-9, the brain matter would have come out of the wound, voluntarily stated that ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 26 it was not possible in every case. The head injury mentioned was possible with danda blow also. He stated that he has not mentioned the dimension of the injuries. It .
is not necessary that if Ex.P9 had been used as weapon of offence, then gravity of injuries on the body of the deceased would have been very high and voluntarily admitted that it is not possible in every case.
of
26. PW 20 Ved Prakash remained posted as MHC in Police Station, Nalagarh from August,2009 to July,2011.
HHC Ramesh Chand deposited with him four sealed jars rt containing viscera, one vial containing blood of deceased and one another sealed parcel containing clothes and other articles of deceased along with envelope addressed to FSL, Junga. On 27.3.2011, S.I. Jagpal deposited one Chapple, mobile and clip recovered from the spot with him. On 28.3.2011, Inspector Ramesh Chauhan deposited with him one sealed parcel sealed with seal impression 'C' said to be containing blood stained soil lifted from the spot. He made entries in the Malkhana register regarding these articles. He sent Jars containing viscera to FSL, Junga along with envelope vide RC No.41/11 through C. Mani Ram and on 7.4.2011, he sent the parcel containing soil ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 27 vide RC No.61/11 through C. Pradeep Kumar for examination. Entries were in his hand and the extracts of those registers are Ex.PW20/A, Ex.PW20/B and .
Ex.PW20/C respectively. He further stated that no tampering was done with the case property. In cross -
examination, he admitted that there are no signatures of the person who deposited these articles or of the person of with whom these were deposited. It is also not mentioned from where the articles were brought by them. He denied the suggestion that such articles were neither deposited rt with him nor had he sent the same to FSL and the entries had been manipulated.
27. PW 21 HC Harvinder Kumar stated that he had been posted as MHC, Police Station, Nalagarh since 2011.
He further stated that on 11.8.2011, ASI Krishan Chand of the Police Station, Nalagarh deposited one sealed parcel with seal impression 'A' with him and two FTA cards, which were sealed in parcels with seal impression 'CHNLG' of three impressions. On 16.8.2011, ASI Krishan Chand also deposited one parcel sealed with seal impression 'L' said to be containing mobile, one chapple Relaxo and one clip. Earlier these articles were opened ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 28 and were got identified by him from the witnesses and after that those were deposited with him. C. Mani Ram was sent to FSL Junga to deposit the parcels and he handed-over .
receipt of the same to him after depositing them in FSL. No tampering was done with case property during the period it remained with him. In cross-examination, he admitted that there was no entry that mobile, chapple and clip were of taken out from the malkhana for getting them identified from the witnesses. He also admitted that there are no signatures of the persons, who deposited these articles rt with him and volunteered that there is no provision for obtaining the signatures on the malkhana register.
Sample seal was not deposited qua entry No.834. He denied the suggestion that these articles were not deposited with him nor had he sent some of them to FSL and the entries were manipulated.
28. PW 22 C. Jitender was posted as Constable general duty and stated that DDR No.23 and 43, dated 23.3.2011 were entered by him in the Computer, which bears necessary certificates regarding working condition of the computer and the same are Ex.PW22/A and Ex.PW22/B. S.I. Jagpal handed-over all documents ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 29 relating to Tara Mati deceased to Inspector Ramesh Chand in his presence vide memo. Ex.PW4/A, which bears his signatures as a witness. In cross-examination, he denied .
the suggestion that he did not record any such DDRs nor documents were handed-over by S.I. Jagpal in his presence to Inspector Ramesh Chand and also denied the suggestion that he was stating falsely.
of
29. PW23 Devinder Verma stated that he had been posted as Nodal Officer with Bharti Airtel for the last five years. His job is to maintain liaison with the Govt. and rt other DOTs. On the request of S.P., Baddi. He issued billing address and call details of Cell No.98054-07116 to the police. The cell phone was in the name of Sh. Sanjay Kumar son of Neeru of Chamba. The details of record are Ex.PW23/B. In cross-examination he admitted that he had not brought any record pertaining to consumers' application as well as the record pertaining to identity of consumers like photographs etc. He further stated that he did not remember whether he had given any certificate regarding computer output. He further denied the suggestion that the Sim No. was not allotted to Sanjay ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 30 Kumar. He further denied that he has given wrong statement and call details and billing address are wrong.
30 PW24 SI Jagpal Singh was posted as Additional .
SHO, Police Station, Nalagarh. On 23.3.2011, at about 12.30 p.m., Pradhan Dhani Ram Gram Panchayat, Kripalpur, telephonically informed about the dead body of one unknown lady which was lying in Dadi Kania Forest on of which rapat Ex.PW22/A was recorded. He went to the spot with other police officials and he took photographs Mark-A-1 to A-8 (now Ex.W24/A-1 to Ex.PW24/A-8), rt examined the body of the deceased and prepared inquest Ex.PW3/D and Ex.PW3/E. He also prepared site plan Ex.PW24/B. On the spot, one mobile cell of Lava/KKT and hair clip were lying and at some distance one bathroom chapple of a child was found. He collected those articles and took them in his possession. Dead body could not be identified by anyone. The same was sent to FRU Nalagarh for autopsy and autopsy report Ex.PW19/A was obtained.
The viscera of deceased was got preserved for further examination. Samples were also got preserved for DNA examination. Pawan Kumar and Krishan Kumar Yadav, who were working with M/s Hemkund Pvt. Ltd.
::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 31Barotiwala, identified the cell phone as of accused Raju @ Rajdev, Crane Operator, who used to work in the same factory. The photographs of the dead body were also .
shown to them. They identified the dead body as that of wife of the accused Raju. Memo Ex.PW3/B was prepared by him. The accused was not traceable in Nalagarh or at Baddi. It has come in his statement that wife of the of accused Raju had come to Barotiwala few days ago.
Balwant Paswan and Madhav, who were also working in the same factory also identified the body as of the wife of rt the accused Raju. They further told that the accused had called his brother Manoj from Bangalore on 18.3.2011. He further deposed that he met Jiwan Shah in the presence of aforesaid persons in Kangra Steel factory and got the parentage and address of the accused verified from him and was satisfied that the said lady had been murdered by accused Raju @ Rajdev and another. He prepared rukka Mark-X (now Ex.PW24/C) and sent the same to Police Station, Nalagarh. He also went to Police Station, Nalagarh on the same day and handed-over the file to SHO there vide inventory Ex.PW4/A. Memo of identification Ex.PW10/A was prepared by him. At that point of time, ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 32 the son of Raju @ Rajdev was also there, the father and mother-in-law of the accused told them that the accused had left the boy with them on 25.3.2011 and also told that .
there was lot of traffic at Baddi and for that reason, the child had to be left there. On 25.3.2011, he did not stay on that night in the house of his in-laws. In cross-
examination, he admitted that the Sims were installed in of the cell phone and were used. He denied that blood stained soil was taken by him from the spot and that the articles recovered from the spot on 23.3.2011 were not rt deposited in the malkhana. He did not record the statement of the child, as he was not in a position to make any statement and did not take any record of birth of the child. He further denied the suggestion that he did not go to Bihar and that he was giving a false statement.
31. PW25 Ramesh Chauhan had stated that he was posted as SHO in Police Station, Nalagarh and when he returned to Police Station from leave, he came to know that a murder case had been got registered in the Police Station, he and S.I. Jagpal investigated this case. The statements of PSI Kailash Chand and C. Jitender were recorded by him. He visited the spot with some other police ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 33 officials. On spot visit, he prepared a site plan Ex.PW25/A. The notes are in his hand. Ex.PW7/A and Ex.PW7/B i.e. Jamabandi and Aksh Shajra of the spot were got preperaed .
by him. The blood stained soil and controlled soil were lifted from the spot, put into a paper and then into polythene packets. The same were put into a parcel sealed with the seal impression 'C' and took them into possession of vide memo. Ex.PW3/F and separate sample seal Ex.PW25/B was taken on a cloth. On 31.3.2011, after consulting S.P., Baddi, a party was sent in search of rt accused Raju (accused) to Bihar. The police party came back on 8.4.2011 and told that the accused had gone to the house of his in-laws on 25.3.2011 alongwith his four year old son Aman, left him there and came back on 26.3.2011 in the early morning. They came to know at Bihar about the cell phone number of the brother of the accused, who used to reside at Bangalore. Cell No.95354- 03537 was of Manoj Sahani. On obtaining the call details of both the accused, it came out that both of them were continuously in touch with each other on and w.e.f.
13.3.2011 till 25.3.2011. The billing address of Manoj Sahani was of District Mandya of Karnataka. A letter was ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 34 written to SP, Mandya through S.P. Baddi for making further investigation qua Manoj Sahani. When no response came from him, a police party headed by ASI Krishan .
Chand was also sent to Karnataka for further investigation.
In cross-examination, he deposed that the villagers of that area go to Dadi Kania forest to graze cattle and cut grass.
The chapple Ex.P2 was found in the middle of foot of path(Pagdandi). He denied that the arrows of the articles, as shown in the plan Ex.PW25/B, starts from the footpath. rtHe further denied that there is no mention of presence of blood spots, at the site in Ex.PW25/B. He also denied that S.I. Jagpal never went to Bihar nor he could have gone there being complainant. He further denied the suggestion that the accused Manoj and Raju @ Rajdev never had cell phone with them.
32. PW26 Dr. M.K. Dixit stated that he had been working as Medical Officer, F.R.U., Nalagarh from the year 2008. On 29.9.2011, he took blood samples of Mithu Chaudhary and Maya Devi and poured two drops thereof in two separate FTA cards and on sealing both of them, also attested the identification forms Ex.PW26/A and Ex.PW26/B by appending his signatures and handed over ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 35 the same to the accompanying police personnel for depositing the same in FSL, Junga for examination. In cross-examination, he denied the suggestion that he had .
not taken any blood samples of the above named persons nor had he handed over the FTA Cards to the police alongwith docket.
33. PW27 Naseeb Singh stated that he was working of as a Scientific Officer, Physics and Ballistics Division in State FSL, Junga, Shimla since June, 1999. He stated that on 7.4.2011, a sealed sample having seal impression rt "Biology and Serology" was received in his aforementioned division. Seals were intact and the same were broken and out of the sample, two paper pouches containing blood soiled controlled sample of soil were found therein. He further deposed that the exhibits after examination were sealed with the seal impression of "PHYS/BALL.DIVN FSL". Report Ext.PW27/A was signed by him.
34. PW28 Jasbir Singh stated that on 20.8.2011, he had come to Police Station, Nalagarh, ASI Krishan Chand had shown him a Mobile Phone and thereafter he had obtained his signatures on a parcel. In cross-examination ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 36 he had deposed that Memo Ext.PW12/A bears his signatures. Parcel Ex PW12/B also bears his signatures.
He deposed that he had not been compelled to put his .
signatures on the exhibits.
35. PW29 Inspector Kamla Ghai stated that in the year, 2011, he was posted as SHO in Police Station, Nalagarh. He had recorded statements of Desh of Mohammad, Ajmate and Shiv Ram as per their version on 24.8.2011 and thereafter on 15.9.2011, he had also recorded the statements of five persons/witnesses as per rt their version. He further deposed that he had prepared the challan and filed the same in the Court. In cross-
examination, he denied that statements of the witnesses were recorded by him as per his convenience and not as per their versions.
36. PW30 ASI Pawan Kumar, I.O., P.S. Kangra had stated that he was posted as I.O. Police Station, Nalagarh in the year 2011. On 27.3.2011, he was officiating SHO and he received Rukka Ex.PW-24/C through C. Mani Ram.
FIR Ex.PW-30/A was registered, which bears his signatures in red circle-A. He made endorsement Ext.
PW30/B on Rukka Ex. PW-24/C. ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 37
37. PW31 ASI Krishan Chand is the Investigating Officer. He deposed that he was handed over the investigation on 30.7.2011 by the SHO. On verification, .
the SIM was found belonging to P. Mahesha. He recorded the statement of P. Mahesha Ext. PW31/A, as per his version. The mobile was found in working condition. The accused Manoj was using this telephone, when accused of was in Karnataka. He found both the accused working there. On inquiry, accused Rajdev disclosed him that his wife Taramati eloped with some person, namely, Paswan rt on 22.3.2011 from village Damuwala, Barotiwala. He also disclosed that he was residing in the quarter of Tarachand of Damuwala. The accused disclosed that he never went to Barotiwala. The accused Monaj Sahni disclosed that on 22.3.2011, Rajdev told Monaj Sahni that his wife eloped with Paswan. Both of them were brought to Barotiwala and as per this witness Tara Chand disclosed that Rajdev @ Raju, Manoj Sahni, Taramati and her son all went in the morning to pay obeisance in Hanuman Temple at Dadi Bola. Thereafter, they did not return. PW 31 stated that he recorded the statement of Tara Chand, which is Ex.PW31/B as per his version. On inquiry, Paswan told ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 38 PW31 that 2-3 days before Holi accused Monaj Sahni came to the factory of Rajdev and he also visited Hanuman Temple on 22.3.2011. Thereafter, PW31 arrested the .
accused and mobile of Monaj Sahni was taken into possession alongwith SIM vide memo PW12/A. Thereafter, on the disclosure of Monaj Sahni recovery of the stone was effected with which he killed Taramati on the way to of Hanuman Temple. He has further deposed that one stone was recovered from the place and it was taken into possession vide memo Ext.PW14/B. rt Photographs were taken at the spot, which are Ext. PW17/A-1 to PW-17/A-5 and sample seals were taken separately on cloth Ext. PW 31/C. The accused Rajdev, while in police custody, had also demarcated the place Dadi-Bola near Gol-Tibi where chapple of son of Taramati had fallen and Chapple was taken into possession vide memo Ext.PW-3/G. The Investigating Officer prepared the spot map in the presence of witnesses, namely, Inderjeet and Dhani Ram, which is Ext.PW-31/D. The spot map for recovery of stone Ext. PW-
31/F was prepared. Chapple, clip and mobile set were got identified from the accused Rajdev by taking the same from Malkhana vide memo Ext.PW-3/H. Thereafter, it was ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 39 sealed in a clothed parcel by putting three seals of impression 'L'. Statements of Jasbir Singh Ext.PW-31/F, Musadi Lal Ext. PW-31/G, Sudama Ram Ext. PW-31/H, .
Inderjeet and Dhani Ram were recorded by the Investigating Officer. In cross-examination, he could not say whether P. Mahesha lodged missing report qua mobile with the police at P.S. Mandya. He further deposed in of cross examination that accused stayed outside the police station in the intervening night of 7/8.8.2011. They were arrested on 8.8.2011 after being called at the Police Station rt and zimini order is there to that effect. He has stated that he had not recorded the statement of Tara Chand.
38. As per version given by PW-5 and PW-6, accused Rajdev @ Raju was living at Satiwala. PW6 says that he did not see the quarter of accused Rajdev @ Raju and saying that he had seen his wife in the market in 2009. This goes to show that accused Rajdev @ Raju was residing at Baddi since long time with his wife. Version given by PW-11 is that he rented out quarter to Raju a year before the last seen. His statement was recorded on 10.1.2013. This period goes nearly 2 years back, but not up to 2009. The probability of residing of Raju at Satiwala ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 40 previously cannot be ruled out. PW5 had seen Raju, his wife and their son at Timco Steel Factory one year back.
Thus, version given by PW5 that Raju had taken quarter at .
Satiwala also does not create any doubt. PW5 has specifically stated that wife of Raju had come from her house about 10-15 days prior to the incident. PW5 was working with Raju in the same factory. Therefore, this of knowledge is attributable to him by virtue of togetherness at the same place of working. There is no enmity suggested against PW5 and PW6.
rt Nothing is deducible that they have deposed falsely to implicate accused. Their version is natural. Both the accused have not disputed that Raju had taken room at Damuwala, as revealed from statements recorded under Section 313 Cr. P.C.
39. At this stage, it is relevant to take note of the judgment of the Honble Supreme Court on circumstantial evidence in Vijay Thakur Vs. State of Himachal Pradesh , (2014) 14 Supreme Court Cases 609. Relevant para reads as under:-
"18. It is to be emphasized at this stage that except the so called recoveries, there is no other circumstances worth the name which ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 41 has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In .
such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without of any doubt. Insofar as these two appellants are concerned, there is no rtcircumstance 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, the Hon'ble Supreme Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 42 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 following manner:
"6. It is by now well settled that in a case of relating to circumstantial evidence the chain of circumstances has to be spelt rtout 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, the Hon'ble Supreme 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 postulated. Whenever the case is based on circumstantial evidence the following ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 43 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 must or should be and not merely 'may be' fully established;
(ii) The facts so established should be of consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any rt 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."
::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 4425. With regard to Section 27 of the Act, what is important is discovery of the material 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 and its use in the of commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and rt not any opinion formed on it by the prosecution."
40. Thus, the salient points which have been carved out by the Hon'ble Supreme Court in the case of circumstantial 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 ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 45 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;
of and
(v) Thee must be a chain of evidence so complete as not to leave any reasonable rt 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."
41. The Hon'ble Supreme Court in Sangili alias Sanganathan Vs. State of Tamil Nadu, (2014) 10 Supreme Court Cases 264 has held as under:
"15. To sum up what is discussed above, it is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 46 person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. In the present case, we find, in the first .
instance, that the appellant was roped in with suspicion that it was a case of triangular love and since he also loved PW-3, he eliminated the deceased when he found that the deceased and PW-3 are in love with each other. However, we are of the view that this motive of has not been proved. The evidence of last seen is also not established. Father of the deceased only said that the deceased had received a call rt and after receiving that call he left the house.
In his deposition, he admitted that he had not seen the appellant before and he did not recognize his voice either. Therefore, he was unable to say as to whether the phone call received was that of the appellant. Proceeding further, we find that the deceased was not seen by anybody after he left the house. 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."
42. In these circumstances, as it is a case of circumstantial evidence, this Court has to satisfy its ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 47 judicial conscience as to whether by way of circumstantial evidence produced on record by the prosecution, it has been able to link the commission of the offence with the .
accused or not.
43. Now, we will apply the above salient features to the facts of the present case in order to ascertain as to whether there is any infirmity or perversity with the of judgment passed by the learned trial Court in the present case. Neither is there any direct evidence nor is there an eye witness rt who allegedly has seen the accused committing the crime. Thus, the case of the prosecution is solely based on circumstantial evidence. Where a case rests upon circumstantial evidence, such evidence in order to base conviction, must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
44. In the present case, the chain is complete against accused Rajdev @ Raju that he was working with PW 5 and PW6 in the Hem Kund Factory as per their statements. It has come on record that he did not join his ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 48 duty after 21.3.2011. This is a major link in the chain of circumstances. PW15 has also established the fact that accused Rajdev @ Raju was working with him in the .
Factory as Crane Operator temporarily in the month of March, 2011. PW5 and PW6 were working along with him in the said factory. While being examined under Section 313 Cr.P.C., the accused Rajdev @ Raju has explained of that he used to work in different factories, but he could not disclose where he was working after leaving the job of Crane Operator in the Hem Kund Factory.
rt
45. Further, accused Rajdev @ Raju was last seen in the company of deceased by PW5, PW6 and PW14. The evidence on record conclusively proves that the deceased was living with Rajdev @ Raju in the house of Tara Chand. The accused Rajdev @ Raju was last seen in the company of deceased Taramati and his son. It has come in evidence that Rajdev @ Raju accused left his son at his in-laws house under the excuse that there is a lot of traffic in Nalagarh area. Further, in the statement of PW6, it has come that he told PW6 that the deceased is in Nalagarh where the accused was working. From this, it is clear that accused Rajdev @ Raju after committing the ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 49 murder of his wife had taken his son to his in-laws house.
The evidence on record along with circumstances that the accused Rajdev @ Raju should have known about his wife .
and the circumstance that he left his son at his in-laws house, leads to the only conclusion that accused Rajdev @ Raju had killed his wife with the intention to do so in the jungle in Gole Tibbi, near Hanuman Temple at Nalagarh, of Tehsil, District Solan, H.P. After killing his wife in order to conceal the evidence, has put the face of his wife towards ground in order to destroy the evidence.
rt This fact and circumstance that deceased was wearing red dress as seen lastly is getting corroboration from post-mortem report Ex.PW-19/A, where red colour shirt, red colour Salwar and red colour Chuni was found on the dead body at the time of conducting autopsy. Further, photographs Ex.PW-21/A1 to Ex.PW-21/A8 also corroborate this fact.
PW 11 Tara Chand has seen the deceased in the same dress while leaving the room alongwith accused Rajdev @ Raju and their child and he has admitted so in the cross-examination. So, this part of his evidence is reliable and it completes the chain against accused Rajdev @ Raju. The other circumstantial evidence against accused ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 50 Rajdev @ Raju is that he gave totally false explanation to PW10 Mithu Chaudhary, who is the father of the deceased that his wife Taramati, is alive and is at .
Barotiwala/Satiwala when she was dead and it is only the accused Rajdev @ Raju, who was supposed to know the whereabouts of his wife and making a false statement that his wife is alive while leaving his son in his in-laws' house of is a strong circumstantial evidence against the accused Rajdev @ Raju.
46. rt So far as the motive is concerned, it has also come on record that the accused Rajdev @ Raju was having a suspicion about the character of his wife.
Moreover, the motive is to be inferred from the evidence on record, which shows that the motive of accused Rajdev @ Raju was to kill his wife as he had the impression in his mind about the bad character of his wife. Further, the explanation offered by accused Rajdev @ Raju to PW30 ASI Pawan Kumar and PW 31 ASI Krishan Chand, when they visited village Habokwari, District Mandya in Karnataka and found accused Rajdev @ Raju alongwith his brother there, that his wife has eloped with someone despite having the knowledge that his wife is dead, is also ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 51 strong circumstantial evidence against accused Rajdev @ Raju. Had she (deceased) eloped with someone in the ordinary course, he should have reported the matter to .
the police or at least informed his in-laws. For that, he had opportunity, when he left his son in the in-laws' house. These all circumstances coupled with the fact that after the death of his wife, the accused has not of remained at Barotiwala area and has left for a far off place in Karnataka, is a strong circumstance against the accused. rt
47. The result of the above discussion is that the prosecution has proved the guilt of the accused Rajdev @ Raju conclusively beyond reasonable doubt and the judgment of the Court below convicting him for the offences punishable under Sections 302, 201 read with Section 34 I.P.C. needs no interference.
48. Now, coming to the role of his younger brother Manoj Sahani, the Investigating Officer has stated that Manoj Sahani has come to his brother at Nalagarh and he was seen alongwith the accused Rajdev @ Raju, deceased (Taramati) and their son when they went towards Hanuman Temple. The accused Manoj Sahani was in ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 52 constant touch with his brother Rajdev @ Raju on cell phone. The case of the prosecution against Manoj Sahani is that he was last seen with accused Rajdev @ Raju, his .
wife and their son at Barotiwala immediately before the murder of the wife of his brother accused Rajdev @ Raju but no witness has stated so, except the Investing Officer.
The Investigating Officer has no occasion to see the of accused Manoj Sahani alongwith accused Raju. There is no evidence on record to prove the fact that accused Manoj Sahani was alongwith accused Rajdev @ Raju, his rt wife, now deceased, and their son before the alleged incidence and they had gone together towards Hanuman Temple. The only incriminating evidence against the accused Manoj Sahani is recovery of stone made on his disclosure statement with which the offence has been committed.
49. With regard to Section 27 of the Act, what is important is discovery of the material 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 ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 53 close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to .
discovery and not any opinion formed on it by the prosecution.
50. As the chain against Manoj Sahani is not complete and on the basis of suspicion only Manoj Sahani of cannot be convicted.
51. It is settled position of law that suspicion rt however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the accused Manoj Sahani and the accused Manoj Sahani is entitled to get the benefit of doubt.
52. So, we are also of the considered view that the prosecution has failed to bring home the guilt of Manoj Sahani accused/appellant No.2 in the present appeal. The prosecution has not been able to link appellant No.2/accused with the crime beyond reasonable doubt.
The chain of circumstance is neither complete nor it links ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 54 the accused Manoj Sahani with the crime beyond all reasonable doubt.
53. As far as accused Rajdev @ Raju is .
concerned, he was lastly seen with the deceased but as far as Manoj Sahani is concerned, he was not seen lastly with the deceased. There exists a little doubt whether accused Manoj Sahani has come to Nalagarh or he was of at the place of his work in Karnataka and he was only in touch with his brother accused Rajdev @ Raju. The disclosure statement made by Manoj Sahani, which leads rt to the recovery of stone is the only evidence against Manoj Sahani but if analyzed, the same also creates a doubt. When doubt is caused with respect to the role of accused Manoj Sahani, the law will take its own course and giving the benefit of doubt, we have to conclude that the prosecution has failed to prove the guilt of the accused Manoj Sahani beyond reasonable doubt and conclusively.
54. Therefore, we hold that the conviction and sentence awarded to the accused/appellant No.1 Rajdev @ Raju do not call for any interference. So far as the case of appellant No.2 Manoj Sahani is concerned, it is observed ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP 55 that the prosecution has not been able to link accused/appellant No.2 Manoj Sahani with the crime beyond reasonable doubt. The chain of circumstance is .
not complete against Manoj Sahani. So, in the interest of justice, we observe that it is a fit case to set Manoj Sahani Accused/Appellant No.2 at liberty allowing the appeal to this extent.
of
55. Accordingly, the appeal is partly allowed with the above observations. Accused Manoj Sahani be released immediately, if not required in any other case.
rt Fine amount, if any deposited by accused Manoj Sahani be returned to him. The Registry is directed to prepare the release warrant qua accused Manoj Sahani and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith. However, the appeal of the accused Rajdev @ Raju is dismissed. All the pending application(s), if any, stand disposed of accordingly.
( Rajiv Sharma ) Judge (Chander Bhusan Barowalia) Judge 30th May, 2016 (M.gandhi) ::: Downloaded on - 15/04/2017 20:29:10 :::HCHP