Himachal Pradesh High Court
Dalip Kumar vs State Of Himachal Pradesh on 15 May, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos.599 & 207 of 2017.
Reserved on : 28.3.2019.
Date of Decision : 15.05.2019.
1. Criminal Appeal No.599 of 2017 .
Dalip Kumar ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
2. Criminal Appeal No.207 of 2017
State of Himachal Pradesh ...Appellant.
Versus
Dalip Kumar ...Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 For the appellant : Mr. Vinod Kumar Gupta, Advocate for appellant in Criminal Appeal No.599 of 2017.
For the respondent : Mr. Vikas Rathore with Mr.Narinder Guleria, Additional Advocates General and Mr. J.S. Guleria and Mr. Kunal Thakur, Deputy Advocates General.
Ms. Komal Chaudhary, Legal Aid Counsel, for the respondent in Criminal No.207 of 2017.
Chander Bhusan Barowalia, Judge.
Both these appeals arise out of a common judgment, dated 19.12.2016, rendered by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, in Sessions Trial No.0100005 of 2012, whereby the appellant/accused/convict (hereinafter referred to as 'the accused') has been convicted and sentenced to undergo rigorous imprisonment for ten years for the offence punishable under Section 304 of the Indian Penal Code and to pay fine of `5000/- and in default of payment of fine to further undergo simple imprisonment for six 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 2months, whereas under Section 376, read with Section 511 of the Indian Penal Code, the accused was ordered to undergo rigorous imprisonment for a period of three and half years and to pay fine of `5000/- and in .
default of payment of fine to further undergo simple imprisonment for six months.
2. The State of Himachal Pradesh laid challenge to the impugned judgment (supra) whereby the accused (appellant herein in Criminal Appeal No.599 of 2017) on the premise that the learned Trial Court wrongly convicted and sentenced the accused/convict, under Section 304 of the Indian Penal Code instead of Section 302 of the Indian Penal Code, whereas the r accused/convict/appellant has challenged the impugned judgment praying that the impugned judgment be set aside and he be acquitted for the offences punishable under Section 304, 376 read with section 511 of the Indian Penal Code.
3. The key facts, as per prosecution story necessary for adjudication of this appeal can tersely be summarized as under:
On 18.12.2011 at about 8:00 a.m, the deceased came to the house of the complainant-Bimla Devi at Boning Saring and went back around 9:00 a.m. As per the prosecution, on 19.12.2011, at about 3:00 p.m, when she went to the house of her mother, she found her mother nude and lying dead in a room situated in lower storey of the house. She immediately approached Smt. Yum Dolma, Pradhan of Mahila Mandal, who reported the matter to Police of Police Station, Sangla, on the basis of ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 3 which, SI/SHO Mast Ram, came to the spot and registered FIR. During the course of investigation, SI Mast Ram took into possession from the spot clothes of the deceased, cooked food lying in utensils, vomiting .
material lying there, seeds of cannabis and powder of the cannabis leaves found on the bed of the deceased and he also prepared site plan. The post mortem of the deceased was conducted, viscera of the deceased, samples of vomiting material and cooked food, clothes of the deceased as well as blankets lying on the bed of the deceased taken into possession from the room of the deceased and were got chemically examined from State Forensic Science Laboratory, Junga. The accused was arrested and while in custody, he took the police to the house of the deceased and also 'Panpo Kanda' (top of the hill) where he stayed for the night after committing the offence. During the course of investigation, it was found that the accused was nursing grudge against the deceased, as she used to hate him. As per the prosecution, on 18.12.2011, accused consumed liquor with Surat Bahadur and after consuming it, accused came to the house of the deceased at about 9:00 p.m with the intention to take revenge for her behaviour towards him by subjecting her to rape.
Thereafter, he knocked her door, when the deceased opened the door and found the accused at the door, she shouted, accused caught hold of her by her mouth and gave push, as a result of which, she fell down and struck against the iron made local oven and as a consequence, she sustained bleeding on her head. Thereafter, the accused tried to rape the deceased, ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 4 but she resisted, however, the accused assaulted her with fist blows, when she became un-conscious, accused stripped off her clothes and tried to commit sexual intercourse with her, but on account of non-erection of his .
penis, he failed to do so. Thereafter, the accused came back to his house leaving the deceased behind in the room in naked condition. During the course of assault made by the accused upon the deceased, accused was carrying powder of cannabis leaves in his pocket and a part thereof fell on the bed of the deceased, which was taken into possession by SI Mast Ram. On the next day, complainant-Bimla Devi, came to the house of her mother, she found dead body of her mother and lying naked. The accused without knowing that the deceased had died, went to forest to bring fuel wood and while coming back, he found many people had assembled outside the house of the deceased. Realizing the consequences of his act of previous night, the accused fled away from his house and stayed for the night in a 'Dogri' (a sort of temporary hut) at Panpo Kanda. On 20.12.2011, he approached Bharat Singh, the then Vice President of Gram Panchayat, Thamgarang and sought his help from police beating. On being questioned, the accused confessed his guilt and narrated to him the entire incidence. Bharat Singh, recorded his confession in writing and thereafter bought him to Police Station, Sangla and handed over him to the police.
After completion of investigation, challan was presented in the Court.
4. The prosecution, in order to prove its case, examined as many as twenty seven witnesses. Statement of the accused was recorded ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 5 under Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty. The accused did not lead any evidence in his defence.
5. Learned Additional Advocate General in Criminal Appeal .
No.207 of 2017, has argued that the learned Trial Court should have convicted the accused for offence punishable under Section 302 of the Indian Penal Code, as he has committed the offence and caused the death of the deceased with the knowledge that his act will in all circumstances, cause the death of the deceased and so, the accused be convicted under Section 302 of the Indian Penal Code. On the other hand, learned counsel appearing on behalf of the accused-Dalip Kumar has argued that the conviction and sentence as recorded, under Section 304 of the Indian Penal Code is without any basis, as the prosecution has failed to connect the accused with the death of the deceased and the entire prosecution story is full of surmises and conjectures, so the accused be acquitted and the charges leveled against him by allowing the appeal of accused-Dalip Kumar and dismissing the appeal maintained by the State.
6. In order to appreciate the rival contentions of the parties, we have gone through the record carefully in detail.
7. In order to prove its case, the prosecution has examined Bimla Devi-complainant, who appeared in the witness box as PW-1 and deposed that on 19.12.2011, at about 3:30 p.m, she went to her parental house and called her mother, but she did not respond. Thereafter, she went inside the house and saw her mother lying in naked condition having ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 6 injury on her forehead. The head of her mother was towards western side and legs were towards eastern side. She further deposed that the blood was also clotted on her forehead. As per this witness, she went to the .
house of Pradhan of Mahila Mandal and narrated the whole incidence to her. She deposed that about one and half month prior to this incidence, the accused had also caught hold of her mother from arms and legs and she brought the said fact to the notice of Pradhan Salochana Devi. The accused used to consume alcohol and charas, whenever he used to come in the village. The accused also used to quarrel with the villagers. She further deposed that police visited the spot and recorded her statement under Section 154 Cr.P.C., which bears her signatures. Police also clicked the photographs of the spot of occurrence. Police took into possession seeds and leaves of cannabis from the room. Police also took into possession, one woolen trouser, salwar and shirt of the deceased, vide memo, Ex.PW1/C, which bears her signatures. She further deposed that on 20.12.2011, police again visited the place of occurrence and took into possession two blankets, vide memo, Ex.PW1/G. In her cross-
examination, she denied that Ram Rattan, father of the accused used to maintain her mother. She further denied that father of the accused was called by the police and harassed on her report, which she lodged with the police at the time of death of her husband. She also denied that her relations are inimical towards the accused. She further deposed that she does not know about the litigation of her mother with Vidya Chand and ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 7 Ram Pal, before Assistant Collector 1st Grade, Sangla. She also does not know that Nand Kumar runs a shop and deals in the business of charas.
She admitted that the house of Nand Kumar adjoining to the house of her .
mother. She denied that on 18.12.2011, Nand Kumar alongwith Chander Gopal and others were consuming liquor till late night. As per this witness, Dakshina Devi, given food to her mother and also provided liquor to Nand Kumar and others. She has stated that some nepali lives near the house of the accused.
8. PW-2, Yum Dolma, Pradhan of Mahila Mandal, Themgarang, deposed that on 19.12.2011, at about 4:00 p.m, Bimla Devi (PW-1) told that her mother was murdered. She accompanied her to the house of the deceased, where she found that the deceased was lying naked, while her body was covered with a bed sheet (chadar), when she asked as to who had put chadar, Bimla Devi (PW-1) told that it was done by her.
Thereafter, she rang the police, who told that till they reached on the spot to remain there. As per this witness, villagers, namely, Salochana Devi, Pradhan, Roshan Lal, Ex-Pradhan and Dasuri, Ward Member alongwith others also reached on the spot. Lady Police inspected the dead body and found injuries on her forehead, legs and also on the other parts of body.
The string of salwar was found broken and salwar was lying nearby. She deposed that the blanket was having vomit and other spots. There were also leaves of bhang and its seeds on the pillow. Police sealed the same and also the vomit, which was found on the blanket. She deposed that ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 8 buttons of the sweater of the deceased, were broken. Bimla Devi (PW-1) handed over two blankets to the police, which were sealed and the same were taken into possession, vide memo, Ex.PW1/G, which bears her .
signatures. In her cross-examination, she feigned ignorance as to whether the deceased was being looked after and maintained by Ram Rattan.
9. PW-3, Salochana Devi, Pradhan, Gram Panchayat, Themgarang, deposed that Dasuri Devi (PW-21) telephonically informed her that the deceased lying dead in her room. She deposed that she made a telephonic call to Ex-Pradhan and narrated the whole incidence. As per this witness, when she reached at the spot, she found that the dead body was half covered with blanket. Bimla Devi (PW-1) told that when she reached at the place of occurrence, at that time, the dead body of the deceased was totally naked. Thereafter, police came to the spot and did not permit anyone to enter the room, where the dead body was lying.
Police clicked photographs of the place of occurrence and dead body of the deceased. The dead body was lying in the opposite side of bed. The legs of the deceased were lying across Chullah. The blood also oozed from the leg of the deceased. Vomit was lying on the gunny bag. The seeds and leaves of cannabis and salwar, shirt, pajama and sweater of the deceased were also lying on the bed. The string of salwar and three buttons of sweater of the deceased were also broken. Police has taken into possession, vomit which was taken from blanket and put into plastic jar.
The seeds and leaves of cannabis were put in a match box and put into ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 9 parcel, which was sealed with seal M. Police prepared the seizure memo regarding salwar, pajama , shirt and put the same in a sealed parcel, which was sealed with seal A and seal after its use was handed over to .
her. Police has also taken into possession, one strip of tablet and put into one envelope. During her cross-examination, she stated that the distance between the house of deceased and Bimla Devi (PW-1) is about one kilometer. Ram Pal, Ram Rattan and Dakshina Kumari are neighbours of the deceased. She stated that husband of the complainant, died in a suspicious manner. She does not know that the father of the accused was harassed by the police on a complaint made by the complainant. She admitted that there was a dispute between Ram Pal and the deceased regarding the land in abadi deh. She does not know that relations between the deceased and family of Nand Kumar were inimical.
10. PW-4, Dakshina Devi, deposed that on 18.12.2011, when she was returning from the Bank, she saw many people gathered in the house of the deceased and when she enquired, Bimla Devi told her that accused had committed murder of her mother. PW-5, Medup Chhering, deposed that on 19.12.2011, at about 4/4:30 p.m, he came to know that the deceased was lying dead in her house. As per this witness, villagers also came there. Police has taken into possession, cannabis seeds and leaves, vide memo, Ex.PW1/B, which bears his signatures. In his cross-
examination, he deposed that Bimla Devi (PW-1) was having strained relations with the family of the accused. PW-6, Vidya Chand, son of the ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 10 deceased, deposed that he came to know that the accused used to take articles from his mother's house without her permission and her mother used to scold him. Once her mother caught the accused while stealing .
fuel wood. He also stated that Dasuri Devi (PW-21) also told that once the accused put his hand between the buttocks of his mother and the matter was reported to Pradhan, Salochana Devi.
11. PW-7, Bharat Singh, deposed that house of the accused was searched in his presence, but he was not found in his house regarding which, memo Ex.PW7/A was prepared, which bears his signatures. Police also took into possession, vomit from the window of the house of Nand Kumar, which was put into a plastic container and put in a parcel and sealed, vide memo, Ex.PW7/B, which bears his signatures. As per this witness, on 20.11.2011, the accused came to his house and told that he done some thing wrong and to save him from the hands of the police.
When, he asked the accused as to what wrong he told that on 18.11.2011, he alongwith one nepali known as Hawaldar, consumed liquor, the accused came back to his house in the evening and the accused thought that he would rape the deceased. Thereafter, he went to the house of the deceased and knocked the door, the deceased opened door and started abusing the accused, he gagged her mouth and pushed her, as a result of which, the deceased fell down and struck against the iron chullah and sustained injury upon her forehead. He further deposed that the accused opened the string of her salwar and taken off her clothes and attempted to ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 11 rape her, but could not succeed in his attempt, as the deceased was lying unconscious, thereafter, accused fled away from the spot. He also deposed that on the next day of occurrence from 10:00 am to 12:00 am, .
he remained at his house and went towards Panpo Kanda and brought two logs of fuelwood and came back to his house. He told that while returning the accused saw many people gathered outside the house of the deceased, accused got scared and fled away from there and again went to Panpo Kanda and stayed there for whole night. The aforesaid narration of the accused was reduced into writing by him, which bears his signatures as well as the signatures of accused, which is Ex.PW7/A, which was handed over to the police, vide memo, Ex.PW7/B. He deposed that during personal search of the accused police took into possession, leaves and seeds of cannabis, vide memo, Ex.PW7/D, the same were put into a parcel and sealed with seal impression H. In his cross-examination, he has stated that houses of the deceased and Nand Kumar are adjacent to each other. He does not know on 18.12.2011, Amit Kumar, Chander Gopal and Nand Kumar were taking liquor at the house of Nand Kumar. He has stated that the complainant and the deceased have got strained relation with Nand Kumar.
12. PW-8, Surat Bahadur, deposed that on 18.12.2011 at about 2.30/3:00 p.m, accused came to his residence. Thereafter, both of them in the company of two other persons consumed liquor and while leaving the accused said that his dadi was in a habit of teasing him and today he ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 12 would see her. In his cross-examination, he denied the suggestion that accused was not visited his residence and he has not consumed any liquor in his company.
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13. PW-9, HC Puran Singh, deposed that he remained posted as Investigating Officer at Police Station, Sangla, in the year, 2011. As per this witness, during personal search of the accused cannabis leaves and seeds were recovered from him. The cannabis leaves and seeds were put into a match box and were put into a parcel and sealed with seal impression H. Sample seal H was taken on a separate cloth, vide Ex.PW9/A, which bears his signature. In his cross-examination, he denied that no cannabis leaves and seeds were recovered from the possession of the accused. He further deposed that memo Ex.PW7/D, was prepared in Police Station. PW-10, Nand Kumar, cousin of the accused, deposed that the deceased was his grandmother. The police came to his house after 2-3 days of the occurrence and lifted vomit from there vide memo, Ex.PW7/B, in the presence of witnesses, namely, Bharat Singh and Shobha Ram. PW-
12, Inder Bhagat, deposed that he remained posted as Patwari in Patwar Circle, Sangla, District Kinnaur. He prepared tatima Ex.PW12/B and copy of jamabandi Ex.PW12/C. PW-13, Jimba Ram, deposed that on 19.12.2011, at about 7:00 a.m, he saw many persons gathered outside the house of the deceased, he went there and came to know that dead body of the deceased was lying inside the room. At that time, he saw accused going with a log of wood. Having seen persons gathered there, ::: Downloaded on - 16/05/2019 21:58:43 :::HCHP 13 he fled away from his house and on the next day, he was brought by the police from Panpo Kanda. PW-14, Sam Jor, deposed that on 19.12.2011, at about 4:30 p.m, he heard shrieks coming from the side of the house of .
Vidya Chand, he came out and saw the complainant and some other person standing on the path. The complainant was crying and saying that her mother was killed by the accused. At that time, PW-13, Jimba Ram, was also there. In the meantime, he saw the accused coming with a log of wood. He threw it in the courtyard of his house and thereafter, he fled away from the spot. PW-16, Dr. Rakesh Bansal, deposed that on 21.12.2011, police moved an application, Ex.PW16/A and he conducted medical examination of the accused. As per this witness, there was nothing suggestive that the accused is incapable to perform sexual intercourse. He took samples of pubic hair and clothing of the accused.
14. PW-18, Jai Kumar, took photographs, Ex.PW18/A-1 to Ex.PW18/A-8 of the place of occurrence and also handed over CDs Ex.PW18/B-1 to Ex.PW18/B-4 to the Investigating Officer. PW-20, HHC Rajinder Kumar, carried sealed parcels from Police Station, Sangla to FSL, on 28.12.2011 and deposited the same in Laboratory. PW-21, Dasuri Devi, deposed on 19.12.2011, at about 4-5.00 p.m, he heard cries of Bimla Devi. She was crying that her mother was murdered. She went to the house of Vidya Chand, where she saw Bimla Devi. She uncovered the dead body of the deceased by removing blanket. The body was naked.
The other blankets were also lying here and there. The firewood was also ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 14 lying there. Bimla Devi told her that there are vomits in the corner of the room. The deceased also came to her house about a month prior to her death and complained that the accused put his hand on her thigh. She .
asked the deceased to tell this fact to the parents of the accused and they would advise him to mend his behaviour. She also advised her in case, his parents did not do anything, then she should maintain a complaint with the Police. PW-23, HC Sharwan Kumar, the then MHC of Police Station, Sangla corroborated the statement made by PW-24, Mast Ram, stating that on receipt of statement Ex.PW1/A, in the Police Station, FIR was registered, which is Ex.PW23/F. PW-24, SI Mast Ram, deposed that on 19.12.2011, at about 4:50 p.m, Yum Dolma (PW-2) telephonically informed that the deceased was lying dead in her house, on the basis of which rapat was recorded in the rojnamcha. He went to the spot and recorded the statement of the complainant, which is Ex.PW1/A and registered the FIR. The inquest papers Ex.PW24/A to Ex.PW24/C were also prepared by him. The dead body was naked and it was covered with blanket. There was injury on the forehead and scratch marks on the left leg below knee. There were blue spot throughout the body. Some faecal matter was there in the anal portion of the body. There was some vomit on a gunny bag lying just below the bed of the deceased towards head side. As per this witness, there was one blanket on the pillow of the bed of the deceased and there was also some vomit on it. He deposed that cooked rajmah was also there in a utensil on a hearth. Samples of cooked ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 15 dal and vomit were also taken in the plastic container and these containers were put into a cloth parcel and sealed with seal A and taken into possession, vide memo, Ex.PW1/E in the presence of witnesses, Salochana .
Devi and Bimla Devi. He prepared site plan Ex.PW24/D. He also deposed that on the bed of the deceased, her salwar, pyjami and kurta were lying.
The strings of salwar and pyjami were found untied and salwar was little bit torn from front side. These clothes were packed, sealed with seal A and taken into possession, vide memo Ex.PW1/C. White colored sweater of the deceased was also lying on the bed. Three buttons were lifted from the bed, put into a plastic container and the said container was put alongwith sweater in a parcel and sealed with seal A, vide memo Ex.PW1/D. There were two other blankets on the bed of the deceased, which were having black spots, as such, those blankets were also sealed with seal T and taken into possession, vide memo Ex.PW1/D, in the presence of witnesses. There was one strip of vitamin tablets in the room of the deceased. He deposed that on 20.12.2011, after the arrival of son of the deceased, the body was sent to CHC, Sangla, for autopsy, however, it was taken to Indira Gandhi Medical College Hospital, Shimla, as necessary facilities were not available at CHC, Sangla. The house of the accused is near the house of the deceased, thus, the vomit from the window side of the house of Nand Kumar was also lifted, packed in a plastic container, sealed with seal R and taken into possession, vide memo, Ex.PW7/B. PW-25, Dhanvir Singh, developed photographs ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 16 Ex.PW18/A-1 to Ex.PW18/A-8 and prepared CDs Ex.PW18/B-1 to Ex.PW18/B-4. PW-27, D.C. Verma, has deposed that on 20.12.2011, around 7:00 p.m, Station House Officer, Mast Ram alongwith Up-pradhan .
Bharat Singh and accused came to his house, where accused disclosed that on the night of occurrence, he went to the house of deceased and after knocking her door, gave push to her, opened her clothes and attempted to rape her. Bharat Singh (PW-7) recorded the statement of the accused in this regard. Thereafter, the accused was interrogated and then arrested. His personal search was conducted and seeds of cannabis weighing 950 miligrams were recovered and taken into possession, vide memo, Ex.PW7/D. The recovered stuff was packed in a parcel, sealed with seal impression H and sample seal was separately taken, which is Ex.PW9/A. As per this witness, accused told that after committing crime, he has hidden himself in a Dogri at Panpo Kanda and on his identification, the said Dogri was got identified on 23.12.2011.
15. Now, coming to the evidence in the present case is concerned, which are against the accused including the recovery made under Section 27 of the Indian Evidence Act. PW-17, Dr. Sangeet Dhillon, conducted autopsy on the body of the deceased and observed as follows:
"Face-lacerated wound on left frontal aspect 3 cm. superior from mid of left eyebrow. 1.5 x .25x bone deep in size. Three red contusions present on the left side of forehead of varying sizes, 1.2 cm. lateral to injury No.1 alongwith red contusion below the eye right side. .5 x .7 cm. in size. Red contusion on the bridge of nose. . 25 x . 25 cm. from nasion. Multiple abrasion on both the nostrils and on the nose and upper lip. Contuse abrasions on inner ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 17 aspect of both lips. Red contusion 2 x 3 cm. on the left side of mandible. Red contusion on the chin, 1.5 x . 5 cm. in size. Chest-Multiple red contusion on the right side from 1st to th 7 rib. Multiple red contusions on the right side of chest extending from third rib to 6th rib. Lower Limb-Multiple contusions red in colour six in .
number present on the medial anterior aspect of left thigh.
7.8 cm. superior to upper aspect of patella. Multiple red contusion on the right medial anterior aspect of right thigh. 6.2 cm. superior to upper aspect of right patella. Verticle contused abrasions on left shin. Upper Limb- Red contusion there in number on the left lateral aspect of left arm. 4 cm. below left shoulder joint. Cranium and Spine-Red haemotoma below injury No. on page 2 of the autopsy report. Extradural haemorrhage red in colour. Clotted blood present on the right temporal region. 4 x 4 cm. in size. Subdural haemorrhage red in colour in the right temporal region, 6 x 4 cm. in size. Thorax-Right side of chest-antemortem fracture of right side of ribs 2 to 7 in number. Left side of ribs 3rd to 6th in number. Rupture of the corresponding pleurae present. Abdomen-Clotted blood present in the peritoneum.
Stomach-Digested food present, rice detective. No peculiar smell present. Mucosa pale.
Liver-Antermortem laceration on the inferior aspect of right lobe. 1.7 cm. x 1.5 cm. x .8 cm. in size. Organs of generation. External genetalia normal. Internal genetalia normal. Vaginal swan taken for analysis. Provisional opinion-Deceased died as a result of shock due to injuries mentioned above, possibly by blunt trauma."
16. Further, coming to the extra judicial confession made by the accused to PW-7, Bharat Singh, inspire confidence as it was made to the person known to the accused and in all circumstances that the accused was apprehending that he will be beaten by the police, as he is a prime suspect and with a motive that PW-7, Bharat Singh, will save him under the apprehension that the police will beat him.
17. In addition to direct evidence the prosecution has proved the circumstances against the accused as well. In nitty-gritty, the law with respect to circumstantial evidence is that each and every circumstance is ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 18 required to be proved by the prosecution and the circumstances, as a whole, have to make out a chain in a manner that the only conclusion is that the accused has committed the offence, as alleged by the .
prosecution. The law on the point of circumstantial evidence is considered and settled by the Hon'ble Courts in the following judgments:
1. State of H.P. vs. Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017;
2. Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622;
3. Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme Court 79;
4. State of Uttar Pradesh vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, &
5. Rajdev alias Raju & another vs. State of H.P., Criminal Appeal No. 288 of 2015.
18. In State of H.P. vs. Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017, this Court has held as under:
"13. It is more than settled that in case of circumstantial evidence, the circumstances from which interference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
i) The circumstance from which an ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 19 inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un-erringly pointing out towards the guilt of the accused.
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iii) The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime was committed by the accused.
14. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
15. In case of circumstantial evidence, each circumstances must be r proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173)."
19. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 20 at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the .
witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.
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150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This r is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
... ... ... ... ... ...
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 21
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to .
the time and situation.
159. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case (AIR 1981 SC 765) (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to r succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra).
Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-
General."
::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 2220. The Hon'ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme Court 79, has held as under:
.
"12. There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, PW-8 and brother PW-9 claiming exclusive possession of the disputed land, that the deceased was found dead on the morning of 7.9.85 and that there were certain visible injuries such as abrasions, nail marks and contusions on the part of the nose, upper lip, chin and neck etc. as noted by the Medical Officers (PWs 5 and 6) in the post- mortem report Ex. P. 9. The appellate r Court on the strength of the opinion given by the Medical Officers (PWs 5 and
6) has agreed with the view of the Trial Court that the death of the deceased was of homicidal one and not suicidal and held "therefore suicidal is ruled out."
We also very carefully went through the evidence of the Medical Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.
... ... ... ... ... ...
15. While considering the above circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage house of PW-1 throughout the night is nothing but a false explanation and that the culprits who ever they might have been should have administered the poison to the victim and thereby caused her death and that there is very strong suspicion against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 23 suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:
"There is no evidence whatsoever either from the neighbours or .
from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these circumstances, it is not possible to hold that the prosecution has established the guilt on the part of A. 1 to A. 3.
Thus, there is no conclusive evidence that the accused committed the offence of murder. It is an unfortunate case where cold-blooded murder has been committed and it is difficult to believe that no inmate of the house had any hand in the offence of murder. But that will be only a suspicion which cannot r take the place of proof."
16. We, in evaluating the circumstantial evidence available on record on different aspects of the case, shall at the foremost watchfully examine whether the accused 1 to 3 had developed bad-blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill- treated either by her husband or in-laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill- treated the deceased, which observation we have extracted above. Hence, we hold that there is no sufficient material ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 24 to warrant a conclusion that the accused had any motive to snatch away the life threat of the deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the .
scene house and that she has been done away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life. As observed by the appellate Court, the explanation offered by accused 1 to 3 that they remained in the house of PW 1 throughout the night is too big a pill to be swallowed. But at the same time, in our view, this unacceptable explanation would not lead to any irrestible inference that the accused alone should have committed this murder and have come forward with this false explanation. We have no hesitation in coming to the conclusion that it is a case of murder but not a suicide as we have pointed out supra. The placing of the tin container with the inscription 'Democran, by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body. Even if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Ex. P. 6 to P. 8 alleged to have been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No. 1 in this written statement is that by about the time of the arrival of the police, one Sathi Prasad Reddy handed over these letters to him saying that he (Reddy) found them near the place where the dead body was laid and that ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 25 he (A-1) in turn handed over them to the police. PWs 8 and 9 have deposed that these letters are not under the hand writing of the deceased. But the prosecution has not taken any effort to send the letters to any hand-writing export for comparison with the admitted .
writings of the deceased with the writings found in Ex. P. 6 to P. 8. Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.
17. No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that all the accused or any of them are the real culprits. The circumstances indicated by the learned Counsel undoubtedly create a suspicion against the accused. But would these r circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not.
... ... ... ... ... ...
22. We are of the firm view that the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them committed the murder of the deceased, Vijaya punishable under Section 302 read with Section 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A I.P.C. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference."
21. The Hon'ble Supreme Court in State of Uttar Pradesh vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, has held as under:
"12. So far as the last seen aspect is concerned it is necessary to take note of ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 26 two decisions of this Court. In State of U.P. v. Satish, it was noted as follows:
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were .
seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
r In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-
2."
13. In Ramreddy Rajesh Khanna Reddy v.
State of A.P., it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."
(See also Bodhraj v. State of J&K, (2002) 8 SCC 45)
14. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 12 SCC 438. Factual position in the present case is almost similar, so far as time gap is concerned.
::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 2715. Out of the circumstances highlighted above really none is of any significance. Learned Counsel for the appellant-State highlighted that the extra judicial confession itself was sufficient to record the conviction. On a reading of the evidence of CW-1 it is .
noticed that accused Ram Balak did not a say a word about his own involvement.
On the contrary he said that he did not do anything and made some statements about the alleged act of co-accused.
Additionally, in his examination under Section 313 of Code, no question was put to him regarding his so called extra judicial confession. To add to the vulnerability, his statement is to the effect that after about 11 days of the incidence the extra judicial confession was made. Strangely he stated that he told the police after three days of the incidence about the extra judicial confession. It is inconceivable that a person would tell the police after three days of the incidence about the r purported extra judicial confession which according to the witness himself was made after eleven days. Learned Counsel for the State submitted that there may be some confusion. But it is seen that not at one place, but at different places this has been repeated by the witness.
16. Learned Counsel for the appellant also refers to a judgment of this Court in Abdul Razak Murtaza Dafadar v. State of Maharashtra, more particularly para 11 that the Dog Squad had proved the guilt of the accused persons. In this context it is relevant to take note of what has been stated in para 11 which reads as follows:
(SCC pp. 239-40) "11. It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted.
But in the United States there are conflicting decisions:
::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 28'There have been considerable uncertainty in the minds of the Courts as to the reliability of dogs in identifying criminals and much conflict of opinion on the question of the admissibility of their actions in evidence. A .
survey of the cases however, reveals that most Courts in which the question of the admissibility of evidence of-trailing by blood- hounds has been presented take the position that upon a proper foundation being laid by proof that the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the person trailed was the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the Crime.' (para 378, Am. Juris. 2nd edn. Vol. 29, p. 429.) There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-
examination, the dog s human companion must go into the box and report the dog s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. In R. v. Montgomery,1866 NI 160 a police constable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards the police got them on a nearby road. About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked continuously until he stopped in evident ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 29 perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the .
conviction. In these circumstances the Court of Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog s reactions was properly admitted.
The Court did not regard its evidence as a species of hearsay but instead the dog was described as "a tracking instrument and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dog s evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight.
It is submitted by learned Counsel for the appellant that in the said case this Court had upheld the conviction.
Though in the said case the conviction was upheld, but that was done after excluding the evidence of Dog Squad.
This Court found that the rest of the prosecution evidence proved the charges for which the appellants therein had been convicted."
::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 3022. This Court in Rajdev alias Raju & another vs. State of H.P., Criminal Appeal No. 288 of 2015, decided on 30.05.2016, has held as under:
.
51. It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the accused Manoj Sahani and the accused Manoj Sahani is entitled to get the benefit of doubt."
23. After touching the different facets relating to the law laid down by Hon'ble Courts on the subject of circumstantial evidence, the testimonies of the prosecution witnesses need discussion and analysis. So, in order to appreciate the rival contentions of the parties we have gone through the record carefully.
24. In the present case, the deceased was having strained relations with the accused and that on account thereof, accused committed the offence. The prosecution has placed reliance upon the statements of PW-1, Bimla Devi, PW-3, Salochana Devi, PW-6, Vidya Chand, (son of the deceased) and PW-21, Dasuri Devi. PW-1, Bimla Devi, deposed that about one and half month prior to the incidence, her mother told her that accused caught her from her arm and leg and she narrated this fact to PW-2, Salochana Devi. She also deposed in her statement Ex.PW1/A, recorded under Section 154 of the Code of Criminal Procedure by PW-24, SI Mast Ram, on the basis of which FIR, Ex.PW23/F was ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 31 registered. PW-3, Salochana Devi, deposed that the accused removed two wooden planks of the deceased and when she scolded him, he caught hold by her arm. PW-6, Vidya Chand deposed that he came to know that the .
accused used to take articles from his mother's house without her permission and her mother used to scold him. Once her mother caught the accused while stealing fuel wood. He further deposed that PW-21, Dasuri Devi, also told that once the accused put his hand between the buttocks of his mother, matter had also been reported to Pradhan, Salochana Devi.
25. From the above evidence, it is clear that the relations between the accused and the deceased were strained and the accused was having motive to harm the deceased. Now, after taking into consideration the statement of prosecution witnesses, as has been discussed hereinabove, it has come on record that on 18.12.2011, during day time, accused consumed liquor in the company of PW-8, Surat Bahadur and two other persons after having consumed liquor, the accused given vent to his anger by saying that he would see the deceased on that day. PW-2, Yum Dolma, deposed that she knows Ram Rattan, father of the accused and he was step son of the deceased. So, if the nature of the stand taken by the accused, while cross-examination, is taken into consideration, then it could be held that the accused did not deny that the deceased was related to her like a grandmother. This aspect of the statement made by this witness leaves no doubt to hold that the accused ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 32 while leaving the house of PW-8, Surat Bahadur, made reference to the deceased, when he used the words dadi. It is further case of the prosecution that on the next day of occurrence, when the accused saw .
that many persons gathered outside the house of the deceased, he got scared and fled away from his house and stayed during night at Panpo Kanda.
26. After analyzing the prosecution witnesses, it is clear that the prosecution succeeded in proving that on the next day of incidence, when the accused saw many persons gathered outside the house of the deceased, he fled away from his house. PW-7, Bharat Singh, also supported the case of prosecution by stating that the police effected search of the house of the accused and he was not found in his house. In fact, PW-24, SI Mast Ram, after effecting recovery of the articles from the house of the deceased and after preparing inquest papers gone to the house of the accused and was not found in his house. It appears that having realized the consequences of his act committed on the previous night, the accused got scared and run away to avoid his apprehension by the police. So, the aforesaid previous conduct of the accused in proclaiming the presence of PW-8, Surat Bahadur that he would see the deceased and his subsequent conduct in fleeing from his house soon after having came to know about the death of the deceased is relevant under Section 8 of the Indian Evidence Act, 1872, which inter alia provides that previous or subsequent conduct of any person, an offence against whom is ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 33 the subject of any proceedings is relevant, if such conduct is influenced by any fact in issue or relevant fact. PW-1, Bimla Devi, PW-3, Salochana Devi, PW-5, Medup Chhering and PW-9, HC Puran Singh, while deposing .
that at the time of inspecting the place of incidence, the police found seeds of cannabis and powder leaves of cannabis from the room of the deceased, thereafter, put into match box and sealed with seal impression M. The prosecution also produced parcel Ex.P-3, in sealed condition and after opening the parcel, match box, Ex.P-1, containing seeds of cannabis, Ex.P-2 and cannabis leaves, Ex.P-4, were found therein.
27. All these circumstances were fortified by the extra judicial confession made by the accused to PW-7, Bharat Singh. Now, it is clear that it is the accused, who has caused the death of the deceased, but whether it is culpable homicide amounting to murder or culpable homicide not amounting to murder is to be concluded on the basis of evidence, which has come on record. From the injuries on the person of the deceased and the manner those were caused and the intention of the accused i.e. to rape the deceased and on account of fall goes to show that the injuries were caused, which were not sufficient, in all probabilities to result into the death of the deceased. At the same point of time, the intention was also not there to cause the death of the deceased. So, it is clear that the accused has committed culpable homicide of the deceased not amounting to murder and so, the view taken by the learned Trial Court holding him guilty accordingly cannot be said erroneous and the ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 34 submissions made by the learned Additional Advocate General that the accused be convicted for the offence punishable under Section 302 of the Indian Penal Code, required to be rejected and is accordingly rejected.
.
28. As far as the offence under Section 376 read with Section 511 of the Indian Penal Code is concerned, the prosecution has proved the guilt of the accused, as the dead body of the deceased was lying naked and it was the accused who made the deceased naked with the purpose to rape her, but he could not succeed, as his male organ could not erect, so there was definitely attempt to commit the rape. In view of this, as discussed hereinabove, no interference is required in the view taken by the learned Trial Court while convicting the accused for the commission of offence punishable under Section 304 and Section 376 read with Section 511 of the Indian Penal Code.
29. In view of what has been discussed hereinabove, in a nut shell it can be said safely that the prosecution has successfully proved the guilt of the accused conclusively and beyond the shadow of reasonable doubt. Therefore, the only conclusion is that the learned Trial Court has rightly appreciated the evidence to its true and correct perspective and rightly convicted the accused. We find no reason to reverse the findings of conviction recorded by learned trial Court.
30. Now, if coming to the quantum of sentence, 10 years rigorous imprisonment for the commission of the offence punishable under Section 304 IPC and to pay fine of Rs. 5,000/-, in the given facts and ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 35 circumstances of this case is on higher side. As per the prosecution evidence itself i.e. the confessional statement Ext. PW-7/A and also the statement Ext. PW-7/C of Bharat Singh recorded under Section 164 Cr.P.C.
.
who is author of the confessional statement Ext. PW-7/A supra, the intention of the accused was not to do away with the life of the deceased but also to assault her sexually. As per further case of the prosecution, he, however, failed in his attempt to assault her sexually on account of non-erection of his penis. The present, as such, is a case which falls under IInd part of Section 304 IPC. The accused was arrested in this case on 20.12.2011. The record reveals that he remained in custody during the course of trial. Even after his conviction and sentence also, he is in jail undergoing the sentence imposed upon him. He, therefore, has undergone the sentence for a period over 7 years i.e. 7 years and 4-5 months. We find the present a case where the sentence imposed upon the appellant-convict does not commensurate vis-à-vis the nature of the offence he committed. Therefore, the sentence he has already undergone would serve the ends of justice. The appeal, though is dismissed, however, impugned judgment is modified only to the extent that the appellant-convict if not required in any other case, be set free forthwith.
31. In view of the findings recorded hereinabove, we find no merits in the connected appeal Cr. Appeal No. 207 of 2017 preferred by the State of Himachal Pradesh for the reason that no case for enhancement of the sentence imposed upon the appellant-convict has ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP 36 been made out and rather the period he has already undergone has been held by us as adequate to meet the ends of justice. Both the appeals are accordingly dismissed.
.
(Dharam Chand Chaudhary) Judge (Chander Bhusan Barowalia) th 15 May, 2019 Judge (CS) r to ::: Downloaded on - 16/05/2019 21:58:44 :::HCHP