Himachal Pradesh High Court
Hikmat Bahadur vs State Of Himachal Pradesh on 19 September, 2017
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
1
HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
Cr. Appeal No.242 of 2016
alongwith
Cr. Appeal No.215 of 2016
Reserved on: 20.06.2017
Decided on: September 19, 2017
Cr. Appeal No.242 of 2016:
Hikmat Bahadur ..........Appellant
Versus
State of Himachal Pradesh
r ........Respondent
________________________________________________________
Cr. Appeal No.215 of 2016:
Narain Singh Chauhan ..........Appellant
Versus
State of Himachal Pradesh ........Respondent
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes.
Cr. Appeal No.242 of 2016:
For the appellant : Mr. S.S. Rathore, Advocate.
For the respondent : Mr. D.S. Nainta & Mr. Virender Verma, Additional Advocate Generals.
Cr. Appeal No.215 of 2016:
For the appellant : Mr. Surender Sharma, Advocate.1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 2
For the respondent : Mr. D.S. Nainta & Mr. Virender Verma, .
Additional Advocate Generals.
Dharam Chand Chaudhary, J.
This judgment shall dispose of the present appeal and also the connected one, i.e. Criminal Appeal No.215 of 2016, having arisen from the judgment dated 02.05.2016, passed in Sessions Trial No.38-S/7 of 2017, passed by learned Additional Sessions Judge-II, Shimla, whereby both convicts-appellants, i.e. Hikmat Bahadur and Narain Singh Chauhan (hereinafter are called as accused No.1 and accused No.2), have been convicted and sentenced. Accused No.1 Hikmat Bahadur, in the present appeal, has been convicted for commission of offence punishable under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay Rs.1,00,000/- as fine and in default of payment of fine to undergo simple imprisonment for three years, whereas accused No.2 Narain Singh Chauhan, in the connected appeal, has been convicted for commission of offence punishable under Section 25 of Indian Arms Act and sentenced to undergo rigorous imprisonment for three years and ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 3 also to pay Rs.25,000/- as fine and in default of payment of fine .
to undergo simple imprisonment for six months.
2. PW-12 Mast Ram belongs to village Dhawandli, Tehsil Chopal, District Shimla. He had two apple orchards i.e. one at village Dhawandli and the other at Pouran. In order to look after his orchard at village Pouran, deceased Dil Bahadur, a Nepali National, was deployed as Chowkidar on payment of Rs.2,500/-
per month.
3. On 18.05.2014, PW-12 Mast Ram, while on his way to Chandigarh for medical check up of his son, around 11.30 a.m., he received a telephonic call from his neighbour Narain Singh Chauhan (convict-appellant in connected appeal), who informed that deceased Dil Bahadur and accused No.1 Hikmat Bahadur had quarrelled with each-other. On this, he called deceased Dil Bahadur who informed that accused No.1 has fired a gunshot on him and thereby caused bullet injury to him. On hearing so, PW-
12 Mast Ram, immediately informed his brother-in-law PW-1 Satish Kumar and asked him to visit the spot. PW-1 Satish Kumar, in turn, went to the spot and informed PW-12 that deceased Dil Bahadur had succumbed to the injuries inflicted to ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 4 him. PW-12 Mast Ram allegedly informed the police of Police .
Station, Nerwa, also at about 12.30 p.m. over telephone. After arrival of PW-1 Satish Kumar, alongwith one Mr. Sanjeev, at the spot, a police party headed by PW-23, SI/SHO Jasbir Singh, comprising of HC Sant Ram, HHC Virender Chand, HHC/Driver Madan Lal and PW-11 Constable Sameer Kant, rushed to the spot in official vehicle. Deceased Dil Bahadur was lying in a critical condition. He had received gunshot injury and was lying in pool of blood. The villagers had also gathered by that time on the spot.
The deceased though was being shifted to hospital, however, he succumbed to the injuries he received on the way to hospital.
The statement Ext.PW-1/A of PW-1 Satish Kumar was recorded under Section 154 of the Code of Criminal Procedure. The Rukka Ext.PW-11/A was prepared and handed over to PW-11 Constable Sameer Kant for being taken to Police Station for the purpose of registration of case. PW-11 Constable Sameer Kant has handed over the Rukka to PW-18 LHC Shamim, the then MHC in Police Station, Nerwa. On registration of F.I.R. Ext.PW-16/A, the file was handed-over to PW-11 Constable Sameer Kant, who has taken the same to the Investigating Officer. The Investigating Officer PW-
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 523 SI Jasbir Singh, has prepared the site plan of the place of .
occurrence Ext.PW-23/A. The photographs Ext.PW-15/A-1 to Ext.PW-15/A-24 were clicked. The blood stained soil and grass from the place of occurrence were taken into possession in presence of PW-1 Satish Kumar and Sanjeev Kumar vide seizure memo Ext.PW-1/C. The sample of seal Ext.PW-1/B was drawn separately. The dead body was brought to CHC Nerwa. The inquest papers Ext.PW-23/B were filled in. Accused No.1 was arrested and the dead body was kept in the dead-house.
4. On the next day, i.e. 19.05.2014, PW-16 ASI Kalyan Singh and PW-6 LHC Suresh were deputed to Indira Gandhi Medical College, Shimla, for getting the post mortem of the dead body conducted. PW-16 ASI Kalyan Singh had clicked the photographs Ext.PW-15/A-3 and Ext.PW-15/A-4 with his cell phone. After getting the post mortem of the dead body conducted vide post mortem examination report Ext.PW-5/C, the same was handed over to one Virender for performing last rites.
5. On 20.05.2014, accused No.1 Hikmat Bahadur, allegedly made a disclosure statement Ext.PW-18/B that he has hided the gun in a field nearby the spot and Drat inside his Dera ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 6 and that it is he who alone who can get the same, recovered in .
the presence of PW-18 LHC Shamim and PW-20 HHC Virender Sharma. The Investigating Officer PW-23, SI Jasbir Singh alongwith HHC Virender Sharma, Constable Sunil and Driver Madan, accompanied by the witnesses, went to the spot. On the identification given by the accused, the gun was recovered from "Maind /boundary" of field, which was kept inside the grass. The identification memo Ext.PW-2/D was prepared in presence of PW-
2 Raghuvir Singh and Bir Singh. The Khaka of gun Ext.PW-2/A was also prepared. The photographs Ext.PW-2/J to Ext.PW-2/L were clicked. The site plan of the place of recovery Ext.PW-23/C was prepared. The gun was thereafter sealed and taken into possession vide seizure memo Ext.PW-2/B. The 'Drat' found to be hidden by the accused below the pillow cover in his 'Dera' was also taken into possession vide recovery memo Ext.PW-2/F. The identification memo Ext.PW-2/G was again prepared in presence of PW-2 Raghuvir Singh and Bir Singh. The Khaka of 'Drat' Ext.PW-2/E was separately prepared.
6. The case property was deposited with MHC for safe custody in Police Malkhana. All the incriminating articles were ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 7 sent to Forensic Science Laboratory, Junga, through PW-17 .
Constable Rajneesh vide R.C.24/2014 Ext.PW-18/E for chemical analysis. The application Ext.PW-19/A was made to Naib Tehsildar, Nerwa, for conducting the demarcation of the place of occurrence. The demarcation was conducted and the report Ext.PW-8/A obtained alongwith copy of Jamabandi Ext.PW-8/B and copy of Akas Sajra Ext.PW-8/C. On receipt of the reports Ext.PW-23/F and Ext.PW-23/G of Chemical Examiner, Forensic Science Laboratory, Junga, the same were also added in the police file.
7. On completion of the investigation, report under Section 173 of Code of Criminal Procedure, was filed in the learned Court below. Learned trial Judge, on taking into consideration the same and also hearing learned Public Prosecutor as well as learned defence counsel and on finding a case for commission of offence punishable under Section 302 of Indian Penal Code, having been made out against accused No.1 Hikmat Bahadur, whereas a case for commission of offence punishable under Sections 25 and 27 of the Indian Arms Act against accused No.2 Narain Singh Chauhan, charge against each of them was ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 8 framed accordingly. Both the accused, however, pleaded not .
guilty and claimed trial.
8. The prosecution in order to sustain charge against the accused persons, have examined twenty three witnesses in all.
9. The star prosecution witnesses, as noticed hereinabove, are: PW-1 Satish Kumar at whose instance FIR Ext.PW-16/A came to be registered against the accused persons.
PW-2 Raghuvir Singh is a witness to recovery of gun Ext.PW-2/B and 'Drat' Ext.PW-2/F. PW-3 Mahavir Kashyap, who is Junior Engineer, PIU Sub Division, HPPWD, Nerwa, who on the request of Police vide Ext.PW-3/A, prepared the scale map Ext.PW-3/B. PW-4 Raj Kumar, Proprietor Raj Photo Studio, Nerwa, has not supported the prosecution case and rather turned hostile. PW-5 Dr. Dhruv Gupta, Registrar, Department of Medicines, IGMC, Shimla, has proved the post mortem report Ext.PW-5/C. PW-6 LHC Suresh Kumar, accompanied by PW-16 ASI Kalyan Singh, got conducted the post mortem of the dead body in IGMC, Shimla.
PW-7 Rakesh Kumar, claims that he also accompanied PW-1 Satish Kumar to the spot where on asking the deceased as to ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 9 what happened to him, he informed that accused No.1 fired a .
gunshot and caused injury on his person. PW-11 Constable Sameer Kant accompanied the Investigating Officer PW-23 SI Jasbir Singh to the spot and taken the Rukka Ext.PW-11/A to the Police Station for registration of case. PW-12 Mast Ram, the owner of the orchard where deceased Dil Bahadur was working as Chowkidar, has set the machinery in motion on coming to know about the death of his Chowkidar from his brother-in-law PW-1 Satish Kumar. PW-13 Raj Kumari, is widow of deceased Dil Bahadur. PW-23, SI Jasbir Singh is the Investigating Officer. PW-
8 Jai Ram, Sr. Assistant, in the office of S.D.M., Chopal, has proved the demarcation report Ext.PW-8/A, Jamabandi Ext.PW-
8/B and Akas Sajra Ext.PW-8/C. PW-9 Bhajan Dass, Field Kanungo, has prepared the demarcation report Ext.PW-8/A. PW-
10 Mela Ram is Patwari, who assisted PW-9 Bhajan Dass in conducting the demarcation Ext.PW-8/A. PW-14 Dr. Sangeet Dhillon, had conducted the post mortem of the dead body of deceased Dil Bahadur and proved the report Ext.PW5/C. PW-15 Vivek @ Vickey, had developed photographs Ext.PW-15/A-1 to Ext.PW-15/A-24 and also prepared C.D. Ext.PW-15/B-1 & Ext.PW-
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 1015/B-2. PW-17 Constable Rajneesh and PW-18 LHC Shamim, are .
witnesses to the disclosure statement Ext.PW-18/B. PW-16 ASI Kalyan Singh, had obtained the demarcation and conducted the investigation partly. PW-20 HHC Virender Sharma, is again a witness qua visit to the spot alongwith the Investigating Officer PW-23 SI Jasbir Singh, on receipt of information. PW-21 Nasib Singh Patial, Scientific Officer, State Forensic Science Laboratory, Junga and PW-22 SI Narinder Singh, had prepared supplementary challan on receipt of D.N.A. analysis, who are formal in nature.
10. Learned trial Judge, on appreciation of oral as well as documentary evidence, discussed hereinabove, has concluded that the prosecution has proved its case against both the accused beyond all reasonable doubts and as such, accused No.1 Hikmat Bahadur has been rightly convicted and sentenced for commission of offence punishable under Section 302 of the Indian Penal Code, whereas accused No.2 Narian Singh under Section 25 of the Indian Arms Act, in the manner as aforesaid.
11. Both the accused aggrieved by the findings of conviction and sentence recorded by learned trial Court, have questioned the legality and validity thereof on the grounds, inter-
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 11alia, that learned trial Court has gone wrong in convicting the .
appellants for the offences they allegedly committed under Section 302 of Indian Penal Code and Section 25 of Indian Arms Act, respectively. There is no direct evidence available in the case in hand. The circumstantial evidence is not at all dependable for the reason that the change of circumstances is not at all complete nor the evidence so produced is consistent only with the apotheosis of the guilt of the accused, i.e. not explainable on any other apotheosis aspect that the accused is guilty. Learned trial Court has ignored all settled principles and convicted the appellants on mere surmises, conjectures and highly inadmissible as well as unreliable evidence. The prosecution story that the convict-appellant Hikmat Bahadur, accused No.1, made a disclosure statement on 20.05.2014 and pursuant to that got the gun recovered, stands falsified from the statements of the prosecution witnesses, who while in the witness-box, stated that the gun was recovered on the day of occurrence, i.e. 18.05.2014.
Therefore, it is not at all proved that appellant Narain Singh Chauhan was the owner of gun and that the same is recovered from his conscious and physical possession. It is not at all proved ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 12 that said convict was owner of gun. There is again no evidence .
available on record to show that said convict had provided that gun to his co-accused Hikmat Bahadur, accused No.1, for protection of the orchard. The disclosure statement leading to recovery of gun and drat, is not at all proved. It is also contended that the prosecution, firstly, invented a false story and thereafter purported to create false evidence in support of the said theory.
The medical evidence is suggestive of that the deceased died immediately after the injury. The story also that during the course of conducting post mortem of the dead body one coin was found in the mouth of the deceased, which suggests that the deceased brought dead to the spot by someone and thrown there. The deceased, as such, was not in a position to disclose to PW-1 Satish Kumar and PW-7 Rakesh Kumar that it is accused No.1, who fired gunshot on him and thereby inflicted the injury on his person. The only circumstance that the dead body was recovered from a place near the Dhara of accused No.1, is not sufficient to prove his guilt. Both appeals, therefore, have been sought to be allowed and the accused acquitted of the charge framed against each of them.
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 1312. The circumstances pressed into service to bring guilt .
home to the accused persons, are as under:
(i) PW-12 Mast Ram and accused No.2 Narain Singh Chauhan, both are orchardists and having their orchards adjoining to each-other in Villages Pouran, Tehsil Chopal, District Shimla and that while PW-12 Mast Ram had hired the services of deceased Dil Bahadur as Chowkidar, accused No.2 Narian Singh Chauhan that of accused No.1 Hikmat Bahadur, for watch and ward of their respective orchards.
(ii) Accused No.2 Narian Singh Chauhan was holding the gun Ext.PW-2/A and ammunition without any licence and given the said gun to his co-accused Hikmat Bahadur, Chowkidar, for his protection from wild animals while on duty in the orchards.
(iii) On 18.05.2014, accused No.1 and deceased Dil Bahadur quarrelled with each-other on the issues such as the deceased owed money to the accused and also that Bhim Bahadur, the brother of deceased, ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 14 Dil Bahadur had kidnapped the wife of accused No.1 .
Hikmat Bahadur and the said accused fired a shot on the deceased with gun Ext.PW-2/A and thereby inflicted injury on his person. The deceased Dil Bahadur succumbed to the injury so received, while was being removed to hospital from the place of occurrence.
(iv) PW-12 Mast Ram, on 18.05.2014, while on his way to Chandigarh in connection with medical treatment of his son, received a call around 11.30 a.m. from accused No.2 Narian Singh Chauhan, who informed the former about the fight between his Chowkidar (accused No.1 Hikmat Bahadur) and Chowkidar of said witness (deceased Dil Bahadur).
(v) PW-12 called Dil Bahadur over his mobile phone to know the cause of fight between the two and the latter told that he was shot with gun by accused Hikmat Bahadur.
(vi) On this PW-12 asked his brotherin-law PW-1 Satish Kumar over his mobile phone to rush to the spot, ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 15 who went there and informed this witness that Dil .
Bahadur has succumbed to the injury he received.
(vii) PW-12 had also informed police of Police Station, Nerwa, on which the Investigating Officer PW-23 SI/SHO Jasbir Singh, accompanied by other police staff, rushed to the spot in official vehicle and found deceased Dil Bahadur lying in a pool of blood there nearby the Dhara of accused Hikmat Bahadur.
(viii) The police with the assistance of local people gathered there, shifted the deceased to a vehicle on road side to take him to CHC Nerwa for treatment, who, however, succumbed to the injury he received on the way to Hospital, Nerwa.
(ix) The accused was arrested on 18.05.2014 itself and while in custody, made disclosure statement Ext.18/B on 20.05.2014 and got recovered the gun Ext.PW-2/A and Drat Ext.PW-2/E.
13. Mr. S.S. Rathore, learned defence counsel, has very ably argued that the Court below has gone wrong in convicting accused No.1 Hikmat Bahadur on the basis of the circumstantial ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 16 evidence which neither is cogent nor reliable and rather .
contradictory in nature nor is sufficient to prove that the chain of evidence is so complete, hence, sufficient to believe that it is the accused who alone has committed the offence and there is no escape from the conclusion that within all human probability, the crime was committed by the accused alone and none-else. In a case of circumstantial evidence motive to kill the deceased, assume considerable significance and as the motive, if any, for which the accused No.1 has killed deceased Dil Bahadur, is not proved, no finding of conviction could have been recorded against him. It was never complained to the police that the deceased owed Rs.20,000/- to accused No.1 and that the wife of said accused was kidnapped by Bhim Bahadur, the brother of the deceased. Therefore, the story to this effect according to Mr. Rathore, has been invented lateron to connect accused No.1 falsely with the commission of offence. Mr. Rathore has further urged that the recovery of gun and drat at the instance of accused No.1, is planted one as the recording of so called disclosure statement and recovery pursuant thereto, is not at all proved on record.
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 1714. Mr. Surender Sharma, learned counsel representing .
accused No.2, has argued that there is no iota of evidence that the gun Ext.PW-2/A was owned by the said accused. There is again no evidence to show that it is the said accused who has purchased the ammunition and provided the same to his co-
accused Hikmat Bahadur. Therefore, the findings of conviction passed against accused No.2, are the result of surmises and conjectures.
15. On the other hand, Mr. D.S. Nainta, Additional Advocate General, assisted by Mr. Virender Verma, Additional Advocate General, in order to repel the arguments addressed on behalf of the accused and in support of the impugned judgment, has contended that the evidence available on record is cogent and reliable, hence, was sufficient to convict both the accused with the commission of offences they allegedly committed. Learned lower Court, therefore, has not committed any illegality and irregularity while convicting both the accused under Section 302 of the Indian Penal Code and Section 25 of the Indian Arms Act, respectively.
16. The present being not a case of direct evidence and rather hinges upon circumstantial evidence casts an onerous duty ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 18 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 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.
17. Culpable homicide has been defined under Section 299 IPC. Whoever causes death by way of an act with the ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 19 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.
18. The ingredients of culpable homicide amounting to murder, therefore are: (i) causing death intentionally and (ii) causing bodily injury which is likely to cause death. Whether the present is a case where the evidence available on record is suggestive of that it is the accused No.1 who fired a gunshot on deceased Dil Bahadur intentionally to cause his death and such an act on his part amounts to culpable homicide amounting to murder or not, needs re-appraisal of the evidence available on record. However, before that it is deemed appropriate to point out that if the accused No.1 had motive to cause death of ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 20 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 testimony of eye witnesses.
19. If coming to the commission of an offence punishable under section 25 of the Indian Arms Act, the allegations against accused No.2 Narain Singh Chauhan, are that Gun Ext.PW-2/A, was in his possession without any license and he was having ammunition also without licence. The offence, he allegedly committed, is under Section 25(1)(B)(a) of the Indian Arms Act.
As such, contravention falls within the mischief of Section 3 of the Act. Therefore, in order to infer the commission of an offence punishable under Section 25 of the Act by accused No.2, the necessary ingredients are that he was the owner of gun Ext.PW-
2/A and holding the ammunition also without any licence.
20. Before the evidence produced by the prosecution in this case is elaborated, the present being a case of circumstantial evidence, the Court seized of the matter has to appreciate such evidence in the manner as legally required. We can draw support in this regard from a judgment of Division Bench of this Court in ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 21 Sulender vs. State of H.P., Latest HLJ 2014 (HP) 550. The .
relevant extract of this judgment is re-produced here-as-under:-
"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., AIR 1952 SC 343, has laid down the following principles:
"It is well 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 accused and it must be such as to show that within all human probability the act must have been done by the accused."::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 22
22. The five golden principles, discussed and laid .
down, again by 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 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."...
21. Similar case is the ratio of judgment rendered again by this Bench in State of Himachal Pradesh vs. Rayia Urav @ ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 23 Ajay, ILR 2016 (5) (HP) 213. 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 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. L.C. 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.::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 24
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 Suppl.(3) S.C.C. 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 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 by 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 ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 25 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."...
22. The guilt or innocence of accused persons has to be determined in the light of parameters laid down in the judgment cited (supra) as well as the evidence available on record. We have already detailed the circumstances as relied upon by the prosecution against both the accused persons to bring guilt home to them. It is now to be seen in the light of the evidence available on record as to whether the chain of evidence furnished by these circumstances is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all probability it is accused No.1 alone who has murdered deceased Dil Bahadur with gun Ext.PW-2/A, which as per the prosecution case is owned and ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 26 possessed by accused No.2 un-authorizedly and was provided to .
the accused No.1 for his protection from wild animals.
23. It is in this backdrop, we now propose to discuss the circumstances pressed in service in this case one by one.
Circumstance No.1:
24. There is no controversy about the orchards of accused No.2 Narian Singh Chauhan and PW-12 Mast Ram, situated in villages Pouran adjoining to each-other. The prosecution case to this effect finds support from the testimony of PW-12. There is again no dispute qua the services of deceased Dil Bahadur as Chowkidar were hired by PW-12 Mast Ram to look after and keep watch & ward of his orchard, whereas that of accused No.1 Hikmat Bahadur by his co-accused Narain Singh Chauhan. The orchards were adjoining to each-other. This part of the prosecution case even finds support from the testimony of PW-13 Smt. Raj Kumari, widow of deceased Dil Bahadur also.
Therefore, this circumstance pressed in service by the prosecution, stands established on record.
Circumstance No.2:
::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 2724. As per the prosecution case, accused No.2 Narian .
Singh Chauhan, was in unauthorized possession of the gun Ext.PW-2/A as he was not holding any licence in this regard. He was also holding the ammunition without any licence, hence, unlawfully. As per further case of the prosecution, accused no.2 had given the gun Ext.PW-2/A and provided the ammunition also to accused No.1 Hikmat Bahadur for his protection from wild animals while on duty in the orchards. However, there is no iota of evidence to show that the gun Ext.PW-2/A belongs to accused No.2 Narain Singh Chauhan. In order to prove this aspect of its case, the reliance has been placed upon the so called interrogation of accused Narian Singh Chauhan during the course of investigation on 21.05.2014, in which he allegedly disclosed that the gun belongs to him and it was provided by him to his Chowkidar Hikmat Bahadur. The Investigating Officer PW-23 SI Jasbir Singh, while in the witness box, though has stated in his cross-examination-in-chief that accused No.2 during his interrogation disclosed that the gun belongs to him and that the same was handed over to accused No.2 alongwith bullets for his safety from wild animals. Also that accused No.2 further revealed ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 28 that the gun was of his grand-father Ramia Ram, however, when .
cross-examined, it is admitted that no statement of accused No.2 was recorded when he was arrested on 21.05.2014 and he has not even recorded the statement of anyone else also that the gun belongs to accused No.2. Strangely enough, had it been disclosed by accused No.2 that the gun is of his grand-father and that it is he who had provided the same to accused No.1 for his protection, the Investigating Officer would have investigated this part of prosecution case further and had he did so would have easily collected the evidence to show that the gun was that of accused No.2. The story that the said accused during his interrogation has revealed that the gun belongs to him, is germane of the mind of Investigating Officer which has been invented falsely to implicate accused No.2 in the commission of offence punishable under Section 25 of the Indian Arms Act by hook and crook.
25. As a matter of fact, the present is a case of no evidence against accused No.2 and he has been erroneously convicted for the commission of offence punishable under Section 25 of the Act. Learned trial Judge though has observed repeatedly in the impugned judgment that the golden thread which runs ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 29 through the web of administration of justice in criminal cases, is .
that the accused has to be presumed to be innocent until and unless the prosecution is otherwise able to establish charge against him beyond all reasonable doubt.
26. However, in view of the above discussion, the prosecution has miserably failed to apply such rule of law in the present case and to the contrary recorded the findings of conviction against accused No.2 without there being any evidence available on record.
Circumstance No.3:
27. It is PW-12 Mast ram who set the machinery in motion in the present case as he allegedly not only informed his brother-in-law PW-1 Satish Kumar about the alleged fight between accused No.1 Hikmat Bahadur and deceased Dil Bahadur on 18.05.2014 (in Ext.PW1/A, however, names not mentioned and rather word "Gorkha" used), but the information was also given to the police of Police Station, Nerwa also. He did so consequent upon the alleged information in this regard received from accused No.2 Narian Singh Chauhan. In order to prove this part of the prosecution case, the Investigating Officer was required to obtain ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 30 the detail of so called phone call received by PW-12 Mast Ram .
from accused No.2 Narain Singh Chauhan and call allegedly he made on the mobile phone of deceased Dil Bahadur and subsequently on that of his brother-in-law, PW-1 Satish Kumar.
28. As a matter of fact, had such scientific investigation been got conducted it would have given the better results. For want of such evidence, which in our opinion, could have been easily collected in order to rule out all suspicion qua this aspect of the prosecution story, we are not able to persuade us on the basis of oral testimony of PW-12 Mast Ram and PW-1 Satish Kumar that accused No.1 and deceased had quarrelled and the latter succumbed to the injuries he received on his person. Therefore, it cannot be believed by any stretch of imagination that accused Narain Singh Chauhan had given the information to PW-12 qua the fight having been taken place between accused No.1 and deceased Dil Bahadur. We failed to understand as to how the call made to the deceased could have been received by him with bullet injury on his person. Therefore, it lies ill that the deceased informed PW-12 Mast Ram about gunshot fired on him by accused No.1. In Ext.PW-1/A, the statement of PW-1 Satish Kumar ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 31 recorded under Section 154 of Code of Criminal Procedure, there .
is no mention of the fight having taken place between accused Hikmat Bahadur and deceased Dil Bahadur. The same rather reveals that PW-12 Mast Ram informed PW-1 Satish Kumar qua fight having taken place between two Gorkhas. Therefore, with such evidence it is difficult to believe that fight had taken place between accused No.1 and the deceased. True it is that as per the medical evidence, i.e. post mortem report Ext.PW-5/C and the statement of PW-5 Dr. Dhruv Gupta that the bullet injury caused with gunshot was close to the heart and the same being vital part of the body, according to PW-5, was amenable to profuse bleeding. However, he has not ruled out the possibility of death of the injured within a span of 1 ½-2 hours from receiving such injury, in case of non-availability of medical assistance. PW-5 Dr. Dhruv Gupta has further admitted that the injured, in such a situation, may lose his consciousness in the intervening period, meaning thereby that the deceased may have died within 1 ½-2 hours from the receipt of said injury on his person and during the period, i.e. immediately after the receipt of the injury till his death, may have remained unconscious. Therefore, in such a ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 32 situation, the prosecution story qua he having informed PW-12 .
Mast Ram on mobile phone that it is accused No.1 who inflicted bullet injury on his person, cannot be believed true by any stretch of imagination. The time of the fight between two Gorkhas has not come anywhere in the investigation conducted by the police and the same to us seems to be deliberately concealed. In the mouth of the deceased, the team of Doctors which has conducted autopsy on his dead body, has found a coin already inserted.
Therefore, the deceased must have died within 1½ -- 2 hours from receiving the injury, hence, was not alive when PW-12 Mast Ram allegedly rang up on his mobile phone and PW-1 Satish Kumar came to the spot. What was the mobile number of the deceased and for want of call details again, it cannot be said that PW-12 had made the call to the deceased who in turn disclosed that is the accused who fired at him. The story in this regard also seems to be engineered and fabricated.
29. Merely that the dead body was lying nearby the Dera of accused No.1, cannot be taken to conclude that it is accused No.1 alone and none-else had murdered the deceased. There was even no occasion to PW-1 Satish Kumar and Saneev (not ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 33 examined) to have conversation with the deceased and to inform .
that it is accused No.1 who had fired gunshot on the deceased.
PW-7 Rakesh Kumar also tells us that he had gone with PW-1 Satish Kumar to the spot. It is, however, not mentioned so either in the statement of PW-1 Satish Kumar recorded under Section 154 Cr.P.C. Ext.PW-1/A nor this witness has stated so in the witness box.
30. In order to prove the so called motive that deceased Dil Bahadur owed Rs.20,000/- to accused No.1 Hikmat Bahadur and that the brother of the deceased namely Bhim Bahadur, had kidnapped the wife of the said accused, the reliance has been placed on the testimony of PW-12 Mast Ram. This witness only tells us that it is accused No.1 who owed a sum of Rs.20,000/- to deceased Dil Bahadur and the deceased had gone to the accused to collect his money. PW-12 Mast Ram as already observed, has not deposed correctly. Otherwise also, while in his cross-
examination, he has expressed his ignorance that deceased Hikmat Bahadur had been advancing money to Dil Bahadur or that Bhim Bahadur abducted the wife of accused No.1. He also expressed his ignorance qua inimical relations of accused No.1 ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 34 and deceased. Therefore, the testimony of PW-12 Mast Ram is .
not of any help to the present case. The another witness examined to substantiate this part of the prosecution case, is PW-
13 Smt. Raj Kumari, widow of deceased Dil Bahadur. Though she has deposed while in the witness box that accused owed a sum of Rs.20,000/- from the deceased and that the deceased had gone to the accused to collect the same and also that the wife of the accused was abducted by Bhim Bahadur, the brother of deceased.
However, when she as per her version was away from Dera to collect Guchhi from nearby forest, how she could have said that her deceased husband had gone to collect money from Himkat Bahadur. Otherwise also, when it is the deceased who owed money to accused No.1, there was no occasion to the former to have gone to the latter for collecting the same as it was to be collected by the accused.
31. Now, coming to her cross-examination, the suggestion that her husband was sitting in the Dera of other Nepalis and consuming liquor and that he was a drunkard man, were denied being wrong. However, in the post mortem report, the contents of alcohol in his blood were found to the extent of ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 35 219 mg. Therefore, PW-13 Smt. Raj Kumari is also not reliable .
and dependable witness. Otherwise also, she being the wife of deceased is an interested witness, hence, her testimony cannot be relied upon.
32. In view of the re-appraisal of the evidence in the manner, as aforesaid, it is crystal clear that the prosecution has miserably failed to prove that the accused was inimical to the deceased and it is he who had fired gunshot on the latter and thereby caused his death.
Circumstance No.4:
33. As already observed while discussing point No.1 (supra) in the absence of detail of telephone calls, it cannot be believed that accused No.2 Narain Singh Chauhan had informed PW-12 Mast Ram that accused No.1 and deceased both had quarrelled and the accused had fired gunshot on the deceased.
There is again no evidence that PW-12 was on his way to Chandigarh in connection with medical treatment of his son. Had it been so, the prosecution could have easily produced in evidence the record qua the treatment of the son of PW-12 Mast Ram.
Therefore, the prosecution story to this effect has also been ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 36 engineered and fabricated to falsely implicate accused No.1 .
Hikmat Bahadur in a case under Section 302 of the Indian Penal Code.
Circumstance No.5:
34. While discussing circumstance No.5 (supra), it has already been held that for want of calls detail, it can not be believed by any stretch of imagination that PW-12 Mast Ram, on coming to know about fight between accused and the deceased, called the deceased over his mobile phone to find out the cause of said quarrel and that the deceased in turn informed that it is accused No.1 Hikmat Bahadur who fired a gunshot on him and he received injury. On the basis of medical evidence available on record, it has also been observed by us that in view of the nature of the injury the deceased received, he may have died within 1 ½-2 hours form the receipt of the injury and in the meanwhile, may have remained unconscious. Therefore, it is difficult to believe that the call was made by PW-12 Mast Ram to deceased Dil Bahadur and the same was attended by the latter and he disclosed the manner to the former in which the injury was ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 37 received by him. The prosecution story in this regard is also not .
proved at all.
Circumstance No.6:
31. It is again doubtful that PW-12 Mast Ram informed PW-1 Satish Kumar to rush to the spot and find out about the quarrel having taken place between two Gorkhas. Even if it is believed to be true, PW-1 Satish Kumar, on reaching at the spot and taking stock of the circumstances prevailing there, informed PW-12 Mast Ram that the deceased has succumbed to the injury received on his person. Therefore, the prosecution story that deceased Dil Bahadur told PW-1 Satish Kumar that accused No.1 fired a gunshot on him, is false and fabricated merely to implicate the accused falsely in this case. The prosecution case on this ground also liable to fall to the ground.
Circumstances No.7 & 8:
32. Again the calls detail to show that PW-12 Mast Ram had made a call to Police Station, Nerwa, is not produced in evidence, hence, it is difficult to believe this part of the prosecution case as true. The Rapat Roznamcha Ext.PW-18/F has been pressed in service in this regard. Even if this part of the ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 38 prosecution case is believed to be true and correct, the same is .
not going to make any difference because the possibility of police having rushed to the spot cannot be ruled out as deceased Dil Bahadur was shot dead there. However, it is accused No.1 Hikmat Bahadur alone who had murdered deceased Dil Bahadur, is not at all proved on record. Since a coin was found in the mouth of the deceased at the time of his post mortem, therefore, the possibility of the deceased being already dead cannot be ruled out and the prosecution story that he was shifted to Nerwa Hospital by the police, seems to be not true and correct.
Circumstance No.9:
33. It is the disclosure statement Ext.18/B allegedly made by the accused in the presence of PW-18 LHC/MHC Shamim and PW-20 HHC Virender Kumar Sharma and recovery of gun as well as drat pursuant to it at the behest of accused No.1 Hikmat Bahadur, is heavily relied upon against accused No.1. The disclosure statement dated 20.05.2014 Ext.PW-18/B recorded in the manner, as claimed by the prosecution, however, is highly doubtful. Similarly, the recovery of gun Ext.PW-2/A and Drat Ext.PW-2/E on the basis thereof, is also doubtful because as per ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 39 the version of PW-23 SI Jasbir Singh, the accused was arrested on .
18.05.2014 and the recovery of gun and drat was also effected on the same day. The testimony of above said witnesses has, therefore, demolished the entire prosecution case qua the recovery of the weapon of offence, i.e. gun and Drat (scythe) at the instance of accused N.1. Otherwise also, as per the evidence having come on record by way of the testimony of PW-2 Raghuvir Singh, the place from where the gun was recovered, is adjoining to a path, hence, thoroughfare. The people had access at the path on account Guchhi (Wild Mashroom) collection season.
Therefore, it is difficult to believe that the gun was hidden by the accused after commission of offence. Similarly, the drat allegedly was found to be hidden beneath the pillow of the cot of accused No.1. The weapon such as drat otherwise used to be kept beneath pillow on the bed by the people in rural areas.
Therefore, it cannot also be believed that drat was hidden by accused No.1 after commission of offence. Interestingly enough, PW-2 Raghuvir Singh, in his cross-examination has stated that the gun in question was not seen by him in the orchard of accused No.2 Narain Singh Chauhan. Therefore, it would not be improper ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 40 to conclude that neither the disclosure statement Ext.PW-18/B of .
accused No.1 was recorded by the police nor recovery of the gun and drat effected on the basis thereof. Learned trial Judge has failed to appreciate this part of the prosecution case also vis-a-vis the evidence available on record.
34. The present, in view of the discussion hereinabove, is a case where the circumstances pressed into service against the accused persons are not satisfactorily established on record nor consistent only with the hypothesis of the guilt of the accused nor are of conclusive nature. The chain of evidence is also not complete so as to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and to satisfy the conscience of the Court that in all human probability, it is accused No.1 who shot deceased Dil Bahadur with gun Ext.P5 and that the said gun was of accused No.2, who had provided the same alongwith ammunition to accused No.1 for his protection from wild animals while on duty in the orchard.
35 Learned trial Judge though has noticed in the impugned judgment that the criminal trial is not like a fairy tale and the prosecution must built its case on the edifice of evidence ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 41 legally admissible. Also that an offence may be gruesome and .
revolt the human conscience, but an accused can only be convicted on legal evidence and not on surmises and conjectures.
However, such principles taken note of by learned trial Judge have not been relied upon and to the contrary the findings of conviction against the accused persons have been recorded mechanically and without application of mind.
36. Be it stated that deceased Dil Bahadur had died on account of bullet injury, he suffered on his person. It is, however, not proved beyond all reasonable doubt that it is accused Hikmat Bahadur alone, who fired gun shot and Dil Bahadur succumbed to the injury so received by him at the hands of the above said accused. The deceased as per the post-mortem report was found to have consumed liquor. Therefore, it is just possible that he had consumed liquor somewhere else, may be in the Dera of other Gorkhas, as the accused have pleaded in their defence.
37. For want of cogent and reliable evidence, it cannot be said that the fatal injury was inflicted to the deceased by accused No.1 alone. The so called motive that deceased owed a sum of ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 42 Rs.25,000/- to accused No.1 and that he had gone to the said .
accused to collect the same is not at all plausible because no investigation to enquire this aspect of the matter was conducted by the police. The prosecution case that Bhim Bahadur, the brother of deceased, had kidnapped the wife of accused No.1 is not plausible nor gone into during the course of investigation.
Therefore, such motive attributed to accused to kill the deceased is not at all proved. Learned trial Court, as such, was not justified in recording the findings of conviction against the accused.
38. The present, rather is a case where two possible views emerge on record from the appreciation of the evidence and in a case of this nature the view favourable to the accused should be followed and the benefit of doubt given to him.
Support in this regard can be drawn from the judgment of the Apex Court in State of Rajasthan vs. Islam and others, (2011) 6 SCC 343. The relevant extract whereof reads as follows:
"15. The golden thread which runs through the administration of justice in criminal cases is that if ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 43 two views are possible, one pointing to the guilt of .
the accused and the other to the innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from a conviction of an innocent."
Therefore, the accused are entitled to the benefit of doubt and consequently acquittal of the charge.
39. In view of what has been said hereinabove, these appeals succeed and the same are accordingly allowed.
Consequently, accused No1 Hikmat Bahadur is acquitted of the charge under Section 302 IPC framed against him, whereas accused No.2 Narain Singh Chauhan of the charge framed under Section 25 of the Arms Act. Accused Hikmat Bahadur is serving out the sentence. The said accused be set free forthwith, if not required in any other case. Registry to prepare the release warrants accordingly. The personal bonds furnished by accused Narain Singh Chauhan, however shall stand cancelled and the ::: Downloaded on - 20/09/2017 12:37:35 :::HCHP 44 surety discharged. The amount of fine if already deposited be .
refunded to the accused persons against proper receipt.
Both the appeals stand disposed of.
(Dharam Chand Chaudhary)
Judge
September 19, 2017 (ysc)
r to (Vivek Singh Thakur)
Judge
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