Himachal Pradesh High Court
__________________________________________________________ vs Of on 6 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.148 of 2019 Reserved on: 4th September, 2023 .
Decided on: 6th September, 2023 __________________________________________________________ Deepak Kumar ....Appellant Versus of State of Himachal Pradesh ....Respondent Coram rt Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes For the appellant: Ms. Shashi Kiran, Advocate.
For the respondent: Mr. Anup Rattan, Advocate General with Mr. I.N. Mehta & Mr. Yashwardhan Chauhan, Senior Additional Advocates General, Ms. Sharmila Patial, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General.
Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment dated 15.03.2019 passed by the learned Sessions Judge, Kinnaur Sessions Division, at 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -2- Rampur Bushahr, Camp at Reckong Peo, in Sessions Trial No.4/2016, whereby he has been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-
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and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 of Indian Penal Code (for short, 'IPC').
of
2. The story of the prosecution in a brief is that on 05.06.2015 an information was received at Police Post, rt Karchham regarding murder of a Nepali at place Kilba, on the basis of which Rapat No.7 was recorded. ASI Rajinder Singh, In-charge Police Post, Karchham had given the telephonic information, on which Rapat No.18 was recorded. SI/SHO Om Prakash went to the spot where he recorded the statement of Maheshwar Singh (PW-1) under Section 154 of the Code of Criminal Procedure (for short 'Cr.P.C.') and sent Rukka, on the basis of which, FIR No.13/2015 was rgistered at Police Station Sangla by ASI Yog Raj.
3. The SHO after associating complainant Rakesh Kumar, Ram Bahadur and Chhering, took photographs of the place of occurrence, filled-in the inquest papers and sent the ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -3- dead-body to PHC Kilba for post-mortem examination.
4. The Investigating Officer after inspecting the spot, prepared the spot-plan. One axe was found lying at the spot, .
which was taken into possession and a sketch thereof was prepared and later-on wrapped in a plastic wrapper and sealed in a cloth parcel with seal impression 'H'. The seal after its use was handed over to Rakesh Kumar (PW-4). The of Investigating Officer also took into possession one blood-
stained shirt lying on the cot and empty sack, upon which rt blood patches were found and wrapped in a sealed parcel and sealed with seal 'H', over which the signatures of the witnesses were also obtained.
5. The Investigating Officer arrested the appellant.
The appellant handed over his Pyjama and Sweater which were also having blood-stained and the same were wrapped in a parcel and sealed with seal 'C'. These memos were too signed by witnesses, namely, Rakesh Kumar and Maheshwar Singh. Thereafter, the Investigating Officer deposited the case property with the MHC.
6. On 07.06.2015, the appellant made a disclosure statement in presence of Rakesh Kumar and Vikas that he ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -4- could identify the place of murder. The Investigating Officer prepared memo to this effect, which was signed by the witnesses. The appellant was got medically examined at PHC .
Kilba. The Investigating Officer got identified the spot through Junior Engineer and Halqua Patwari who had prepared the site-plan and their statements were also recorded. The Investigating Officer obtained CD and after the receipt of FSL of report Ex.PX prepared the challan and DNA report Ex.PY was subsequently received.
7. rt Charge was framed against the appellant for offence punishable under Section 302 of IPC. In order to prove charges, prosecution examined 12 witnesses.
Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded, wherein he claimed to be innocent.
8. The learned Sessions Judge after recording the evidence and evaluating the same convicted and thereafter sentenced the appellant to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for six months for the offence punishable under Section 302 of IPC.
9. Aggrieved by the conviction and sentence imposed ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -5- by the learned Sessions Judge, the appellant has filed the instant appeal.
10. It is vehemently contended by Ms. Shashi Kiran, .
learned counsel that case of the prosecution is entirely false and fabricated and, therefore, the appellant deserves to be acquitted.
11. On the other hand, Mr. I.N. Mehta, learned Senior of Additional Advocate General assisted by Mr. J.S. Guleria, learned Deputy Advocate General would argue that the rt judgment rendered by the learned Sessions Judge is based upon the evidence that has come on record and has rightly convicted the appellant, thus, the findings so recorded warrant no interference.
12. We have heard learned counsel for the parties and have gone through the material placed on record.
13. In order to appreciate the rival contentions one is required to go through the evidence that has come on record, so as to see whether the prosecution has been able to prove its case beyond reasonable doubt.
14. The prosecution examined complainant Maheshwar Singh (PW-1), whose statement was recorded by ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -6- SHO under Section 154 of Cr.P.C. (Ex.PW1/A), wherein he deposed that in the year 2015, both the appellant and deceased were working as domestic servants with him and .
Rakesh Kumar, respectively.
15. On 04.06.2015, in the evening time, the appellant told him that he had been called by the deceased to the quarter of Ram Bahadur, who was a domestic servant of of Dorje Ko. Thereafter, he left from his house and did not return until the next morning when he came at about 10- rt 11:00 a.m. to his house having injury on his face and was found to be wearing blood-stained clothes. When he enquired about him (the accused) he told that he had been assaulted by Dor Bahadur (deceased) and thereafter he too had assaulted him. He further told that they had consumed liquor in the quarter of Ram Bahadur and during the course thereof, Dor Bahadur had broken his mobile phone and thereafter he too broken his mobile phone and on account thereof, altercation had taken place inter-se them.
16. The witness further deposed that he had telephonically called Rakesh and asked him to come to his house and on his reaching there, telephonically informed ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -7- Ram Bahadur asking him to verify as to whether some murder had taken place in his quarter. After sometime, Ram Bahadur disclosed that Dor Bahadur had been murdered in .
his quarter. Thereafter, he alongwith Rakesh Kumar went to the spot and the police had also reached there and he saw Dor Bahadur lying dead inside the quarter of Ram Bahadur with the bleeding injury on his head. Police recorded his of statement and the appellant was arrested. The body of the deceased was taken into possession vide memo Ex.PW-1/B rt which was signed by him and Dorje Ko. Police also took into possession the Pyjama and T-Shirt of the appellant and sealed in a cloth parcel and prepared memo Ex.PW-1/C, which was identified by him in the Court. Police also prepared the inquest reports Ex.PW-1/D and Ex.PW-1/E and obtained his signatures.
17. In his cross-examination he denied the suggestion that the appellant had not told him about the altercation or the assault made by him upon the deceased. He admitted that there were other houses adjoining to the quarter of Ram Bahadur which were at a distance of about 200 metres. He further stated that the appellant had told that besides him ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -8- and the deceased, there were also some other Nepalis, but he had not been asked about the identity of those Nepalis. He had also told that they had heavily consumed alcohol on that .
night.
18. PW-2 Lekh Ram, Junior Engineer had visited the spot and prepared site-plan Ex.PW-2/A and issued report Ex.PW-2/B. When cross-examined, he denied the suggestion of that he had not visited the spot and further suggestion that he had prepared these documents merely on the asking of the police.
rt
19. PW-3 Thakur Singh, is Halqua Patwari, who had supplied copy of Jamabandi Ex.PW-3/A and copy of Aks Tatima Ex.PW3/B and was not cross-examined by the appellant despite opportunity.
20. PW-4 Rakesh Kumar, deposed that the deceased had been working with him as a domestic servant for the last about six months and the appellant was personally known to him as he was working with the complainant Maheshwar Singh. He further deposed that another Nepali (Ram Bahadur) was working in the orchard of Dorje Ko at that time and the deceased was a frequent visitor to the quarter of Ram ::: Downloaded on - 06/09/2023 21:51:31 :::CIS -9- Bahadur. He deposed that on 04.06.2015, deceased-Dor Bahadur went to Reckong Peo, but did not return back in the evening.
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21. On the next day at about 10/11:00 a.m. he received information from Maheshwar Singh that the appellant had told him that he had killed Dor Bahadur at Reyang Nullah in the quarter of Ram Bahadur. Thereafter, he of went to the house of Maheshwar Singh. The accused was present there and was having blood-stains on his clothes.
rt Thereafter, information was given to Dorje Ko, who was asked to verify as to whether Dor Bahadur had been killed in the quarter of Ram Bahadur. He alongwith complainant and Ram Bahadur went to the quarter of Ram Bahadur and confirmed that the body of the deceased was lying on a cot kept inside the room. He peeped through a window and saw blood smeared body of the deceased lying on the spot. The police had reached the spot and took photographs of the site, prepared site-plan, inspected dead-body, filled-in the inquest papers and arrested the appellant, vide memo Ex.PW4/A, upon which he identified his signatures.
22. Likewise, his signatures were also obtained on ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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the inquest report and arrest memo. The police had taken into possession empty sack, blood-stained bed-sheet and blood-stained axe, which were sealed in two separate parcels, .
vide seizure memos Ex.PW-4/B and Ex.PW-4/C. The parcels were sealed with seal 'H' and police had prepared sketch of the axe and obtained his signatures. On opening, the witness identified the documents, which were taken into possession of and verified that they were the same as were taken into possession. He identified his signatures on these documents.
rt He further deposed that police had taken into possession clothes of the appellant (Ex.P2 and Ex.P3), vide memo Ex.PW-
1/C and sealed in a parcel and his signatures were obtained on this memo. He further stated that the appellant had disclosed that he could point out the place where he had struck the blows on the deceased with axe and pointed out to the place inside the room. The disclosure memo Ex.PW-4/F and identification memo Ex.PW4/G, which were signed by him and one Vikas.
23. The witness was cross-examined and he admitted that the site of incident had already been visited and inspected by the police on 05.06.2015. He further stated that ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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the disclosure statement Ex.PW-4/F and demarcation memo Ex.PW-4/G had been prepared on 07.06.2015. He admitted that the accused had not given any statement Ex.PW-4/F in .
his presence and stated that memos Ex.PW-4/F and Ex.PW-
4/G had been prepared at the spot. He, however, denied the suggestion that Maheshwar Singh (PW-1) had not telephonically informed him that the appellant had told him of that he had killed Dor Bahadur and that he had simply stated that some altercation had taken place with Dor rt Bahadur. He further deposed that police had also arrived simultaneously on 05.06.2015 at the site of incident.
However, he did not remember at which place police had taken into possession clothes (Ex.P2 and Ex.P3) of the appellant. However, he denied the suggestion that Ex.P2 and Ex.P3 were not taken of the accused and the same had also not been taken into possession by the police in his presence.
24. PW-5 Ram Bahadur has corroborated the version put-forth by PW-1 and PW-4 and deposed that on 04.05.2015, at about 7:00 p.m. Dor Bahadur came to his quarter and thereafter at about 8:00 p.m. appellant also came there. Dor Bahadur gave Rs.120/- to the appellant for ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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bringing liquor and he accordingly went and came back with two bottles of liquor. Thereafter, they consumed about one and half bottles and this witness went to his bed-room .
whereas the appellant and Dor Bahaur slept in another room.
He further stated that on next morning 5-5:30 a.m. he got up and went to the fields to bring fodder and came back at 8:00 a.m. At that time, appellant as well as deceased were sleeping of together on a bed. After some time, both of them got up.
Appellant thereafter asked Dor Bahadur to pay him some rt money to enable him to go to Reckong Peo. He declined to do so and this witness thereafter went to milch cow and after milching went to the house of his owner to supply milk. At about 10-10:30 a.m. when he was in the shop of Bittu at Kilba then he received a telephonic call from Maheshwar Singh who told him that the appellant had told him that he had killed Dor Bahadur and asked him to go to the quarter to verify it. He went to his quarter and found the door of the quarter to be opened and when he went inside he found Dor Bahadur lying dead on the bed with bleeding injury on his head and face. Axe (Ex.P6) was found lying near the bed with blood thereupon. Thereafter, he telephonically called his ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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landlord and narrated him the aforesaid facts. Later landlord Maheshwar Singh and Rakesh Kumar came there and they telephonically informed the police.
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25. On being cross-examined the witness stated that there was only one outer door to enter his accommodation.
He stated that all of them had slept at about 9:30 p.m. and at the time of the visit appellant had not brought any weapon of with him. Prior to the aforesaid get-together they never sat together to take drinks. He admitted that deceased and rt appellant were not having any inimical or strained relations.
On the next morning he did not find the appellant and Dor Bahadur to be under intoxication. However, he denied the suggestion that on the next morning the appellant had told him that he had to rush back to his quarter as he had been called by his master. He stated that the axe (Ex.P6) belonged him and had been kept in a gallery. He stated that when he saw the deceased with injury, blanket had been found wrapped uptil his chest, but he could not state who had put the blanket upon him uptil his chest. He admitted that at that time many other Nepalies were residing in Village Kilba but did not know as to whether Dor Bahadur was also having ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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rapport with those other Nepalies or not. He denied the suggestion that Maheshwar Singh had not called him up or that the appellant had told him that he had killed Dor .
Bahadur. He admitted that the police had recorded his statement. He has also stated that he had not told the police that he had seen the appellant as well as the deceased arguing with each other on the point of taking and giving of money. Further stated that after the incident in question he had seen the appellant when he had been taken by the police rt to his quarter and at that time police had also done the videography. However, denied the suggestion that the deceased had suffered injury by way of fall.
26. PW-6 Ramesh Kumar is the photographer, who had developed the photographs Mark A-1 to Mark A-17 and CD Mark A-18 and was not cross-examined by the appellant.
27. PW-7 HC Pawan Kumar, is the witness with whom the SI/SHO Om Prakash had deposited the three parcels which he entered in the Malkhana Register. He further proved the deposit of seven parcels sealed with seal 'DKG' alongwith one envelope which he entered in the Malkhana Register, Ex.PW-7/A and that vide RC No.23/2015, Ex.PW-7/B, he ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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had sent the articles to FSL, Junga on 11.06.2015 through Constable Ankush. Even this witness was not cross-examined despite opportunities.
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28. PW-8 Dr. Sangeeta Dhillon, Associate Professor, Department of Forensic Medicines, IGMC, Shimla, deposed that on 07.06.2015, on the basis of reference made by the Medical Office, PHC Kilba, District Kinnaur and the request of made by the police, she along with Dr. Dhruv Gupta, the then Registrar, Forensic Medicines, IGMC, Shimla had conducted rt autopsy on the dead-body of Dor Bahadur, wherein they observed irregular shaped with sharp edges wound measuring 17 x 8.5 cm on the left frontal temporal region with underlying left cerebral matter lying exposed. The skull wounds were found in multiple pieces embedded in the brain matter. Besides, above, three incised wounds, as specifically detailed in points No.2 to 4 of post-mortem report, were found on the left side of nostril, interior to left tragus and left cheek.
All the injuries were found ante mortem in nature and on the basis of which, post-mortem report Ex.PW-8/A was issued.
She further deposed that as per the post-mortem report and on the basis of the nature of injuries observed on the person ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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of the deceased, the deceased had died as a result of the ante mortem traumatic head injury-brain and the time between injury and death was immediate and between death and post-
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mortem around two days. She deposed that the injuries could be caused with an axe (Ex.P6) which was shown to her in the Court. She further stated that the viscera of the deceased had been preserved and sealed in the jar and handed over to the of police after perusing the FSL report Ex.PX and on the basis of the result given therein, she affirmed opinion Ex.PW-8/B in rt respect of cause of death.
29. In her cross-examination the witness denied that the injuries were possible by fall from considerable height on a sharp edged weapon, rather she vehemently deposed that the injuries to the deceased must have been caused by at least with 3-4 blows.
30. PW-9 Dr. Mehar Chand, had medically examined the appellant and on examination, he mentioned in the MLC that he found contusion measuring 3cm x 2cm over right malar region, 2cm inferior to the right eye (temporal side) and 4 cm anterior to tragus region, an abrasion with tenderness over chin measuring 1cm x 2mm right to the midline 3cm ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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inferior to lower lip and another abrasion over right end dorsal aspect 1cm x 2mm at the root of the middle finger and all the injuries were simple in nature and caused within .
probable duration of 6-12 hours and inflicted with some blunt weapon. He had issued MLC Ex.PW-9/B on the application of police, Ex.PW-9/A. He had also conducted autopsy of the deceased on the application of the police of Ex.PW-9/C and issued preliminary examination report Ex.PW-9/D and referred the matter to Forensic Department rt of IGMC, Shimla.
31. PW-10 HHC Jawahar Lal, proved on record Rapat Ext.PW-10/A, dated 05.06.2015, having been entered by him being MC at Police Post Karchham.
32. PW-12 Constable Ankush Sharma, deposited the case property with FSL.
33. PW-11 SI Om Prakash, is the Investigation Officer, who stated that on 05.06.2015, ASI Rajinder Singh, In-charge of PP Karchham had given a telephonic information with regard to the murder of a Nepali person at Village Kilba. Daily Diary Report vide Ex.PW-11/A was entered and thereafter he accompanied by the police officials left for Kilba. Having ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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arrived at Riyang Nalla, Kilba PW-1 Maheshwar Singh met him there and gave statement Ex.PW-1/A, on the basis of which he made an endorsement Ex.PW-11/B and sent it to .
the Police Station Sangla for registration of a formal FIR under Section 302 IPC. Thereafter, he initiated the investigation and during course thereof he associated the complainant Rakesh Kumar, Ram Bahadur, Cherring, etc. of Later, he took photographs, Ex.PA-1 to Ex.PA-17 of the site of occurrence and thereafter filled-in inquest papers Ex.PW-1/C rt and Ex.PW-1/D and vide inquest letter (Ex.PW-9/C) sent the dead-body to PHC Kilba for post-mortem. He further deposed that he inspected the site of occurrence and thereafter prepared the site plan (Ex.PW-11/C). At the site of occurrence he found an axe Ex.P6 and prepared sketch thereof vide Ex.PW-11/D and thereafter the axe (Ex.P6) was wrapped with plastic wrapper and further wrapped in a cloth parcel (Ex.P4) and sealed with eight seals of seal impression 'H' and specimen (Ex.PW-4/D) thereof was separately taken. The seal, after use, was handed over to PW Rakesh Kumar and in this behalf seizure memo (Ex.PW-4/B) was prepared, Memo (Ex.PW-4/B), sketch (Ex.PW-11/D) and parcel (Ex.P-4) was ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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signed by PW Rakesh Kumar and Dorje.
34. Besides above, blood smeared bed-sheet (Ex.P-7) found lying on the cot and empty sack (Ex.P-8) having blood .
patches were taken into possession by preparing a sealed parcel (Ex.P-5) thereof which was sealed with 7 seals of seal impression 'H', specimen impression (Ex.PW-4/E) whereof was also prepared and seal was taken back from PW Rakesh of and thereafter handed over to PW Dorje and in this behalf, Memo (Ext.PW-4/C) was prepared. PW Rakesh and Dorje rt appended their respective signatures on Ex.PW-4/C, parcel (Ex.P-5) and specimen impression Ex.PW-4/E. Thereafter, the appellant was formally arrested from the site of occurrence.
He handed over Pyjama (Ex.P-2) and Sweater (Ex.P-3), which were having blood stains. These were put in a cloth parcel (Ex.P-1), which was sealed with 8 seals of seal impression 'C', specimen impression Ex.PW-1/F thereof was separately taken and in this behalf, memo Ex.PW-1/C was prepared.
Memos Ex.PW-1/C as well as Ex.PW-1/F were signed by Rakesh Kumar and Maheshwar Singh and statements of the witnesses to this effect were recorded.
35. Thereafter, this witness along with appellant ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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accompanied by the police personnels carrying the case property went to the Police Station Sangla where the case property was deposited.
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36. He further deposed that on 07.06.2015, the appellant while in custody made disclosure statement Ex.PW-
4/A in the presence of PW Rakesh Kumar and Vikas and thereby disclosed that he could get the place identified where of he had murdered the deceased. Thereafter, the appellant pointed out the aforementioned place and on this behalf rt Memo Ex.PW-4/G was prepared, which was signed by the appellant and attested by the witnesses named therein and in this behalf, he also prepared map Ex.PW-11/E. He further deposed that the appellant was also got medically examined from the Medical Officer of PHC Kilba and necessary MLC was procured. Place of occurrence was also got identified from the Junior Engineer as well as the Patwari and in this behalf, site-plan Ex.PW-2/A and documents Ex.PW-3/A and Ex.PW-3/B were obtained and their statements to this effect were also recorded. CD (Ex.PA-18) was also obtained from the photographer. After receipt of the FSL report (Ex.PX) he prepared and filed the challan against the appellant. DNA ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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report (Ex.PY) was subsequently received.
37. On being cross-examined, he stated that the axe (Ex.P-6) was found lying at some distance from the dead-body .
of the deceased. He categorically stated that appellant had not taken off his clothes in his presence. He denied the suggestion that he had not recorded the statement of the PWs as per their respective versions. He denied the suggestion of that he had been deposing falsely or that he had falsely prepared the aforesaid memos or that the appellant had not rt made disclosure statement or pointed out to the alleged place of incident. He denied the suggestion that the clothes (Ex.P2 and Ex.P-3) were not of the appellant. He admitted that prior to his arrival at the site of occurrence, Head Constable Pyare Chand and one or two Constables had already gone to the spot. However, he qualified that these police personnel had not made inquiry into the matter. He lastly denied the suggestion that the appellant had been falsely implicated.
38. From the aforesaid testimonies of witnesses, it would be noticed that the story of prosecution is absolutely consistent and nothing adverse could be extracted from the material witnesses, namely, Maheshwar Singh (PW-1), ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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Rakesh Kumar (PW-4), Ram Bahadur (PW-5) and SI Om Prakash Investigating Officer (PW-11). The complainant when cross-examined had denied that the appellant had not .
disclosed to him regarding his having assaulted to the deceased. Lekh Ram Kaundal (PW-2) denied that he had not visited the spot. Rakesh Kumar (PW-4) though denied that the appellant had given statement Ex.PW-4/F in his presence of and that the disclosure statement has not led to the recovery of any weapon of offence, but the same is hardly of any avail, rt given the fact that these always stand duly proved in the testimony of PW-1, PW-5 and PW-11. Ram Bahadur (PW-5) has clearly deposed that he had gone to the house of his landlord to supply the milk and after milching his cow he was present at the shop of Bittu. When he received information from the complainant and on verifying the fact he had found Dor Bahadur lying dead. As regards the Investigating Officer, in his cross-examination he has deposed that the weapon of offence Ex.P-6 i.e. axe was lying at some distance from the body of the deceased and that the appellant had not taken off his clothes in his presence. He denied that he had not recorded the statements of the witnesses and has specifically ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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denied that the clothes Ex.P2 and Ex.P3 belonged to the appellant.
39. The case is one of circumstantial evidence and .
apart from the testimony of the witnesses the prosecution case rests on the reports of the Forensic Science Laboratory.
The complainant, landlord of the appellant, PW-4 Rakesh and the Investigating Officer (PW-11) have categorically stated of that the appellant was wearing clothes having blood-stains and stated that his Sweater and Pyjama (Ex.P2 & Ex.P3) were rt taken into possession by the Investigating Officer which were sent to FSL for Forensic Scientific Examination. Both the witnesses Maheshwar Singh and Rakesh Kumar have stated that the clothes which the appellant was wearing on 05.06.2015 were taken into possession vide Ex.PW-1/C. In the report of FSL Ex.PX, the result was found as under:-
(i) Human blood of group 'A' was detected on Ex.1 (blood-stained axe), Ex.2a (blood-stained bed- sheet). Ex.2b (blood-stained empty rice bag), Ex.3a (blood-stained sweater of Deepak) Ex.3b (blood-stained Pyjama of Deepak), Ex.4a (Pants of Dor Bahadur), Ex.4b (T-shirt of Dor Bahadur), Ex.4c (vest of Dor Bahadur) and Ex.5 (blood sample of Dor Bahadur).
(ii) Human blood was detected on Ex.4d (jacket of Dor Bahadur) but the result was inconclusive in respect of blood group.
(iii) Blood was not detected on Ex.4e (underwear of ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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Dor Bahadur).
40. The blood found on the clothes of Dor Bahadur (deceased) and the appellant leads to the inevitable .
conclusion that the injuries to the deceased were caused by the appellant.
41. Further, as per forensic evidence of DNA profiling observation the DNA isolated from Ex.1 (axe), Ex.3a (sweater of of appellant) and Ex.3b (Pyjama of appellant) showed amplification at all the 20 autosomal STR loci and rt amelogenin with Powerplex 21 PCR Amplification Kit. Ex.6 (blood sample on FTA card of Dor Bahadur) showed amplification at all the 20 autosomal STR loci and amelogenin with Powerplex 21 PCR Amplification Kit.
Identical DNA profile was obtained from Ex.1 (axe), Ex.3a (sweater of appellant) and Ex.3b (Pyjama of appellant) and this DNA profile matched completely with the DNA profile obtained from Ex.6 (blood sample on FTA card of Dor Bahadur). The DNA profile of the blood sample of deceased matched with the blood found on the clothes of the appellant.
42. The circumstantial evidence is totally against the appellant and thus the prosecution has established its case ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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against the appellant beyond reasonable doubt by way of circumstantial evidence i.e. in the shape of Forensic Science Laboratory reports of blood grouping and DNA profiling report .
Ex.PX and Ex.PY.
43. As observed above, blood-stains found on the clothes of the appellant containing the blood of the deceased lead to the conclusion that the injuries to the deceased were of caused by the appellant and in terms of Section 106 of the Evidence Act, the fact, however, the blood-stains came on his rt clothes was within the sole and exclusive knowledge of the appellant and, therefore, the burden of proving the fact was on him. Here it shall be appropriate to rely on the observations made by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254, relevant para is as follows:
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial .
evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him.
Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts of which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, rt as an additional link which completes the chain. The principle has been succinctly stated in Re.
Naina Mohd. AIR 1960 Madras, 218."
44. Additionally, we may observe that it is not the case of the appellant that he was not present in the quarter of Ram Bahadur where the deceased was found to be lying dead or that he had not consumed liquor in the quarter of Ram Bahadur. In such circumstances it was for him to offer an explanation how the deceased received injuries and in absence thereof it is a strong circumstance which indicates that he was responsible for commission of the crime, especially when an offence took place inside the four walls of house. In such circumstances, it is extremely difficult for the ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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prosecution to lead evidence to establish the guilt of the appellant if the strict principle of circumstantial evidence is insisted upon by the Courts. This is precisely what the .
Hon'ble Supreme Court in one of its latest decisions in Criminal Appeal Nos.1922-1923/2017, titled as Wazir Khan Versus State of Uttarakhand, 2023 INSC 674, decided on 2nd August, 2023, when it observed:-
of "if an offence takes place inside the four walls of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the rt circumstances of their choice it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if strict principle of circumstantial evidence, is insisted upon by the Court. Reference could be made to a decision of this Court in the case of Trimukh Maroti Kirkan Versus State of Maharashtra, reported in 2007 Criminal Law Journal, Page-20, in which this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. This Court proceed to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on prosecution to lead evidence of such character, which is almost impossible to lead or at any rate, extremely difficult to be lead. The duty of the prosecution is to lead such evidence, which it is capable of leading having regard to the facts and circumstances of the case."
45. In addition to the aforesaid, it is a settled a proposition of law that when a case is based on ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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circumstantial evidence where no eye-witness is available then another principle of law which applies is that when an incriminating circumstance is put to the accused and the .
said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view was taken in catena of decisions of of the Hon'ble Supreme Court, namely, Nika Ram Versus State of Himachal Pradesh, AIR 1972 SC 2077, Ganesh rt Lal Versus State of Rajasthan (2002) 1 SCC 73, State of U.P. Versus Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 and lastly reiterated in Wazir Khan's case (supra).
46. Adverting to the facts of the instant case, when the attention of the appellant was drawn to the incriminating circumstances that inculpated him in the crime, he failed to offer an appropriate explanation and gave false answers. The same cannot be counted as a missing link for completing chain of circumstances.
47. As a last-ditch effort the learned counsel for the appellant Ms. Shashi Kiran, would argue that the sentence as imposed upon the appellant is harsh and the appellant ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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should be punished under Section 304 of the IPC for culpable homicide not amounting to murder. More particularly when no motive for the same has been established on record. In .
support of such contention strong reliance is placed on the judgment rendered by the Hon'ble Supreme Court in Arvind Kumar Versus State of NCT, Delhi, 2023 SCC Online SC 845 = 2023 INSC 622, especially Paras 5, 9 & 20 thereof, of which read as under:
"5. The learned senior counsel appearing for the appellant has taken us through the notes of rt evidence of the relevant witnesses. He submitted that taking the prosecution case as correct, in the scuffle between the deceased and the appellant, the SAF got entangled in the chain of the appellant's belt which resulted in the accidental firing of bullets from the SAF. He submitted that once the motive is discarded, the prosecution's case based on circumstantial evidence must fail. He urged that no offence was committed by the appellant in view of Section 80 of IPC as the death was as a result of purely an accident.
9. The motive alleged by the prosecution was that the deceased had seen PW12 ShashiBala (Sub-Inspector) and the appellant in a compromising position. The allegation is that as the deceased had seen both in a compromising position, PW12 and the appellant were annoyed with him and thus, threatened to kill him. It is not necessary for us to go into the issue of the existence of motive as the High Court in paragraph 34 of the impugned judgment has ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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recorded a finding after considering the testimony of PW3 Nazir Ahmed, PW18 Sub-- Inspector Ram Singh and PW22 Shaukat Ali, the father of the deceased that the case of the prosecution regarding the existence of motive does not inspire confidence. Therefore, we will .
have to proceed on the footing that the motive was not proved. Therefore, the failure to prove the existence of the motive is one of the circumstances which makes the prosecution case regarding intentional firing by the appellant not worthy of acceptance.
20. We will also examine the effect of such of statements assuming that the same were really made. These statements were allegedly made immediately after the incident. The statements do have a connection with the incident. The rt statements were allegedly made spontaneously. Therefore, the Courts have treated the statements as relevant by invoking the doctrine of res gestae incorporated in Section 6 of the Indian Evidence Act. We have held that the theory of the prosecution that the appellant fired intentionally has not been established. The appellant was instructed by PW12 to go to the deceased and to prevent him from continuing the use of the telephone. Therefore, he went near the deceased. It is the reaction or the action of the deceased which resulted in the SAF getting entangled with the chain attached to the appellant's belt; which led to the accidental fire from SAF. Therefore, the accused spontaneously reacted by telling PW 12 what she has got done from him. While implementing the direction issued by PW12, the accidental fire took place and that is how the appellant became responsible for the death. It is in this context that the reaction of the appellant has to be understood. By those words, he has blamed the PW12. The statement attributed to PW12 ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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means that she would support the appellant before the Court by telling the truth. If the theory of accidental firing is accepted, the interpretation of the aforesaid statements as made by us becomes a possible interpretation which is consistent with normal human .
conduct."
49. We are not impressed by these arguments as it is more than settled that absence of a motive or the failure of the prosecution to establish a firm motive need not of necessarily lead to the acquittal of an accused. More especially where the prosecution adduces direct, cogent and rt unimpeachable evidence like in the instant case to establish the commission of the offence, motive for the offence, the absence thereof or its insignificance recedes into the background. In this context, it shall be apt to refer to the observations made by learned Division Bench of the Punjab & Haryana High Court in Bahadur Singh Versus State of Punjab, 2007 Criminal Law Journal 2885 more particularly Paras 15 to 17 thereof, which reads as under:
"15. The motive for a crime, being generally embedded in the mind of an accused, is a matter of inference to be drawn from the circumstances that surround a case. The absence of a motive or the failure of the prosecution to establish a firm motive need not necessarily lead to the acquittal of an ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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accused. Where the prosecution adduces direct, cogent and unimpeachable evidence to establish the commission of the offence, motive for the offence, the absence thereof or its insignificance recedes into the back- ground. In a given case, the motive may appear insignificant but one cannot lose sight of the .
complexities of the human psyche. Human beings do not respond to situations with mathematical certainty. A given set of circumstances may lead to an adverse reaction on the part of an individual, whereas another may simply ignore them. As human conduct is, by its very nature, unpredictable, the fact that the motive appears to be minor or inconsequential, cannot, by itself, be a circumstance to doubt the participation of of an accused in the com-mission of an offence."
16. In Tarseem Kumar v. The Delhi Ad-
ministration, AIR 1994 SC 2585: 1994 Cri LJ 470 the rt Apex Court held :-
"Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reason- able doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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should as- certain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or .
established on behalf of the prosecution."
17. In Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808, the Apex Court held :-
"Motive for doing a criminal act is generally a of difficult area for prosecution. One can- not normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave rt crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg. V. Palmer (Shorthand Report at page 308 (sic) CCC May 1856) thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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in the mind of the assailant. In Atley v. State of U. P. (AIR 1955 SC 807: 1955 Cri LJ 1653) it was held that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty but absence of clear .
proof of motive does not necessarily lead to the contrary conclusion". In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the of accused which would have implied him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the rt motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution."
50. Having concluded that the appellant is guilty of murder that too by giving repeated blows of an axe, this Court unhesitatingly holds that the appellant knew very well that even a single blow of the axe would cause death and therefore had the requisite intention of causing death of the deceased and thus has rightly been convicted and sentenced by the learned Sessions Judge.
51. In the given facts and circumstances, we see no reason to interfere or disturb the findings rendered by the ::: Downloaded on - 06/09/2023 21:51:31 :::CIS
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learned Sessions Judge. Accordingly, there is no merit in this appeal and the same is dismissed.
(Tarlok Singh Chauhan) .
Judge (Ranjan Sharma) Judge September 6, 2023 of (Shivender/Bhardwaj) rt ::: Downloaded on - 06/09/2023 21:51:31 :::CIS