Himachal Pradesh High Court
Mohan Son Of Ram Dass vs State Of Himachal Pradesh on 15 July, 2019
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
Cr. Appeal No. 565 of 2016
Reserved on: April 16, 2019.
.
Date of decision: July 15, 2019.
Mohan son of Ram Dass ......Appellant.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
r Yes.
For the appellant : Mr. Lakshay Thakur, Advocate.
For the respondent : Mr. Narender Guleria, Addl. AG with
Mr. Kunal Thakur, Dy. AG and Mr.
Sunny Dhatwalia, Asstt. AG.
Dharam Chand Chaudhary, J.
Appellant Mohan herein is a convict. He has been tried, convicted and sentenced to undergo rigorous imprisonment for life and to pay a sum of Rs. 10,000/- as fine for the commission of the offence punishable under Section 302 of the Indian Penal Code vide impugned judgment dated 14.9.2016 passed by learned Addl. Sessions Judge (I), Kangra at Dharamshala, Circuit Court at Indora, District Kangra, H.P in Sessions Case No. 8-I/VII/2014.
2. On 17.11.2013, PW-1 Pratap Singh (hereinafter referred to as the complainant) was ploughing his fields at Village Naudan 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. ::: Downloaded on - 29/09/2019 00:45:44 :::HCHP 2 (Kudsan) and the accused engaged as labourer was manuring the fields. A lady came there and told the complainant that naked dead body is lying in the adjoining fields near Chhounch khad. The .
complainant went to the place where the dead body was lying. PW- 18 Surjeet Singh, the Pradhan of the Gram Panchayat also came there. They both noticed that the face of dead body was crushed with stone and the injuries bled profusely. Surjeet Singh informed the police of Police Station Indora over telephone around 12:30 PM about the dead body lying in the nallah. The villagers also gathered on the spot. The dead body was identified to be that of one Shanti Devi alias Shanto wife of Bishamber Singh, a resident of Kudsan village. The deceased allegedly was living separately from her husband. She had four daughters and a son. The youngest daughter of the deceased Sushma (PW-4) was married to one Sukhdev. However, on account of being tortured by her husband, their marriage had been dissolved by a decree of divorce. The accused was working as servant of the complainant. He came to Village Mirthal and started living there with deceased Shanti Devi and PW-4 Sushma in rented accommodation. The marriage of PW-4 Sushma was solemnized with the accused later on. On 15.11.2013, the accused allegedly came to the complainant with a request to engage him as labourer on daily wage basis. Accordingly, the accused was engaged by the complainant. The complainant ploughed the fields on 16.11.2013, however, the dead body was not ::: Downloaded on - 29/09/2019 00:45:44 :::HCHP 3 there on that day. Deceased Shanti Devi was seen in the company of the accused on 16.11.2013 near a shop at Bhia Indorian. She allegedly was murdered thereafter during the night intervening .
16/17.11.2013.
3. Consequent upon the information received in the Police Station, the police swung into action. PW-17 SI Chain Singh has taken in hand the investigation after registration of the case vide FIR Ext. PW-12/B on the basis of the statement of the complainant Ext. PW-1/A recorded under Section 154 Cr.P.C. The photographs of the dead body Ext. PW-11/A to Ext. PW-11/P were clicked by the photographer PW-11 Roshan Lal. The inquest papers Ext. PW-17/D were prepared. The spot map Ext. PW-17/B was also prepared. A stone Ext. P-3 lying near the dead body was taken into possession and sealed in a parcel with five seals of impression "R". The blood stained soil Ext. P-5 was also taken from the spot and sealed in a box Ext. P-6 with the impression of the same seal. Parcel Ext. P-7 was taken into possession vide recovery memo Ext. PW-2/A in the presence of Om Prakash and PW-2 Raj Kumar. The sample of the soil near the dead body was also collected and sealed with the impression of seal "R". The same was also taken into possession vide memo Ext. PW-2/B. Witnesses Om Prakash, Raj Kumar, Sushma and Jyoti had suspected the hand of the accused in the murder of deceased Shanti Devi. PW-17 SI Chain Singh made an application Ext. PW-8/A to Medical Officer, CH Nurpur for getting the ::: Downloaded on - 29/09/2019 00:45:44 :::HCHP 4 post mortem of the dead body conducted. Accused Mohan was searched, however, he had absconded. His T-shirt Ext. P-1 was taken into possession vide memo Ext. PW-1/B. The household .
articles of the deceased were recovered near Pir Baba Temple below a banyan tree. The same were taken into possession vide recovery memo Ext. PW-3/A and handed over to PW-6 Santosh Kumari, her daughter. The dead body was referred to Dr. R.P.Medical College Tanda by the Medical Officer CH Nurpur for seeking opinion of the forensic expert. The post mortem report issued by PW-8 Dr. Mohan Singh Medical Officer, CH Nurpur is Ext. PW-8/B. The dead body was sent to Tanda Medical College vide letter Ext. PW-8/C addressed to HOD, Forensic Department. The Dy. Superintendent of Police (Hqrs.) at Dharamshala also moved the application Ext. PW-10/A requesting thereby the HOD (Forensic Department), Medical College Tanda to conduct the post mortem of deceased Shanti Devi. Another application Ext. PW-10/B for the purpose was also moved. The post mortem was conducted by PW-10 Dr. Susheel Sharma, Asstt. Professor, Forensic Medicine Department, Dr. R.P.Medical College Tanda. He has issued the post mortem report Ext. PW-10/C. PW-10 had also handed blood in gauge, nail clips Ext. PX-1, vaginal swab Ext. PX-2 and Ext. PX-3 and articles/wearings duly sealed. The photographs Ext. P-1 to P-9 of the post mortem conducted were also taken. All the articles were handed over by PW-10 Dr. Susheel Sharma to the police vide letter Ext. PW-10/D and the same in turn ::: Downloaded on - 29/09/2019 00:45:44 :::HCHP 5 were handed over to MHC, Police Station Indora for further action. The accused was arrested in this case by PW-17 SI Chain Singh on 23.11.2013. He was produced in the Court and remanded in police .
custody. The photographs of the accused Ext. PW-17/F-1 to Ext. PW-17/F-3 were clicked.
4. Further investigation of this case was conducted by PW- 19 Insp. Balbir Chand. This witness has recorded the disclosure statement Ext. PW-2/C and on the basis thereof, the clothes (shirt Ext. P-12, Salwar Ext. P-13, koti Ext. P-14, Banyan Ext. P-15 and Kurta Ext. P-16) of the deceased concealed at Chhounch khad were produced after taking out the same from a pit. The same were taken into possession vide recovery memo Ext. PW-2/D. That spot was photographed and videographed vide photographs Ext. PW-11/H. The spot maps Ext. PW-19/A and PW-19/C were also prepared. The accused, allegedly got recovered his jean pants Ext. P-18 from the house of PW-1 Pratap Singh, the complainant. The same was sealed in a parcel and taken into possession vide recovery memo Ext. PW- 2/E. The proceedings were photographed and videographed vide photographs Ext. PW-11/J and PW-11/K. The spot map Ext. PW- 19/E was also prepared. One Rani Devi, Raj Kumar (PW-2) and S.I. Manohar Lal (PW-5) were also present on the spot. The articles recovered were handed over to MHC for safe custody in the malkhana.
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5. The accused on 26.11.2013, made another disclosure statement Ext. PW-2/F qua identification of the place where jewellery worn by the deceased and other articles removed by him from the .
dead body were concealed in the presence of PW-2 Raj Kumar and S.I. Manohar Lal (PW-5). At the instance of the accused, two mobile battries Ext. P-20 and P-21, mobile Sim of Idea Ext. P-22 and that of Airtel Ext. P-23, Payal Ext. P-24, Mangal Sutra Ext. P-25, Rings Ext. P-26 and P-27, ear rings Ext. P-28, currency notes worth Rs. 40/- Ext. P-29 and photos Ext. P-30 were recovered. The place of recovery was photographed and videographed vide photographs Ext. PW-11/L to PW-11/O and CD Ext. PW-11/Q prepared. These articles were taken into possession vide recovery memo Ext. PW-2/G after the same were identified by PW-4 Sushma to be that of her mother. The accused also got recovered a pair of chappals from Chhounch khad which were taken into possession vide recovery memo Ext. PW-2/H. The chappal Ext. P-31 was also identified by PW-4 Sushma to be that of her mother. The recovery proceedings were photographed and videographed vide photographs Ext. PW- 11/D and CD Ext. PW-11/Q prepared. The spot map Ext. PW-19/H of the place of recovery of jewellery and chappals was prepared. In the Police Station, all the articles were handed over to MHC for safe custody in the malkhana.
6. On 28.11.2013, PW-19 Insp. Balbir Chand had moved an application Ext. PW-9/D to Tehsildar Indora for demarcation of the ::: Downloaded on - 29/09/2019 00:45:44 :::HCHP 7 spot where dead body was found lying. The demarcation was conducted on 30.11.2013 by Kanungo Ravi Kumar of Kotgarh. The report Ext. PW-9/A and the copy of Jamabandi Ext. PW-9/B along .
with tatima Ext. PW-9/C were supplied to the police. The case property was sent to FSL for analysis. On receipt of the reports Ext. PX-1 to PX-3 from the FSL, the same were added in the file. Certificate Ext. PW-12/C was obtained from the MHC and added in the file. On completion of the investigation, PW-19 Insp. Balbir Chand has prepared the challan and filed the same in the Court.
7. Learned Trial Judge, on going through the challan and the documents annexed therewith has found a prima-facie case for the commission of the offence punishable under Section 302 of the Indian Penal Code made out against the accused. Therefore, charge against him was accordingly framed. He, however, pleaded not guilty to the charge. The prosecution, therefore, has produced evidence in order to sustain the charge against him. The material prosecution witnesses are the complainant (PW-1 Pratap Singh), PW-4 Sushma (daughter of the deceased), PW-6 Santosh Kumari (elder daughter of the deceased) and PW-7 Ravinder Kumar (auto rikshaw driver). The other material witnesses are PW-2 Raj Kumar, a witness to the recovery of clothes of the deceased, PW-3 Bansi Lal, a witness to the recovery of ornaments etc., PW-5 SI Manohar Lal, again a witness to the recovery and PW-18 Surjeet Singh is the Pradhan of Gram Panchayat Mirthal. The Medical Officer, CH Nurpur is Dr. Mohan ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 8 Singh who initially conducted the post mortem of the dead body and sent the same to Dr. R.P.Medical College Tanda for expert opinion. The expert is Dr. Sushil Sharma, Asstt. Professor Forensic Science .
Department, Dr. R.P.Medical College Tanda. PW-9 Ravi Kumar, Revenue Official, has supplied the demarcation report, copy of Jamabandi and Tatima of the place of recovery of the dead body to the police. PW-11 Roshan Lal is a photographer. The remaining prosecution witnesses are official witnesses, including the I.Os PW- 17 SI Chain Singh and PW-19 Insp. Balbir Chand.
8. On the other hand, the statement of the accused under Section 313 Cr.P.C. was recorded. He has denied the incriminating circumstances appearing in prosecution evidence against him either being wrong or for want of knowledge. According to him, he is innocent and witnesses who were interested have deposed falsely against him. He, however, did not opt for producing evidence in support of his case.
9. The legality and validity of the judgment under challenge has been questioned on the grounds inter alia that without there being any iota of evidence to connect the accused with the commission of the offence, he could have not been convicted and sentenced. Nothing tangible has come on record to show that it is the accused alone and none else who has murdered Shanti Devi during the night intervening 16/17-11-2013. The evidence produced qua this aspect of the matter is stated to be not worthy of credence. ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 9 Learned Trial Judge has failed to consider the well established legal principles in the criminal administration of justice that the prosecution is required to prove its case against the accused beyond .
all reasonable doubt. The prosecution evidence in the case in hand irrespective of suffering from material contradictions, improvements and omissions has erroneously been relied upon to bring the guilt home to the accused. Learned trial Court has based its findings on contradictions, surmises and hypothesis. The impugned judgment, as such, has been sought to be quashed and set aside being both against law and facts of the case.
10. r We have heard Mr. Lakshay Thakur, Advocate, learned counsel appearing on behalf of the accused (appellant-convict) and Sh. Narender Guleria, learned Addl. Advocate General on behalf of the respondent-State.
11. Mr. Lakshay Thakur, Advocate has vehemently argued that the impugned judgment is not legally sustainable as the prosecution, according to him has failed to prove its case against the accused beyond all reasonable doubt. The prosecution story that the deceased was lastly seen on 16.11.2013 at 8:00 PM near a shop at Mirthal has not been proved at all. The prosecution evidence, on the other hand even if believed to be true, goes to show that on 16.11.2013 accused was away from the place of the complainant (PW-1) during the period 6:00 PM to 9:30 PM and after 9:30 PM, he remained only in his house till morning. Therefore, according to Mr. ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 10 Lakshay Thakur, Advocate, it was not possible for the accused to have visited Village Mirthal where PW-4 Sushma was residing in a rented accommodation with the deceased and after Sushma having .
left the rented accommodation on seeing the accused coming there, the latter accompanied by the deceased came to Kudson (Naudan) where he was working as labourer in the house of the complainant, that too along with household articles of the deceased and thereafter to murder the deceased also during the period of 3 ½ hours i.e. in between 6:00 PM to 9:30 PM. It has also been argued that as per the prosecution case, the deceased was not having cordial relations with her husband. They both were separate even in mess also. Therefore, according to Mr. Thakur, the possibility of the deceased was murdered by someone else and the accused being a resident of State of Bihar, hence, an outsider has been implicated in this case falsely at the behest of the prosecution witnesses none else but the public representative i.e. Pradhan, Up-Pradhan and Ward Members of the Gram Panchayat Kudson/Mirthal in order to save the real culprit from his prosecution cannot be ruled out.
12. The present, being a case of circumstantial evidence, the facts and circumstances established on record should be conclusive in nature and consistent only with the hypothesis of the guilt of the accused and not explainable on any other hypothesis except that the accused is guilty. No such opinion according to Mr. Thakur could ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 11 have been formed on the basis of the evidence produced by the prosecution in this case.
13. On the other hand, Mr. Narender Guleria, learned Addl.
.
Advocate General appearing on behalf of the respondent-State has urged that the prosecution case against the accused stands proved beyond all reasonable doubt. According to Mr. Guleria, the accused has failed to controvert the prosecution evidence qua the deceased was lastly seen with him in the evening on 16.11.2013. The recovery of ornaments and clothes etc. of the deceased consequent upon the disclosure statements made by the accused also connect him with the commission of the offence. It has also been argued that PW-4 Sushma, the daughter of the deceased was wife of the accused. Their relations were strained and it is for this reason, the accused killed her mother, the deceased.
14. In order to appreciate the rival contentions of the parties, we have gone through the record carefully.
15. The present being not a case of direct evidence and rather hinges upon circumstantial evidence casts an onerous duty on this Court to find out the truth by separating grain from the chaff. In other words, it has to be determined that the facts of the case and the evidence available on record constitute the commission of an offence punishable under Section 302 IPC against the accused or not. However, before coming to answer this poser, it is desirable to take note of legal provisions constituting an offence punishable ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 12 under Section 302 IPC. A reference in this regard can be made to the provisions contained under Section 300 IPC. As per the Section ibid, culpable homicide is murder firstly if the offender is found to have .
acted with an intention to cause death or secondly with an intention of causing such bodily injury knowing fully well that the same is likely to cause death of someone or thirdly intention of causing bodily injury to any person and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if it is known to such person that the act done is imminently so dangerous that the same in all probability shall cause death or such bodily injury as is likely to cause death.
16. Culpable homicide has been defined under Section 299 IPC. Whoever causes death by way of an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death can be said to have committed the offence of culpable homicide. Culpable homicide is murder if the act by which death is caused is done with the intention of causing death. Expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degree. We are drawing support in this regard from the judgment of Apex Court in Jagriti Devi vs. State of Himachal Pradesh, AIR 2009 SC 2869.
17. The ingredients of culpable homicide amounting to murder, therefore, are: (i) causing death intentionally and (ii) causing ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 13 bodily injury which is likely to cause death. In case the accused had motive to cause death of deceased, the eye witness count of the occurrence may not be required, however, where the motive is .
missing, the prosecution is required to prove its case with the help of the testimony of eye witnesses.
18. The present being a case of circumstantial evidence, the Court seized of the matter has to appreciate such evidence with all care and circumspection and rely upon only if establishes the guilt of the accused alone and rule out all possibilities leading to the presumption of innocence of the accused. The law is no more res integra as support can be drawn from the judgment of a Division Bench of this Court in Sulender vs. State of H.P., Latest HLJ 2014 (HP) 550. The relevant extract of this judgment reads as follows:
[21] It is well settled that in a case, which hinges on circumstantial evidence, circumstances on record must establish the guilt of the accused alone and rule out the probabilities leading to presumption of his innocence. The law is no more res integra, because the Hon'ble Apex Court in Hanumant Govind Nargundkar Vs. State of M.P, 1952 AIR(SC) 343 has laid down the following principles:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 14 accused and it must be such as to show that within all human probability the act must have been done by the accused."
[22] The five golden principles, discussed and laid down, .
again by the Hon'ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 4 SCC 116, are as follows:
(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 the accused, that is to say, they should not be explainable on any other r 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."
19. Similar is the ratio of the judgment rendered again by this Bench in State of Himachal Pradesh vs. Rayia Urav @ Ajay, ILR 2016 (5) (HP) 213. The relevant text of this judgment also reads as follows:
"[10] As noticed supra, there is no eye-witness of the occurrence and as such, the present case hinges upon the circumstantial evidence. In such like cases, as per the settled proposition of law, the chain of circumstances appearing on record should be complete in all respects ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 15 so as to lead to the only conclusion that it is accused alone who has committed the offence. The conditions necessary in order to enable the court to record the .
findings of conviction against an offender on the basis of circumstantial evidence have been detailed in a judgment of this Court in Devinder Singh V. State of H.P, 1990 1 Shim LC 82 which reads as under:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. 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 guilt.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved AND
5. 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.
[11] It has also been held by the Hon'ble Apex Court in Akhilesh Halam V. State of Bihar, 1995 Supp. SCC 357 that the prosecution is not only required to prove each and every circumstance as relied upon against the accused, but also that the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant portion of this judgment is reproduced here-as-under:-
" ............It may be stated that the standard of proof required to convict a person on circumstantial evidence ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 16 is now settled by a serious of pronouncements of this Court. According to the standard enunciated by this court the circumstances relied upon by the prosecution in support of the case must not only be fully established but the chain of evidence furnished by those .
circumstances must be so complete as not to leave any reasonable ground for as conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt of an accused is to be inferred, should be conclusive nature and consistent only with the hypothesis of the guilt of the accused and the same should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together lead to the only irresistible conclusion that the accused is the perpetrator of the crime.........."
20. This Court has again held in State of Himachal Pradesh Vs. Sunil Kumar, Cr. Appeal No. 326 of 2011 decided on 15.6.2017 as under:
"13. It is more than settled that in case of circumstantial evidence, the circumstances from which inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un-erringly pointing out towards the guilt of the accused.
iii) The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 17 was committed by the accused.
14. Equally well settled is the proposition that where the entire prosecution case hinges on .
circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
15. In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl.
(1) SCC 173)."
21. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:
"150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
... ... ... ... ... ...
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 18 additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
.
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
22. Now, if adverting to the prosecution case, the accused is permanent resident of Bihar and had come to earn his livelihood. He was unmarried before his marriage with PW-4 Sushma, the daughter of the deceased. PW-4 Sushma, a divorcee had solemnized the marriage with the accused allegedly after she had given divorce to her previous husband Sukhdev. No documentary evidence has come on record to substantiate that PW-4 Sushma had divorced her previous husband Sukhdev. Anyhow, her marriage with the accused stands established on record because not only she while in the witness-box as PW-4 but PW-1 the complainant and PW-2 Raj Kumar have also stated so while in the witness-box and the accused has also admitted while answering question No. 2 of his statement recorded under Section 313 Cr.P.C. that he is married to PW-4 Sushma. They started living in rented accommodation hired from one Jeet Singh at Village Mirthal. This part of the prosecution case also stands proved from the testimony of PW-4 Sushma and also his answer to question No. 2 in his statement recorded under Section 313 Cr.P.C. The ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 19 accused as per the statement of the complainant PW-1 Pratap Singh had been working as labourer with him. He came to him on 15.11.2013 with a request to reemploy him. PW-1 Pratap Singh .
acceded to his request and reemployed the accused as labourer with him. PW-4 Sushma has also stated that accused was known to her as he was working with PW-1 Pratap Singh, the complainant of Village Naudan (Kudsan). No suggestion that the accused was not working with PW-1 Pratap Singh as labourer in his fields has been given either to PW-1 Pratap Singh or PW-4 Sushma. If reply to question NO. 14 in his statement recorded under Section 313 Cr.P.C.
is seen,
rthe accused has expressed his ignorance to the
circumstances that on 15.11.2013, he went to Pratap Singh for reemployment and on 17.11.2013 at about 10 am went with PW-1 Pratap Singh for sowing fields. Had he not been working as labourer with PW-1 Pratap Singh, he should have denied such incriminating circumstances appearing against him in the prosecution evidence being wrong. His ignorance thereto leads to the only conclusion that he avoided to give correct answer to question No. 14 intentionally and deliberately. Therefore, the factum of he was engaged as labourer and working in the fields of PW-1 Pratap Singh is also proved on record.
23. The further case of the prosecution as has come in the statement of PW-4 Sushma that after about 10-15 days of her marriage with the accused he assaulted her with belt and on this she ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 20 reported the matter to Surjeet Singh Pradhan, Gram Panchayat Mirthal, PW-4 Sushma in her cross-examination has expressed her ignorance as to which Pradhan she reported the matter after having .
been assaulted by the accused. Though, it finds corroboration from her statement and even PW-18 Surjeet Singh has also stated so while in the witness box, the matter, however, was reported to the police of Police Post Nangal Bhur (Punjab) is not proved irrespective of stated so by PW-4 Sushma and PW-18 Surjeet Singh. The same, however, is not proved beyond all reasonable doubt for want of the record of Police Post Nangal Bhur (Punjab). Since as per the version of PW-18 Surjeet Singh, the police had come to the spot and taken the accused to the Police post, the record thereof would have been available with the police. However, Investigating Officers have not made any effort to collect the same and produce in evidence. Therefore, the further case of the prosecution that due to the beatings given by the accused to PW-4 Sushma and she went to the house of her sister PW-6 Santosh Kumari at Gurdaspur is also doubtful irrespective of it is stated so by PW-4 Sushma. PW-6 Santosh Kumari has, however, not stated that after beaten up by the accused, PW-4 Sushma came to Gurdaspur to her house. She rather stated only that on 16.11.2013, the accused had a quarrel with her sister and she, therefore, had left the house only with a bag with her. Therefore, PW-6 Santosh Kumari has not stated that after the so called episode of 16.11.2013 in the rented accommodation at Mirthal, her sister PW-4 Sushma came to ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 21 her at Gurdaspur though PW-4 Sushma had stated that after spending the night on the roof of the house of a Kumhar at Naudan, she went to the house of her sister at Gurdaspur. Therefore, it is .
also not proved beyond all reasonable doubt that on 16.11.2013 when the accused came to the rented accommodation at Mirthal, PW- 4 Sushma on seeing him coming there left that place with a bag and went to Gurdaspur to the house of her sister PW-6 Santosh Kumari. The further case of the prosecution is that it is the accused and the deceased who were alone left in the house after the departure of PW- 4 Sushma there from. This part of the prosecution case shall be discussed herein below in this judgment.
24. What are the incriminating circumstances appearing in the prosecution evidence against the accused find mention in para 14 of the judgment of the learned trial Court. The same read as follow:
"14.(i).On 16.11.2013 the accused was last seen with his mother-in-law Shanti Devi in the evening.
(ii). The accused used to hurl threats to Shanti Devi to do away with her life.
(iii). Recovery of dead body of Shanti Devi from the field of the complainant and subsequent conduct of the accused.
(iv). Recovery of clothes, ornaments and a pair of
Chappals of Shanti Devi on the disclosure
statement of the accused.
(v). Recovery of weapon of offence."
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22
25. Learned trial Judge, on appreciation of the evidence has concluded that these circumstances stand proved beyond all reasonable doubt and the chain is complete in all respects. Also that .
only inescapable conclusion is that it is the accused alone who had killed the deceased during the night intervening 16/17.11.2013 with stone Ext. P-3 in the fields of PW-1 Pratap Singh, the complainant. Whether the conclusion so drawn by learned trial Judge is legally and factually sustainable is a question which needs reappraisal of the given facts and circumstances and also the evidence available on record.
26. The first two circumstances can be taken up together for consideration. The evidence that the accused had been hurling threats to deceased Shanti Devi to do away with her life has come on record by way of testimony of PW-4 Sushma. According to her, the accused killed her mother as he had been hurling threats to do away with her life as she (PW-4 Sushma) had refused to live with him. This part of her testimony, however, is an improvement as nothing of the sort has come in her statement recorded under Section 161 Cr.P.C. and to the contrary she only suspected the hands of the accused in killing her mother as according to her, the accused had been hurling threats that he will flee away after killing someone and it will not be possible to anyone to trace him out or apprehend. The statement under Section 161 Cr.PC. of PW-4 Sushma rather gives an impression that her mother, the deceased had been insisting upon ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 23 her not to abandon the company of the accused and live with him. Also that she will also to live with them. No other witness has supported this part of the prosecution case because PW-6 Santosh .
Kumari, another daughter of deceased, though stated that she came to know about the murder of her mother by the accused, however, without there being anything on record suggesting as to what is her source of information. Therefore, in our considered opinion, learned trial Judge is not correct in placing reliance on the sole testimony of PW-4 Sushma, which in view of the findings recorded hereinabove is otherwise also an improvement qua her earlier version.
27. r Now, if coming to the prosecution case that the accused and deceased were lastly seen in the company of each other in the evening on 16.11.2013 besides the statement made by PW-4 Sushma that she left the rented accommodation at Mirthal, the moment the accused arrived there leaving behind the accused and her mother alone there, the reliance has also been placed on the testimony of PW-7 Ravinder Kumar, auto rikshaw driver. What PW-7 Ravinder Kumar tells us while in the witness-box is that he had come to Kathgarh and while going to his house in his auto rikshaw when reached near Toll Tax Barrier around 7:00 PM, one man and one lady carrying household articles hired his auto for Naudan. The lady was addressing that person as Mohan and said Mohan according to this witness was saying that his wife had left him. He dropped them at Naudan. He has also identified the accused in the Court. He ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 24 admitted in his cross-examination that it was dark at that time. Therefore, it is not known as to how it can be believed that this witness had well recognized the accused and also the lady with him.
.
Otherwise also, after a period about 2 years, as he has been examined in the Court on 24.9.2015, a person travelled in his Auto only for once that too during night time, how he could have identified him and that too in the Court. PW-7 Ravinder Kumar, therefore, seems to be a stock witness. Above all, when he has said nothing in his examination-in-chief that the accused and that lady had been quarreling in the Auto, his testimony to this effect in the cross- examination itself speaks in plenty about its veracity. Therefore, it cannot be believed by any stretch of imagination that this witness had seen the deceased in the company of the accused on that day.
28. We have already discarded the prosecution case that on 16.11.2013, on seeing the accused in the rented accommodation at Mirthal, PW-4 Sushma went therefrom to the house of her sister PW- 6 Santosh Kumari being not supported by the evidence. Otherwise also, on one hand, according to PW-4 Sushma, she went to Village Naudan and spent the night on the roof of the house of a Kumhar there and in the morning (17.11.2013) went to the house of her sister at Gurdaspur. It is on the same day, they received the call that the dead body of their mother is lying in the fields in naked condition. At what time, she reached in the house of her sister that too when her sister Santosh Kumari has not said anything qua she having come ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 25 there while in the witness-box as PW-6 renders the prosecution story that on leaving the rented accommodation by PW-4 Sushma, it is only the accused and her mother, the deceased who alone were left .
there is highly improbable.
29. Interestingly enough, PW-1 has stated in his examination-in-chief that on the previous day he had seen the deceased and the accused in the shop at Bhia Indorian. However, for want of date and time of his seeing both of them at Bhia Indorian, which he has not mentioned in his statement, such version of this witness being absurd and vague, takes us to nowhere nor it is possible to form an opinion that he had seen the deceased and the accused in the company of each other at Bhia Indorian. It is again interesting to note that as per the version of PW-1 Pratap Singh, he suspected that the accused killed Shanti Devi during the night intervening 16/17.11.2013 and thrown her dead body in his field thereafter. Nothing to this effect has, however, come in his statement Ext. PW-1/A recorded under Section 154 Cr.P.C. His suspicion, therefore, is nothing but merely an afterthought. Otherwise also, when cross-examined, it is stated by him that on previous day (on 16.11.2013), the accused was with him, however, stated voluntarily that he had not been with him in between 6:00 PM to 9:30 PM on 16.11.2013 and after 9:30 PM during the night intervening 16/17.11.2013 till morning he was in his house throughout.Therefore, even if the version of PW-1 Pratap Singh that the accused was not in ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 26 his house between 6 to 9:30 PM on 16.11.2013 is believed, in that event also, it cannot be said by any stretch of imagination that during his absence for about 3 ½ hours from the house of PW-1 .
Pratap Singh, he could have visited the rented accommodation of PW-4 Sushma, allowed his wife PW-4 Sushma going away from there, picking the household articles and having come to Mirthal bus stand with Shanti Devi (deceased), hired the auto rikshaw there and came to Naudan (Kudson), it is thereafter he murdered the deceased and not only made her nude but also removed her jewellery and left the dead body along with the so called weapon of offence, the stone Ext. P-3. All this was not possible for the accused to have done within the short period of 3 ½ hours when he was absent from the house of the complainant. Had the deceased been assaulted by him on her head with stone Ext. P-3, it was somewhat natural for her to have struggled to save herself from him and even would have raised alarm also because the place of occurrence is the field of PW-1 Pratap Singh which for want of the evidence to the contrary can reasonably be believed to be nearby the house of PW-1 Pratap Singh. In view of the absence of the accused from the house of PW-1 Pratap Singh for a short duration i.e. from 6:00 PM to 9:30 PM, he would have not taken the risk to kill her because of the apprehension of being seen by someone as till 9:30 PM, the people normally do not sleep. It is for this reason also in that the spot map Ext. PW-17/B of the place of recovery of the dead body, the distance of village/house of ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 27 complainant has not been mentioned though his pump house and Jai Shankar Stone Crusher in existence nearby the place of recovery do find mention therein.
.
30. The existence of the pump house and in that very field, the orange trees and in the adjoining field crop of sugarcane shown lead to the only conclusion that the house of PW-1 Pratap Singh, the complainant or village was also situated nearby. Therefore, there is no iota of evidence to show that it is the accused alone and none else who has killed deceased Shanti Devi. He, to our mind, seems to be falsely implicated in this case.
31
r As per the prosecution evidence, the relations of deceased Shanti Devi were not cordial with her husband Bishambar Dass. Athough PW-2 Raj Kumar while in the witness-box has stated that the deceased had been living with her husband in the same room, however, according to him, they both were having their food separately. Similar is the statement of PW-4 Sushma because according to her also though her parents were residing under the same roof, however, maintaining separate kitchens. In her cross- examination, she has admitted that the relations of her parents are strained. It is unbelievable that husband and wife residing under the same roof/room are separate in mess. On the other hand, as per the statement of PW-1 Pratap Singh, the deceased was living separately from her husband. Anyhow, it is satisfactorily proved from such evidence produced by the prosecution itself that the relations of ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 28 deceased and her husband were not cordial. Said Bishambar Dass, the husband of the deceased, though was associated in the investigation of the case i.e. at the state of alleged recovery of the .
clothes/ornaments is one of the signatories to the recovery memo Ext. PW-2/H. The prosecution, however, has not examined him as a witness in the Court, may be under the apprehension of he was to be exposed by learned defence counsel during the course of cross- examination qua his relations with his wife, the deceased. Such an approach on the part of the prosecution also renders the prosecution story qua the murder of the deceased by the accused is highly improbable. On the other hand, the possibility of she was murdered by someone else and there may be hand of Bishambar Dass, her husband cannot be ruled out.
32. Therefore, in view of the appraisal of the evidence hereinabove, neither the prosecution story that the deceased was seen lastly in the company of the accused is proved nor that it is the accused who has murdered her in the field of PW-1 Pratap Singh, the complainant during the night intervening 16/17-11.2013. The findings to the contrary recorded by learned trial Judge, therefore, deserves to be quashed and set aside.
33. Now, if coming to the 4th and 5th circumstances i.e. recovery of clothes, ornaments and a pair of chappal of Shanti Devi allegedly on the disclosure statement made by the accused again, there is no grain of truth therein for the reason that disclosure ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 29 statement Ext. PW-2/C allegedly has been made by the accused while in custody in the Police Station. The witness thereto is PW-2 Raj Kumar, who is none else but the husband of Rani Devi, the .
Pradhan of Gram Panchayat Kudson (Naudan), the area where the dead body of deceased was lying in the field. Nothing has come in the statement of PW-2 Raj Kumar, a witness to the disclosure statement Ext. PW-2/C as to whether he was present in the Police Station at the time when the accused has made the alleged disclosure statement. In what connection he had gone there again nothing has come in his statement. As a matter of fact, in order to prove the disclosure statement, the person having witnessed the same must also state the purpose of his visit to the Police Station. Nothing of the sort has come in his statement. The reading of his statement rather gives an impression that on 17.11.2013, when he came to know that the dead body of Shanti Devi was lying in the field of PW-1 Pratap Singh, he also went there and witnessed the recovery of jean pants, T-shirt of the accused and stone Ext. P-3. The disclosure statements Ext. PW-2/C and Ext. PW-2/F as well as the recoveries consequent upon that were effected on that very day i.e. 17.11.2013, however, he has not stated that on 24.11.2013, when disclosure statement Ext. PW-2/C and on 26.11.2013 when disclosure statement Ext. PW-2/F was recorded, he was in the Police Station in connection with some work there or otherwise called by the police. The disclosure statements Ext. PW-2/C and Ext. PW-2/F, ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 30 both have, therefore, been not proved to be made by the accused in the Police Station while in custody.
34. It has been held by the apex Court in Geejaganda .
Somaiah vs. State of Karnataka, 2007(9) SCC 315, that a confession made by an accused to a Police Officer under Section 25 of the Indian Evidence Act cannot be proved against him. Similarly, the confession made by the accused under Section 26 of the Evidence Act while in custody cannot also be proved against him. However, the disclosure statement made under Section 27 of the Evidence Act relates distinctly to the facts thereby discovered and may be proved against the accused. The statement made under Section 27 of the Act leading to the discovery of facts exclusively in the knowledge of the maker and if such facts ultimately discovered in consequence of the statement so made, some guarantee should be there that the information was true and therefore, the same can be relied upon in evidence. Such link evidence is not proved in the case in hand because it is not proved at all that the statements were recorded in the Police Station in the presence of PW-2 Raj Kumar at a stage when the accused was in police custody. Being so, the recovery of kameez Ext. P-12, salwar Ext. P-13, sweater Ext. P-14, banyan Ext. P-15 and dupatta Ext. P-16 consequent upon the disclosure statement Ext. PW-2/C is highly doubtful. No doubt, the same were taken into possession vide recovery memo Ext. PW-2/E in the presence of PW-2 Raj Kumar and also Rani Devi and PW-5 SI ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 31 Manohar Lal. Rani Devi has, however, not been examined. PW-5 SI Manohar Lal, though has appeared in the witness-box, however, being a police official, it is not safe to place reliance on his testimony .
particularly when the disclosure statement Ext. PW-2/C has not been made by the accused in the manner as claimed by the prosecution.
35. Now, if coming to the disclosure statement Ext. PW-2/F, discussed hereinabove made by the accused and recovery of mobile battries Ext. P-20 and P-21, mobile Sim (Idea) Ext. P-22, Airtel Sim Ext. P-23, Payal Ext. P-24, Mangal sutra Ext. P-25, rings Ext. P-26 and Ext. P-27, ear rings Ext. P-28, currency notes worth Rs. 40/- Ext. P-29 and photos Ext. P-30, the same is also not proved in accordance with law because when the disclosure statement Ext. PW-2/F itself is not proved in accordance with law, the recovery of the articles hereinabove and the question of recovery of the above articles on the basis thereof does not at all arise. The recovery of the chappal Ext. P-31 is also not proved. PW-4 Sushma, one of the witnesses to the recovery memo Ext. PW-2/H has only supported the prosecution case qua recovery of ornaments and chappal of the deceased and not qua the other articles such as battries and mobile Sims etc. Another witness to this memo, Bishambar Dass (husband of the deceased) has not been examined by the prosecution to the reasons best known to it. Otherwise also, the place(s) of recovery as per the site plans Ext. PW-17/B and Ext. PW-19/A are near and ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 32 around the place of recovery of the dead body shown in the site plan Ext. PW-17/B. These articles were recovered on 24.11.2013 and 26.11.2013, respectively, hence after 7-8 days of the recovery of the .
dead body. It was expected from the I.O. to have inspected the area near and around the place of recovery of the dead body to have some clue about the occurrence and had it been so done, these articles kept in open could have otherwise been traced. Therefore, had the investigation been conducted in a fair manner, the I.O. would have come in contact with these articles.
36. Similarly, the recovery of jean pants Ext. P-18 of the accused pursuant to the so called disclosure statement Ext. PW-2/E is also not proved as nothing in the presence of PW-2 Raj Kumar on that day has come on record. The recovery of the domestic articles mentioned in the memo Ext. PW-3/A i.e. quilt, mat, blanket, shawl and old clothes, allegedly that of the deceased is also of no help to the prosecution case for the reason that the same were recovered from an open place i.e. beneath banyan tree at Panjbir Baba temple Kudsan. PW-3 Bansi Lal, a witness to the recovery memo Ext. PW- 3/A has admitted that these articles were that of the deceased, is not known to him. Also that, such articles are generally available everywhere.
37. In a similar case where the disclosure statement made and discovery of articles from an open area like the case in hand ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 33 made after more than ten days, the Apex Court in Mani vs. State of Tamil Nadu, 2009(17) SCC 273, has held as under:
.
"20...............This was nothing but a farce of discovery and could never have been accepted particularly because all the discovered articles were lying bare open barely 300 feet away from the body of the deceased Sivakumar. Even this witness had to admit that he never enquired as to in whose name the house of Mani stand. He claims that P.W.14 had done the same whereas P.W.14 is completely silent about such investigation. It is, therefore, obvious this discovery could have never been accepted by both the courts below & both the court have completely ignored this vital admission. It need not be stated that where the discovery of the relevant articles have been made from the open ground though under the bush, that too after more than 10 days of the incident, such discovery would be without any credence. It does not stand to any reasons that the concerned investigating officer did not even bother to look hither and r thither when the dead body was found. We are, therefore, not prepared to accept such kind of farcical discovery which has been relied by the courts below without even taking into consideration the vital facts which we have shown above.
21. The discovery is a weak kind of evidence and cannot be wholly 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. ............"
38. Similar is the ratio of the judgment of the apex Court in Vijay Thakur vs. State of Himachal Pradesh, 2015(1) SCC (Cri.) 454 = 2014(Sup.) Him. L.R. 2308, which reads as follows:
"12. Coming to the alleged disclosure of the appellant Vijay Kumar, a discovery of jacket (Exhibit P-5) is attributed to him. This recovery was sought to be proved from the statement of PW-23, who has said that appellant Vijay Kumar had made a disclosure statement that he had kept the jacket in his house and the statement was recorded as Exhibit PW-3/C. However, in his cross- examination, he has admitted that document Exhibit PW-3/C was prepared 10- 15 minutes prior to the recovery of clothes and he was not there when recovery ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 34 was effected. He had seen the clothes when they were with the Police. Therefore, recovery of jacket on the disclosure statement made by accused Vijay Kumar also becomes doubtful. In such circumstances, it would be too risky to convict these two appellants solely on the basis of alleged disclosure, .
which recovery is also shrouded with elements of doubts. As already discussed above, there is no other circumstance which relate these two appellants to the commission of the offence."
39. In view of the well established legal principles, the prosecution case qua recoveries having been effected pursuant to the disclosure statements made by the accused is also not proved in accordance with law.
40. If coming to the recovery of T-Shirt Ext. P-1, vide memo Ext. PW-1/B, stone Ext. P-3, sample of soil Ext. P-5, box Ext. P-6 vide recovery memo Ext. PW-2/A, no doubt, the same is supported by PW-3 Bansi Lal, one of the attesting witnesses to Ext. PW-1/B and PW-2 Raj Kumar to the memo Ext. PW-2/A, however, the recovery so made cannot be used against the accused when it is not proved that he has murdered the deceased with stone Ext. P-3.
41. Therefore, the recovery of clothes, ornaments and chappals and weapon of offence etc. made in this case is also of no help to the prosecution.
42. The last and 5th circumstance is the recovery of dead body of Shanti Devi and the so called subsequent conduct of the accused. The dead body of deceased in naked condition is not proved from the field of PW-1 Pratap Singh, the complainant for the reason that the lady who firstly has seen the dead body lying there has not ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 35 been associated with the investigation of the case nor cited as witness. Though, as per the statement of PW-1 Pratap Singh in his cross-examination that lady is sister-in-law of Surjeet (PW-18), he, .
however, expressed his inability to tell her name. According to him, they call her by nickname "Gole". As a matter of fact, it is the said lady, would have substantiated this aspect of the case more effectively and judiciously. She, however, has not been examined by the prosecution to the reasons best known to it. Therefore, the story of the dead body lying in the field of the complainant PW-1 Pratap Singh is also doubtful. No doubt, it is stated so by PW-1 Pratap Singh, the complainant and PW-2 Raj Kumar and the spot map Ext. PW-17/B has also been relied upon by the police, however, the non- examination of the lady who had informed PW-1 Pratap Singh about the dead body lying in his field casts doubt on the prosecution story in this regard. Therefore, the recovery of the dead body in the manner as claimed by the prosecution is also not proved beyond all reasonable doubt.
43. In order to substantiate its case qua subsequent conduct of the accused, reliance has been placed by the prosecution on the statement of PW-1 Pratap Singh, the complainant. No doubt, PW-1 Pratap Singh has stated so that on coming to know about the dead body of Shanti Devi lying in his fields, the accused ran away. Even if it is believed to be so and that the accused having murdered the deceased during the night intervening 16/17-11.2013 and thrown ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 36 her dead body in the nearby fields, firstly he would have run away from that place and secondly not come to the field of PW-1 Pratap Singh for working there. A mere sentence in the statement of PW-1 .
Pratap Singh is not sufficient to arrive at a conclusion that the accused had absconded on hearing about the dead body of Shanti Devi lying in the fields. He, being an outsider seems to have been framed falsely to save the real culprit and the police having failed to trace out any clue about the real culprit.
44. The medical evidence in the form of post mortem report Ext. PW-8/A and Ext. PW-10/C and also the statements of Dr. Mohan Singh (PW-8), Medical Officer, CH Nurpur and PW-10 Dr. Susheel Sharma, Asstt. Professor, Department of Forensic Medicine, Dr. R.P. Medical College, Tanda reveal that the cause of death of Shanti Devi (deceased) was the injuries ante mortem on her skull caused by forceful impact of some blunt weapon. The stone Ext. P-3 as per such evidence available on record can be the weapon of offence. However, nothing tangible has come on record to suggest that it is the accused who inflicted such injuries on her person intentionally and deliberately and knowing fully well that the same are likely to cause her death. The reports received from Forensic Science Laboratory Ext. PX-1 to PX-3 reveal that blood stains were on the clothes of the deceased Shanti Devi, however, no semen could be detected thereon. The blood sample was found to be human blood of group "B". No blood, however, was detected on the jean pants and ::: Downloaded on - 29/09/2019 00:45:45 :::HCHP 37 T-shirt of the accused. Therefore, such scientific investigation conducted is also not suggestive of that the accused has murdered the deceased.
.
45. The evidence as has come on record by way of statements of official witnesses also does not connect the accused with the commission of the offence. Otherwise also, such evidence could have been used as a link evidence had the prosecution been otherwise able to bring guilt home to the accused, hence need not to be discussed any further.
46. In view of the discussion hereinabove, we are satisfied that the present is a case of sketchy evidence against the accused. Whatever evidence having come on record by way of statements of PW-1 Pratap Singh, PW-2 Raj Kumar and PW-4 Sushma cannot be relied upon against the accused as they are interested witnesses. The evidence as has come on record by way of their respective testimony is otherwise also inconsistent and contradictory in nature. They even have improved their previous version. Learned trial Court, as such, has not appreciated the evidence available on record in its right perspective and to the contrary recorded its findings on the basis of conjectures and surmises. Such an approach has certainly resulted in miscarriage of justice to the accused. He has been convicted while placing reliance on highly inadmissible evidence. The impugned judgment, as such, is neither legally nor factually sustainable.
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47. Consequently, this appeal succeeds and the same is accordingly allowed. The accused is acquitted of the charge under Section 302 IPC framed against him. The accused is serving out the .
sentence. He be set free forthwith, if not required in any other case, however, on verification of his antecedents i.e. name, parentage, permanent residential address in the State of Bihar and on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of learned trial Judge. The bonds so executed shall, however, remain in force for a period of six months. The Registry to prepare the release warrants accordingly. The amount of fine, if already deposited, be refunded to the accused against proper receipt.
(Dharam Chand Chaudhary), Judge.
July 15, 2019. (Vivek Singh Thakur),
( )
karan- Judge.
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