Himachal Pradesh High Court
Balbir Singh vs State Of Himachal Pradesh on 5 January, 2019
Author: Chander Bhusan Barowalia
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 557 of 2016
Reserved on: 28.11.2018
Decided on: 05.01.2019
_______________________________________________________________
.
Balbir Singh ...Appellant
Versus
State of Himachal Pradesh ...Respondent
_______________________________________________________________
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
For the appellant : Mr. O.C. Sharma, Advocate
For the respondent :
Mr. Narender Guleria, Additional
Advocate General, with Mr. J.S.
Guleria and Mr. Kunal Thakur,
Deputy Advocates General.
____________________________________________________________________
Chander Bhusan Barowalia, J.
By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Sessions trial No. 17/7 of 2013, dated 20.01.2016, whereby the appellant-accused (hereinafter referred to as 'the accused') has been convicted and sentenced to undergo life imprisonment and to pay fine of Rs.10,000/- under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and in case of default of payment of fine, the accused ordered to further undergo simple imprisonment for a period of two months.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 22. The factual matrix of the case, as set out by the prosecution, are that Ram Krishan (complainant) resident of village Bhater used to earn his livelihood by working as a labourer. He has .
three children, namely, Champa Devi (deceased), Pawan Kumar and Sanju. The deceased was engaged to the accused about 6-7 months prior to the incident. The accused was employed in the Irrigation and Public Health Department and after his engagement, he had been meeting the deceased. On 23.02.2013, the complainant alongwith his younger brother Rattanu and sister-in-law Reeta Devi went to Bilaspur for attending a Court case. The elder son of the complainant, Pawan Kumar had gone to school, whereas his younger son Sanju, mother, Suvidha Devi and daughter (deceased) had stayed in the home.
3. In a nutshell, prosecution story is that on 23.2.2013, when the complainant alongwith his younger brother and sister-in-
law returned home at about 6-6.15 PM, they found both the sons of the complainant, his nephew Vijay Kumar, mother and Savitri Devi (wife) crying loudly and it was told that Champa Devi (deceased) died and her body was lying in the forest at Bhater. He then went to the spot and found that corpse of the deceased, where Chotu Ram, younger brother of the complainant, his uncle Sukh Dev, villagers Nand Kishore and Paramjeet were also present. On the spot, slippers and broken bangles of the deceased were lying and about 25 feet away from the dead body, in the bushes a hammer alongwith handle ::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 3 was found. Thereafter, the complainant made inquires from his wife and children and it was told that around 12.30 p.m. the deceased went to the forest at Bhater to bring fodder for cattle and Sanju (PW-
.
3) accompanied her. Savitri Devi had informed the deceased and Sanju that she was going to the shop at Khakeri to purchase ration.
When she reached there, her son Sanju had also come, who disclosed that he came to assist her to lift the ration. After about two hours when Savitri Devi returned back home, the deceased was not in the home. They searched for the deceased, but in vain. Thereafter, the dog was released and it started barking where the deceased was found dead. Her mobile phone having two SIMs bearing No. 98177- 01634 and 88948-18414 was also lying nearby, which was lifted by Subedha (PW-5) and on being checked by Pawan Kumar (PW-8), SIM bearing No.98177-01634 was found missing from the mobile phone.
The police was informed and the investigation ensued. The police clicked photographs of the dead body and the spot was videographed.
The dead body was shifted to Government Primary School, Sandroti.
Inspector Tilak Raj prepared inquest reports and thereafter the dead body was sent for post-mortem examination to R. H. Bilaspur under the supervision of ASI Dalip Chand and LC Hem Lata. On 24.02.2013, Dr. N.K. Sankhyan conducted the post mortem examination on the corpse of the deceased and found ante mortem injuries on her person. He opined that deceased died due to ante mortem injuries and possibility of throttling and smothering was not ::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 4 ruled out. He sealed parcel which contained ornaments and clothes of deceased, two sealed jars containing viscera, one sealed vial containing blood, another sealed vial containing scalp hair and a tube .
containing blood of deceased for DNA test. He also sealed a parcel containing vaginal swabs and two slides of vaginal smear, one sealed envelope containing letter to Chemical Examiner RFSL, Mandi, another sealed envelope containing letter to the Director SFSL, Junga. He handed over the entire parcels etc. to the police.
4. The statement of the complainant Ram Krishan was recorded under Section 154 of the Criminal Procedure Code and it was sent to the police station through Constable Satish, whereupon F.I.R. was registered. Inspector Tilak Raj started the investigation and prepared the site plan as per the spot position. A paid of 'V' shaped slippers, broken pieces of bangles and two toffees of 'Center Fruit' were taken into possession by the police, in presence of witnesses Nand Kishore and Sukh Dev. Blood stained hair, soil smeared with blood and also control sample of soil along with grass were taken into possession. Hammer, which was found lying near the dead body was also taken into possession in presence of witnesses Nand Kishore and Sukh Dev.
On 24.2.2013, MHC Police Station, Kot Kehloor telephonically informed the Investigating Officer that Balbir Singh (accused) consumed poison and is admitted in the hospital at Anandpur. The Investigating Officer shifted to C.H.C. ::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 5 Gawandal. On 25.2.2013, during inquiry, the accused in presence of Medical Officer confessed that he had murdered the deceased, so by consuming poison he attempted to commit suicide. His statement was .
reduced into writing and separate F.I.R. under Section 309 IPC was registered against the accused. Statements of the witnesses were recorded and it transpired that on 23.02.2013, during the day time, the accused called the deceased to the forest at Bhater and murdered her.
5. On 28.2.2013, while in the police custody the accused made a disclosure statement and consequent thereto he got recovered his pants and shirt from his house, which were taken into possession in presence of witnesses Pawan Singh and Pammi Lal. Site plan of the place of recovery was also prepared.
6. On 25.02.2013, Dr. Kapil Chopra, medically examined the accused and found him capable of performing sexual intercourse.
To this extent Dr. Kapil Chopra issued MLC. Samples of pubic hair, scalp hair, finger nail, alongwith sample of blood and clothes of the accused i.e. undergarments and pullover were preserved by the Medical Officer, which were handed over to the police. All the parcels were deposited with HC Suresh Kumar. The parcels were sent by MHC to SFSL, Junga, through Constable Lal vide RC No. 18/13 on 27.02.2013 for analysis. Parcels were also sent through Constable Mukesh Kumar to RFSL, Gutkar vide R.C. No. 18/13 on 27.02.2013 for analysis. Parcels were also sent through Constable Sunil Kumar to ::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 6 SFSL, Junga vide R.C. No.22/13. After analysis reports from SFSL, Junga and RFSL, Gutkar were obtained.
7. On 3.3.2013, the SIM broken by the .
accused was recovered and to this extent seizure memo was prepared in presence of witnesses Sucha Singh, Rakesh Kumar and ASI Shyam Lal. Spot map of the place of recovery was prepared. Mobile phone having a dual SIM stated to be that of the deceased, on being produced by Pawan Kumar was taken into possession. Mobile phone, on being produced by Subedha was also taken into possession by the police. Police also took into possession Mobile phone of the accused, in presence of Pawan Singh and Shakuntla Devi. The call detail reports and billing addresses with respect to mobile phones No. 97366-60618, 88948-18415, 9882115410 and 98177001634 were obtained.
8. Dr. N.K. Sankhyan after seeing the hammer and on the basis of report of chemical examiner gave his final opinion. He also found that the head injury on the person of the deceased could be caused by the hammer. The accused made a disclosure statement to the effect that he could get the spot identified where he murdered the deceased and consequent thereto he took the police to the place of occurrence. The police prepared a memo in this regard and also prepared site plan. Sh. Roshan Lal, Patwari, after verifying and measuring the spot, prepared the aks-sajra and jamabandi.
::: Downloaded on - 09/01/2019 23:03:33 :::HCHP 79. During investigation, it transpired that the accused was engaged with the deceased and used to visit the house of the complainant for meeting her and he was also in touch with the .
deceased on mobile phone. Simultaneously, the accused also started talking to Subedha on phone, which was objected by the deceased.
Since, the accused started liking Subedha, on 23.2.2013, during day time, he called the deceased to the forest at Bhater at a lonely place and killed her with a hammer, so that he could marry Subedha.
10. On completion of investigation, report under Section173 of the Code of Criminal Procedure together with the relevant documents was filed against the accused in the Court of learned Judicial Magistrate 1st Class, Bilaspur, who vide order dated 31.7.2013, committed the case to the learned Sessions Judge Bilaspur. Charge against the accused was framed under Section 302 IPC, to which the accused pleaded not guilty and claimed to be tried in accordance with law.
11. The prosecution, in order to prove its case, examined forty witnesses. On the closure of prosecution evidence, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty and claimed to be tried. However, in defence, the accused did not examine any witness.
12. The learned trial Court vide its judgment dated 20.01.2016, convicted the accused for the commission of the offence punishable under Section 302 IPC and sentenced him to undergo life ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 8 imprisonment and to pay fine of Rs. 10,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for two months, hence the present appeal.
.
13. Mr. O.C Sharma, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the guilt of accused, as the statements of the witnesses do not inspire confidence. He has further argued that as per the story of the prosecution hammer was recovered on 24th February 2013, but the witnesses have seen the hammer on 23rd February 2013 on the spot alongwith Investigation Officer. He has argued that the statement of the accused which was recorded by the police in presence of the Doctor cannot be taken as a confessional statement and the same is hit by Section 26 of the Indian Evidence Act. He has further argued that the Investigating Officer, while deposing in the Court, stated that there was no blood on the hammer, but in the FSL report the blood was found on the hammer. He has argued that the last seen theory as putforth by the prosecution is not at all reliable, as the brother of the deceased has nowhere stated that he saw the accused with the deceased in the Jungle. Lastly, it has been argued that the accused has been convicted on the basis of evidence, full of surmises, conjectures and lacunae and the judgment passed by learned trial Court, whereby the accused was convicted and sentenced is required to be set aside and the accused be acquitted.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 914. In support of his argument, Mr. O.C. Sharma, learned Counsel has placed strong reliance upon 2016 (3) Criminal Court cases 1 SC, wherein vide para 10, it has been held as under:
.
"10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."
15. In a similar set of facts, Hon'ble Apex Court in case titled Krishnan vs. State of Tamil Nadu, 2014 (12) SCC 279, has held as under:
"21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Argun Marik V. State of Bihar, 1994 Supp(2) SCC 372).
"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19.07.1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would be at best amount to be the evidence of the appellants having been seen last together with the deceased.
But it is settled law that the only circumstances of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
16. The learned counsel for the accused has further placed reliance upon a judgment of Hon'ble Kerala High Court, ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 10 rendered in Salim vs. State of Kerala, 2012 (2) Criminal Court Cases 435 (Kerela) (DB), wherein vide para 33, it has been held as under:
.
"33. Undoubtedly, the appellant was arrested by PW21.
The appellant was sent to PW16 by PW21 in the custody of police officials. The arrest had already been effected. The consequent detention and custody have not been terminated. There can be no doubt or dispute on the question that the appellant was not a free bird. He could not evidently move about on his own will. In these circumstances, whether there was immediate presence of any police official or not near the appellant, according to us, is not crucial or determinative. It has got to be held that he who was arrested was in the custody of he police and continued to be under the custody of the police. If that be so, according to us, the language of Sec. 26 makes it crystal clear that a confession made by him in the custody of the police officer cannot be proved against the appellant. We need not advert to the decisions which make out a distinction between 'custody' and 'formal arrest', as in this case, the formal arrest has already been made, admittedly. The mere fact that no police official was standing near the appellant at the time when he made the alleged extra judicial confession cannot and shall not detract against the fact that he continued to be in the custody of the police officer. In that view of the matter, it appears to us to be evident that the so- called confession cannot be admitted in evidence."
17. Conversely, Mr. J.S. Guleria, learned Deputy Advocate General, has argued that prosecution has proved the guilt of the accused conclusively by leading cogent and reliable evidence. He has referred to the statements of PW1, PW3, PW10 (Investigation Officer) and PW38-A. He has further argued that the statements of the prosecution witnesses only lead to conclusion that it was the accused who committed the crime. He has further argued that the confessional statement recorded by the police was at the instance of the accused ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 11 when he was not in custody. He has argued that this statement in all circumstances can be taken as extra judicial confession. He has further argued that the statement of PW-11 is a link to establish that .
the accused on the day of occurrence went to the spot after taking the lift from him. He has argued that minor discrepancies are bound to occur and these small discrepancies do not create serious dent in the prosecution story. He has argued that the judgment of conviction and sentence rendered by the learned Trial Court is result of proper appreciation of facts and law and the same needs no interference. The appeal which sans merits be dismissed.
18. In rebuttal, the learned counsel for the accused has argued that prosecution witnesses have falsely deposed in the court due to their relations with the deceased, more particularly with Ms. Subedha, as the clothes of Ms. Subedha were not produced in the Court, which, as per the prosecution, were stained with blood. He has further argued that call details do not tally with the statements of the witnesses. Ms. Subedha was continuously in touch with the accused on telephone on the previous day of the occurrence and also on the day of occurrence.
However, police did not investigate the matter through this angle. The prosecution could not prove the motive of the accused and when the motive is missing, conviction on the basis of circumstantial evidence cannot be made. He has argued that PW-11 nowhere stated that accused was having hammer in his hand at that time. He has further argued that in these circumstances, the conviction recorded by the ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 12 learned Court below is required to be set aside and the accused be acquitted.
19. We have heard the learned counsel for the parties and .
carefully gone through the records of the case.
20. The complainant, Shri Ram Krishan stepped into the witness box as PW-1. He has deposed that he works as a labourer and 5th pass. He has three children and one of them i.e. Champa (deceased), who was 8th pass, was killed. As per this witness, on 23.2.2013, he alongwith his sister-in-law and brother, went to Bilaspur to attend a Court case. His son, Pawan had gone to school on that day and another son Sanjay was at home. He has further deposed that his wife and mother along with the deceased were present in the home. In the evening, at about 6.15 pm, when he returned his family members alongwith villagers were weeping. On inquiry, it was told to him by Pawan and Sanju that the deceased is lying dead in the jungle at place called Bhater. He went to the spot and found the dead body of the deceased. He has further deposed that the slippers, yellow shawl along with broken pieces of bangle of the deceased were lying there. The deceased was having injuries on her head. At that time his brother Chotu Ram, one Nand Kishore and Paramjeet were also present there and they informed the police at Police Post, Shri Naina Devi Ji. As a sequel, three police officials reached on the spot and they showed their inability to lift the dead body and asked them to contact the police at Police Station Kot.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 13Police were telephoned by Pradhan and 6-7 police officials along with one Lady Constable reached on the spot. Inquiries were made by the police and a hammer, which was lying at a distance of 25 feet from .
the dead body, was recovered. As per this witness, his wife and children told him that at about 11.30-12 O'clock, the deceased went to the jungle to fetch grass/leaves for the goats and Sanju accompanied her. The complainant was told by his wife that accused came there and he also accompanied the deceased. The accused was engaged with his daughter (deceased). His wife at that time had gone to the shop situated at Khakari to bring articles and she alongwith Sanju brought the articles from the shop. After 10-15 minutes, Sanju returned from the jungle and went with his wife to the shop.
When his wife had returned home from the shop, the deceased was not found there. Thereafter, his wife alongwith his mother and Subedha went to jungle in search of the deceased and they also took their pet dog with them. In the jungle, the dog started barking. The mobile phone of the deceased was lying with her on the spot, which was two SIMs, one bearing No.88948-18415 and the other number, which he does not remember. He has further deposed that it was having digit 34 at the end and the same was given to the deceased by the accused. The SIM which the accused had given to the deceased was not there in her mobile phone. Subedha had brought the mobile phone back with her from the jungle and handed it over to Pawan (son of the complainant). He did not know on 23.2.2013 as to who ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 14 had killed his daughter. Afterwards, he came to know that accused had also tried to kill himself by consuming poison and he had been taken by the police to the hospital. The accused took the police to the .
place where he killed the deceased. The accused also told that he killed the deceased, as he was in love with Subedha. His statement, Ext. PW-1/A, was recorded by the police, which bears his signatures encircled in circle A. In his cross examination, he deposed that his statement was recorded only once by the police on 23.2.2013. He further deposed that he was told by Pawan and Sanju at 6.15 p.m. that on the day of incidence, they saw the dead body of the deceased lying in Bhater jungle. The dog was taken to the jungle prior to his reaching home. He reached at the spot around 6.25 p.m. He gave statement that it was told to him by the three police officials that as they were not in a position to lift the dead body from the spot, they asked him to contact other police officials at police station Kot and thereafter Pradhan telephoned the police at police station. He disclosed to the police that the accused got recovered the hammer.
He also told the police that the accused, the deceased and his son Sanju went together to the jungle from his home. He gave statement to the police that the SIM, having last digits as '34' had been provided to the deceased by the accused. He also stated before the police that the accused had himself consumed poison and he wanted to marry Subedha, so he killed the deceased. Ext. PW-1/A, was recorded on the spot by the police at about 12-1.00 a.m. Except his statement, ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 15 no other statement of any witness was recorded on 23.2.2013 at the spot. Self stated that Ext. PW-1/A, was recorded in the room of the school, where the dead body had been kept. The hammer was sealed .
by the police in his presence at the spot and it was dark at that time.
No finger prints were taken from the hammer. He admitted that the deceased and the accused were in deep love with each other and they engaged with the consent of their family members. He further admitted that when the accused came to know that the deceased had expired, he consumed poison, since he was in deep love with her.
21. PW-2, Savitri Devi, has deposed that she is a house wife and has three children. The deceased was her daughter and 6-7 months prior to the occurrence, she was engaged to the accused. After the engagement, the accused frequently used to meet the deceased.
She further deposed that on 23.02.2013, at about 10-11.00 a.m., the deceased had gone to Bhater jungle after informing her and she was accompanied by her son Sanju, where the accused came to meet her.
At that time, she had gone to Khakari to fetch articles from the shop.
She asked Sanju to come to the shop, as she would not be able to carry home all the purchased articles. Sanju went to the shop after about one hour and told her that he had been sent back by the accused stating that he would send the deceased home after sometime. The deceased also asked Sanju to return back home.
However, when he returned home, the deceased was not present there. Upon which, she made inquires from her mother-in-law and ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 16 niece Subheda. Thereafter, she alongwith her mother-in-law and Subheda went to Bhater jungle in search of the deceased and she heard someone weeping. When she went there, she found that the .
deceased was lying dead and having an injury on her head. Mobile phone, broken pieces of bangles, a dupatta and slippers of the deceased were also lying there. On the next day, she came to know that the accused killed her daughter, as he after consuming poison disclosed that he killed the deceased, since he was in deep love with her niece Subheda. This witness, in her cross examination, has admitted that she had not seen the deceased, the accused and her son Sanju together in the jungle. She further admitted that she has not seen any hammer lying on the spot. Self stated that it was recovered by the police. She deposed that at about 5.00 p.m. she returned home from the jungle and thereafter she did not go to jungle.
Her husband after going to jungle came back home early in the next morning. This witness admitted that after the engagement and till the death of the deceased both the accused and the deceased were having affable relations. Her statement was recorded by the police on 24.02.2013. As per this witness, she, her husband and son had been tutored to give such statements in the Court. On 23.02.2013, the day her daughter died, she did not meet the accused and she saw the accused in the Court while her statement was being recorded. She further deposed that she saw the accused four days prior to 23.02.2013.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 1722. PW-3, Master Sanju, deposed that the deceased was his sister and she was engaged to the accused. On 23.2.2013, he had not gone to school and at about 11.00 am, he along with the deceased .
went to Bhater jungle, for bringing fodder for the cattle. He has further deposed that his mother had gone to the shop for purchasing articles. The accused came in the jungle and he was told by the deceased to return back to home. Thereafter, he went to the shop and around 3.00 pm, he came back to home. He deposed that his grandmother disclosed to his mother that the deceased on persistent calls did not respond. So, his mother alongwith his grand mother and cousin sister Subedha went to the jungle in search of the deceased and they also took their dog with them. As per the version of this witness, his uncle Chotu asked him to bring water so, his brother Pawan took the water. Thereafter, he went to jungle, where he saw the dead body of the deceased, which was having injury on her head.
The deceased was killed by the accused. At about 6-6.30 pm, his father returned home, from the cremation ground and they heard that the accused consumed poison and he was saying that he killed his friend. In cross-examination, he could not tell the names of those boys, who told that the accused after consuming poison told that he killed the deceased. His statements were recorded at home by the police on 24.2.2013 and 26.2.2013. He denied that till 24.02.2013 it was not known as to who had killed the deceased and on 26.2.2013 he was tutored by his parents to name the accused. He denied that ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 18 his statement was recorded on 24.2.2013. He admitted that the accused never gave beatings to the deceased in his presence on 23.2.2013. He further stated that he did not see the hammer on .
23.2.2013 lying on the spot. He admitted that in the morning he, his father and mother were tutored outside the Court to make the statement. He denied that till 25.02.2013, the perpetrator of the offence was not known and a story was foisted only on 26.2.2013 to rope in the accused. He admitted that the deceased and the accused were having deep intimacy with each other.
23. PW-4, Suvidha, grandmother of the deceased deposed that the deceased was engaged with the accused. After the engagement, the accused once or twice visited their house. She has further deposed that on 23rd of February, 2013, the deceased went to Bhater jungle along with Sanju to bring fodder. Around 11-12 O'clock, it was raining on that day and her daughter-in-law had gone to the shop. On retuning back, her daughter-in-law asked her as to whether the deceased returned home or not. She informed that the deceased did not return home, so they started searching the deceased in the jungle. Sanju, Subedha and her daughter-in-law went to jungle and they also took their dog with them. Her daughter-in-law took a separate path and they started walking on a different path to the jungle. The dog was released and it started barking at the place, where the deceased was lying dead. At that place broken pieces of bangles, dupatta and slippers of the deceased were lying. In the ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 19 meantime, her younger son, namely, Chottu came there, who was informed by Subedha telephonically. Subsequently, Sukh Dev also came there and they all gathered at the place where the dead body of .
the deceased was lying. After some time they returned home and the dead body of the deceased was kept in the room of Kharkari School.
On the next day, dead body of the deceased was cremated. She has further deposed that the people of the area, during the time of cremation, were saying that the accused killed the deceased, as he did not want to marry her. People were also saying that the accused did not like the deceased. She denied that in her presence the police did not come on the spot. As per the version of this witness, she has seen the dead body being lifted to the school. She admitted that they came to know after the death of the deceased that the accused did not like her. She further deposed that she was not told by anyone that the accused did not like the deceased, It is her own belief that the deceased had only been killed as the accused did not like her. She cannot name any of those persons, who told that the deceased was killed by the accused. She deposed that her son Ram Kishan, met her in home. Self stated that on 23.2.2013, she came to Bilaspur for attending a Court case. She denied that when she, her daughter-in-
law and Subedha went to the jungle in search of the deceased, her son Ram Kishan was in the home. Ram Kishan did not meet her on the spot. They had gone about one and half kilometer on different path in search of the deceased. When they reached at the place, ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 20 where the dead body of the deceased was lying, no one else was present there. People reached at the spot after half an hour, however she cannot name those persons who came there. Self stated that she .
remember only one name, i.e. Nand Kumar. She admitted that except for broken pieces of bangles, dupatta and slippers, she had not seen anything else lying on the spot. She stated that her statement was recorded by the police on 24.2.2013 at her home. Nobody informed her that her grand daughter had been killed with the hammer. Self stated that the deceased was having injuries on her head and the police recovered a hammer. She admitted that from the time of the engagement of the deceased, till her death, there never arose a situation to snap the ties.
24. PW-5, Subedha, has deposed that the deceased was her cousin sister and she was engaged to the accused. The accused works in IPH department at Meothi and after engagement, accused, as well as the deceased had been talking to each other over phone. The accused used to tell her that he like her and not her cousin sister (deceased). She further deposed that when she fell ill and was taken to Anandpur Sahib, the accused came there to see her. Thereafter, the accused also met her once or twice at her uncle's home. On 23.2.2013 when the deceased had gone to Bhater jungle alongwith Sanju to bring grass, the accused had also come there. She came to know from her grand mother that the deceased did not return home, so she along with her grand mother went in search of the deceased ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 21 through different path, while the mother of the deceased took different path. The dog was also with them and when it started barking, they went to that place and found the dead body of the deceased lying .
there. The phone, broken bangles, dupatta and slippers of the deceased were also lying there. The blood smeared clothes of the deceased were taken into possession by the police, vide seizure memo, Ext. PW-5/A, which bears her signatures, as also the signatures of Pradhan Shakuntla Devi encircled A. She handed over her mobile phone to the police, which was taken into possession vide seizure memo, Ext. PW-5/B and bears her signatures encircled A. In cross-
examination, she deposed that she studied upto 10th standard and she is well aware of the months and years. On 23.2.2013, the police met her at the spot around 8-9.00 p.m. Her statement was recorded by the police probably on 25 or 26.02.2013. She does not know the meaning of love. She does not remember in which month the accused expressed that he loves her. She did not disclose this fact to any one at home that the accused said her that he was in love with her. After the death of the deceased she disclosed this fact at home to her grand mother. As per this witness, she disclosed to the police that Sanju and the deceased went together to the jungle for fetching fodder, where they met the accused. It is wrong to suggest that she along with some other person killed the deceased, so blood stains were on her clothes. She stated that she hold the dead body of the deceased for about 2-3 minutes. She cannot say as to where the blood stains were ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 22 on her clothes. She handed over her clothes to the police at home, but she does not remember the exact date. She cannot tell at which time they reached the spot. The number of villagers gathered at the spot .
afterwards, but she cannot tell their names. The deceased had been engaged to the accused one year prior to her death. It is incorrect that she had been frequently talking to the accused over phone. Self stated that she talked to the accused once or twice over the mobile phone of the deceased. She stated that she had not seen the deceased and Sanju going together to the Jungle for bringing grass. She further stated that she had not seen the accused on the day of occurrence in the jungle.
25. PW-6, Chotu Ram, has deposed that the deceased was his niece and engaged to the accused 5-6 months prior to her death. The accused used to talk her over the phone. He also talked to the accused many times. On 23.2.2013, the accused telephoned him over his mobile phone, bearing No. 97367-44626 and on asking, the accused disclosed that he was upset, however, the accused did not disclose the cause of his being upset. On that day he had gone to his maternal uncle's house and reached back home at about 2-2.30 p.m. where he found that the deceased was not at home. Thereafter, they went in search of the deceased. The dog was also with them and it started barking at the place, where the dead body of the deceased was lying. In his cross-examination, he deposed that it was told to him by the deceased that the accused likes his daughter (Subedha). He ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 23 further deposed that he did not see the accused killing the deceased with his own eyes, but Sanju told him that the deceased was killed by the accused. He also told him that he had seen the accused at the .
spot. He deposed that he does not know the mobile number of the accused. As per this witness, the police made inquiries from him on 25.02.2013, on which day his statement was also recorded.
26. PW-7, Nand Kishore, deposed that on 23.02 2013, he gone to Shri Naina Devi Ji. Sukh Dev called him over telephone, when he told him that he was at Naina Devi. He was asked by Sukh Dev to return back to village as early as possible. He deposed that a girl had been killed by the name of Champa Devi in Bhater jungle. Thereafter, he had gone to Bhater jungle, where dead body of the deceased was lying. The deceased was covered with a cloth and three persons, namely, Sukh Dev, Paramjeet and Chotu Ram were present there. He lifted the cloth and noticed that there were injuries on the head of the deceased. Thereafter, he rang up the police at Police Post Shri Naina Devi Ji at 6.10 pm. Two Head Constables of Police Post Shri Naina Devi Ji also came on the spot. They also saw the dead body and noticed the injuries on her head. At some distance, a hammer was found lying in the bushes by Station House Officer. Photographs of the spot were clicked. The dead body of the deceased was lifted from the spot and taken to a room of Primary School at Sandoti. There were three visible injuries on the head of the deceased. Thereafter, the ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 24 dead body was taken to Bilaspur for postmortem. On 24.2.2013, he alongwith Station House Officer Kot and Police Post Shri Naina Devi went to the spot from where a hammer was recovered at a distance of .
25 feet from the dead body.
27. PW-8, Pawan Kumar son of the complainant and brother the deceased was subjected to preliminary examination being a child witness. He deposed that he used to work as a salesman in a shop at Shri Naina Devi Ji. As per this witness, on 23.2.2013, he was in the school and when he returned home, he found no one in the home. So, he went to the house of his uncle Chotu Ram and found that son of his uncle, namely, Vijay Kumar, who told him that his father asked him to bring water. Thereafter, they went to jungle with water and saw the dead body of the deceased. As per the testimony of this witness, his grand mother, mother, aunt Ram Kali and cousin sister Subedha were present on the spot and blood was oozing from the head of the deceased. The mobile phone and slippers of the deceased were lying on the spot and Subedha gave a mobile phone to him. In the evening, his maternal grand father Sukh Dev and one Nand Kishore had come on to the spot. He and Vijay Kumar then came to home and took a cot from home to the spot. As per this witness, on 24.2.2013, he handed over a mobile phone mark OIPRO (Ext. P-
26) to the police, vide seizure memo Ext. PW 7/E, which bears his signature encircled in circle B. The mobile was put in a cloth parcel ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 25 and seal with six seal impressions T. Seizure memo was signed by Sukh Dev and Nand Kishore as witnesses. This witness in his cross-
examination deposed that the mobile was handed over to him by .
Subedha Devi on the spot. Police did not reach the spot prior to his departure.
28. PW-9, Pawan Singh, the then Vice President of Gram Panchayat Kahrkari, deposed that on 25.2.2013, Suvedha had produced before the police one mobile phone having number 97367-
r to 44626, which was sealed by the police in a cloth bag, vide seizure memo Ext.PW-5/B. The seizure memo bears his signature encircled in circle B and Shakuntla Devi signed it in circle C. On the subsequent day, the accused produced a mobile phone of Lava, black in colour, which was also seized by the police vide seizure memo Ext.
PW9/A, which bears his signatures encircled in circle 'A' and Shakuntla Devi also signed in circle 'B'. The parcel was opened and found that a mobile phone make Lava black in colour, Ext. P-28, is to be the same. The shirt, Ext. P-2, Salwar, Ext. P-3 and Shawl, Ext. P-
4, are also found to be the same. As per this witness, he deposed that on 27.2.2013, the accused made a disclosure statement, Ext. PW-9/B in his presence and in the presence of Constable San Kumar. In consequence of the disclosure statement, pant and shirt were got recovered by the accused from his house, vide seizure memo, Ext.PW 9/C, which bears his signature in circle 'A' and that of Pammi Lal in ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 26 circle 'B'. In his cross-examination, he stated that he does not remember the place, where the accused produced his mobile phone.
He admitted that at that time, the accused was in police custody.
.
Accused Balbir Singh was arrested after 3-4 days from 23 2.2013, when the accused made disclosure statement, Ext PW-9/B, he was in custody and made statement at Police Station. He could not name and tell the rank of the police official, who recorded the disclosure statement of the accused. He could not also tell the date on which, the accused was arrested. He has stated that on 27.2.2013, pant and shirt of the accused were seized.
29. PW-10, Pammi Lal, deposed that on 27.02.2013, the police came to the house of the accused and at that time, Pawan Singh (PW-9) was also present there. Police recovered pants Ext P.30 and shirt Ext. P-31, shown to him at his house. This witness, in his cross-examination, stated that his house at a distance of half kilometer from the house of the accused. His house comes first thereafter the house of accused comes. He denied that accused led the police party to his house and from where he got recovered his pants and shirt. He does not know that the accused told the police that he had been wearing the said pants and shirt at the time of occurrence. He further denied that pants and shirt were sealed in his presence and thereafter seized, vide memo Ext. PW-9/C. He has admitted that memo Ext. PW-9/C, bears his signature encircled in ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 27 circle 'B'. He denied the fact that their signatures are there on parcel, Ext. P.29 encircled in circle 'B' and specimen of seal mark 'Z' encircled in circle 'A'. He further stated that he had not made any .
such statement to the police.
30. PW-11, Dharamender Singh, deposed that he remained posted as Computer Instructor at Government Senior Secondary School, Saloa. As per this witness, on 23.02.2013, he was going on his motorcycle to School, accused met him on the way, when he gave him a lift. He dropped him at Gawandal near Shri Naina Devi Ji. He stated that on 25.02.2013, he came to know that the fiancée of the accused had died. In his cross-examination, he denied that he told the police that the accused was having an umbrella and a bag in his hand, when he gave him lift. He denied that when the bag struck his leg, while on motorcycle, he asked the accused, as to what was there in it.
31. PW-12, Neeraj Kumar, deposed that he runs a sweets shop at Gwandal Chowk, Shri Naina Devi Ji. In the morning of 23.02.2013, the accused came to his shop and purchased five "Center Fruit" toffees. This witness, in his cross-examination, admitted that milkmen and others purchase toffees from shop before going to the jungle for grazing graze cattle. This witness has specifically denied that on 23.02.2013 no toffees were purchased by the accused. He did not issue any cash memo qua selling the toffees to the accused. As ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 28 per this witness, police made inquiries from him qua sale of the toffees. He has denied that it is wrong that police officials told him that they were to take wrappers of toffees to place them somewhere.
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He saw the accused for the first time on 23.02.2013 and thereafter saw him in the Court. He deposed that he could recognize the customers who purchased toffees on 23.02.2013, but, he does not know their names, parentage and places of residence. He denied that he sells illicit liquor in his shop and out of fear he became a witness.
32. PW-13, Paramjeet to Singh, who is an deposed that on 23.02.2013, at about 03:00 p.m., after work he returned home. At about 3.30 p.m., on hearing the cries of Chhotu agriculturist, and others, he came to know that the daughter of Ram Krishan had died. He followed the people, who were running towards the jungle.
He has further deposed that in jungle the deceased was lying dead sideways and nothing was recovered in his presence. Police reached the spot and recovered a hammer and the corpse of the deceased was shifted to hospital for postmortem examination. As per this witness, after 3-4 days the accused was arrested and on 28.02.2013 the accused, while in custody, disclosed that he could show the place where he killed the deceased. Disclosure statement in this regard is Ext. PW-13/A, which bears his signatures encircled in circle 'A' and signatures of Karam Singh and that of the accused are encircled in circles 'B' and 'C', respectively. Therefore, the accused led the police ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 29 party to the place of occurrence and also to the place where he had thrown the hammer after committing the offence. He has further deposed that memo Ext. PW-13/B was prepared, which bears his .
signatures encircled in circle 'A' and the signatures of Karam Singh are encircled in circle 'B'. Patwari of Patwar Circle Makri and Patwari of Patwar Circle Shri Naina Devi Ji visited the spot. This witness, in his cross-examination, admitted that on 23.02.2013 the police recovered broken pieces of bangles, two Centre fruit toffees, a pair of slippers, some hair, hammer, blood soaked soil from the spot. He further admitted that it was quite dark and raining when the police reached the spot. As per this witness, firstly, the dead body was removed from the spot to Sandhot School and thereafter it was sent to the hospital. Around 08.30 p.m. the hammer was picked up by the police from the spot. He reached the spot at 03.30 p.m. where dead body was lying and the police reached there at about 07.00 p.m..
From 03.30 p.m till 08.30 p.m. he did not see the hammer and it was lying at a distance of 5 to 10 feet from the dead body. As per the deposition of this witness, the hammer was recovered by the police with the help of a search light. Police remained at the spot till 12 O'clock in the night. He has further deposed that except for the recovery of the dead body, the police did not prepare any other document on the spot.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 3033. PW-14, Sodhi Ram, deposed that he runs a small shop at Janali and the accused is known to him. As per this witness, on 24.02.2013 the accused came to his shop and took Rs. 50/- from .
him. He does not know what he did with that money. This witness, in his cross-examination, he admitted that the police made inquires from him. He further deposed that he is acquainted with Sonu. He feigned his ignorance whether the accused gave Rs. 30/- to Sonu for purchasing insecticides for killing rats. This witness denied that he gave such statement to police and heard portion A to A of his, which is mark SR, which he stated to be incorrect. As per this witness, he did not give any such statement to the police. He has further deposed that the accused hails from his village.
34. PW-15, Master Sonu (child witness) deposed that he does not know the accused and he never met him. He saw the accused for the first time in the Court. Inquiries were made by the police from him and his statement was recorded. He denied that on 24.02.2013 the accused gave him Rs. 30/- for purchasing two packets of insecticides to kill rats. This witness also denied that he had purchased such packets from the shop of Jai Chand, which he handed over to the accused. He heard portion A to A of his statement, which is H, which he stated to be wrong and incorrect. As per this witness, he never gave such statement to the police. As per ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 31 this witness, he was asked by the relatives of the accused to resile from his previous statement recorded by the police.
35. PW-16, Budhi Singh, the then Pump Operator, Water .
Supply Scheme at Tarwar deposed that the accused had been working as a Water Guard. On 24.02.2013 during the day time the accused came to him and at that time he was sad and he told that his friend has been killed by someone. Subsequently, he left the place. This witness, in his cross-examination, deposed that the police inquired from him. He denied that the accused confessed before him that he had murdered the deceased and committed a sin. As per this witness, he and the accused worked together for a year at the aforementioned scheme.
36. PW-17, Rakesh Kumar, who used to work in a tea stall situated at New Bus-Stand, Shri Naina Devi Ji, deposed that on 03.03.2013 police came to New Bus stand Shri Naina Devi Ji, and on search recovered a broken SIM of Reliance from besides the railing. The police took into possession the broken SIM vide seizure memo, Ext. PW-
17/A, and put the same in a match box, which was sealed in a cloth parcel. As per this witness, Sucha Singh was also present there at the time. He and Sucha Singh signed the memo and their signatures are encircled in circles 'A' and 'B' respectively. He has further deposed that parcel was also signed by them. Specimen of seal 'U' was taken on a piece of plain cloth, Ext. PW-17/B, which bears his signature encircled ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 32 in circle 'A' and that of Sucha Singh encircled in circle 'B'. His statement was recorded by the police at New Bus Stand Shri Naina Devi Ji. He did not disclosed to the police the SIM number in his statement.
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37. PW 18, Dr. Kapil Chopra, deposed that on 27.02.2013 he medically examined the accused on an application moved by the police, copy of which is Ext. PW-18/A. As per this witness, he found nothing suggestive of the fact that the accused was incapable of performing sexual intercourse. In this regard he issued MLC, Ext. PW-18/B, which is in his hand and bears his signatures.
38. PW-19, Dr. Snita Devi, the then Medical Officer, Civil Hospital Anandpur Sahib, desposed that on 24.2.2013, he had examined the accused, at about 6.00 p.m., who had history of intake of rat poison, which he had stated to have taken in the morning. Patient was co-operative, conscious, well oriented to time, place and person and his vitals were stable. He was given I.V. Fluid and injections for vomiting during the treatment and was kept under observation. At 09.00 p.m. when the patient had altered consciousness, with irrelevant talks, although his vitals were stable, he was referred to C.H. Ropar/PGI, Chandigarh, for further treatment and management. The patient did not vomit in the hospital.
39. PW-20, Roshan Lal, the then Patwari, at Patwar Circle Shri Naina Devi Ji, deposed that on 28.2.2013 he remained associated with the police. As per this witness, on that day Madan Lal, Patwari, Patwar Circle, Bhakra was also present, alongwith the accused and other ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 33 villagers. The accused was in custody of the police and he was taken to the place of occurrence. The accused identified the spot. He took the revenue record alongwith him to the spot. He prepared aks sajra, Ext.
.
PW-20/A, on the spot, which bears his signatures, and in the same the exact spot of occurrence has been depicted by him through a red dot.
He handed over jamabandi, Ext. P-20/B, and aks sajra, Ext. PW-20/A, to the police. This witness, in his cross-examination, deposed that before 28.02.2013, police visited the spot.
40. PW-21, Jai Chand, Shopkeeper, who used to run a Grocery shop at Janali, deposed that on 24.2.2013 neither anyone came to his shop, nor anyone purchased rat poison. He denied that on 24.02.2013 one Sonu came to his shop and purchased two packets of rat poison for Rs. 30/- from him. He denied that he had read his statement, mark 'J', which was recorded by the police. As per this witness, he was compelled by the police to give statement. He deposed that he did not lodge any complaint in this regard before the Senior Police Officers. He further stated that accused is well acquainted to him as he is resident of his Panchayat.
41. PW-22, Ganga Narain Jha, the then Nodal Officer, Vodaphone Limited, deposed that on receipt of e-mail from S.P. Office Bilaspur, Ext. PW-22/A, he provided Call Detail Report qua Mobile No 97366-60618. He has further deposed that billing address of the aforesaid mobile No. was 'Balbir Singh, House No.103/1 Village Miyoth, Bilaspur'. Call Detail Report had been generated through computer ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 34 system, certificate in this regard is Ext. PW-22/C. As per the version of this witness, police did not enquire from him qua the mobiles number of Subedha and the deceased.
.
42. PW-23, Tarsem Lal, Driver, feigned his ignorance qua any motorcycle and de deposed that on 23.02.2013, he neither met the accused nor gave him lift on the motorcycle. This witness, in his cross-
examination, has feigned his ignorance that during police inquiry, he disclosed that in the afternoon of 23.02.2013, the accused met him near Balighat.
43. PW-24, Devinder Verma, the then Nodal Officer, Airtel, deposed that on receipt of e-mail from S.P. Office Bilaspur, Ext. PW-
24/A, he provided Call Detail Report qua Mobile No 88948-18415, billing address whereof was 'Pawan Kumar, son of Shri Sunder Singh, r/o 3/1, Village Shari, P.S. Dhalli, Tehsil and District Shimla, H.P.'. As per the version of this witness, Call Detail Report was generated through computer, so it does not require any signatures. He did not issue any certificate to the effect that the Call Detail Report was computer generated.
44. PW-25, Shashi Kant Verma, the then Nodal Officer, IDEA Cellular Limited, deposed that on receipt of e-mail from S.P. Office, Bilaspur, Ext. PW-25/A, he provided Call Detail Report qua Mobile No. 98821-15410, which was computer generated and did not require any signatures. This witness further stated that the billing address was of the said Mobile Number was 'Balbir Singh, son of Shri Satpal Singh, ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 35 resident of Village Miyoth, Tehsil Shri Naina Devi Ji, District Bilaspur H.P.' This witness, in his cross-examination, deposed that he did not give any certificate on Call Detail Report that it is computer generated.
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45. PW-26, Sumit Kumar, the then Nodal Officer, Reliance Communications Ltd., deposed that on receipt of e-mail from S.P. Office Bilaspur, their mobile company provided Call Detail Report qua Mobile No. 98177-01634, which was computer generated report and did not require any signaturse. Billing address of the said Mobile Number was 'Balbir Singh, son of Shri Satpal Singh, resident of Village Miyoth, Tehsil Shri Naina Devi Ji, District Bilaspur, H.P.' Call Detail Report had been generated through computer, certificate whereof is Ext.PW-26/C.
46. PW-27, Constable Hushan Lal, deposed that on 27.2.2013, five parcels stated to be containing clothes, vaginal swabs, vaginal slides, blood samples and hair of the deceased alongwith sample seal of RH Bilaspur and five more parcels of the exhibits lifted from the spot were handed over to him by MHC Suresh Kumar vide R.C. No. 17/13 for depositing the same at SFSL Junga. He further deposed that after depositing the said parcels in SFSL Junga on the same day, he handed over the receipt of the same to MHC Suresh Kumar and in his custody, the said parcels were not tampered with.
47. PW-28, Constable Suneel Kumar, deposed that on 4.3.2013, six parcels stated to be containing clothes, pubic hair, head hair, nail pieces, and blood samples of accused alongwith sample seal in a sealed envelope were handed over to him by MHC Suresh Kumar ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 36 vide R.C. No.22/13 for their deposit at SFSL Junga, which were deposited by him on the sme day, receipt whereof was handed over to MHC Suresh Kumar. This witness further stated that till the time .
parcels remained with him, the same were not tampered with.
48. PW-29, Constable Satish Kumar, deposed that on 23.02.2013 information was received in the Police Station Kot that a dead body of a girl was lying in the jungle of Bhater. He, SHO and other police officials had visited the spot and as it was dark and raining, they returned. As per the version of this witness, he took photographs of the dead body and also videographed the scene of occurrence through his personal mobile phone. Rukka, Ext. PW-1/A, was handed over to him by the SHO, which he took the police station, whereupon FIR, Ext. PW-
29/A, was registered, which bears the signature of ASI Parkash Chand in red circle 'A'. He has further deposed that he took the file from the police station to the spot and gave it to SHO. On 28.2.2013, the accused led the police party to the place of occurrence and identified the spot, where he had committed the murder. As per the version of this witness, the photographs, after being developed, were handed over to the I.O. This witness, in his cross-examination, he admitted on that day he was not shown the photographs, which he had clicked and developed. He feigned his ignorance when they reached the spot. He did not take any photographs of the police officials while they were conducting the investigation on the spot. He has further deposed that many villagers were present there. He did not see any dog on the ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 37 spot, as it was dark. As per the deposition of this witness, they remained on the spot near the dead body till 01:30 p.m. on the next day and came to the police station and other police officials remained there.
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During the period of his stay on the spot, no statement of any of the witness was recorded.
49. PW-30, Constable Mukesh, deposed that on 27.02.2013, MHC Suresh Kumar handed over to him five sealed parcels of viscera, copy of FIR, police docket, copy of postmortem report, copy of inquest report and specimen of seal for being deposited at RFSL, Mandi, which he had deposited on the same day. He has further deposed that on his return to the police station he handed over the receipt qua deposit of the parcels in RFSL, Mandi, to MHC. As per the version of this witness, till the case property remained with him, it was not tampered with.
50. PW-31, Dr. N.K. Sankhyan, the then Medical Officer, P.G. Forensic Medicine and Toxicology, deposed that on 24.02.2013, application, Ext. PW-31/A, alongwith inquest report, Ext.PW-31/B, was moved by the police requesting him to conduct postmortem of the deceased. The dead body was brought by Lady Constable Hem Lata No. 355 and ASI Dalip Chand, Police Station Kot, District Bilaspur, H.P. Dead body was brought from a jungle of Naina Devi Ji District Bilaspur, H.P., and the same was identified by one Sant Ram and Chhotu Ram. Police came to know about the death on 23.02.2013 at ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 38 06.10 p.m.. As per this witness, on 24.02.2013, viscera and other samples were dispatched for chemical examination at 12.15 pm. As per information furnished by the police, dead body of the deceased .
was found in a jungle near Village Bhather with head injury. Hammer was also found about 25 feet away from the dead body alongwith its handle (dasta). He has further deposed during the postmortem examination he noticed as under:
"Dead body was of a young adult female having length 150 cms. Deceased was wearing redish coloured "Kamij and Salwar" which were wet and soiled with earth. "Salwar" was stained from inner side on front probably with semen/secretions. Deceased was wearing cream coloured Bra golden coloured metallic nose pin, golden coloured metallic ring around index finger of left hand, golden coloured matellic ring around ring finger of left hand, red thread (Dori) around neck with silver coloured metallic locket and two glass bangles around left wrist Red "Pronda"
in scalp hair with steal hair clip on left side of scalp."
He has further stated that Rigor mortis was present all over the body, bluish purple coloured hypostasis was present on the back surface of the body and was fixed. The body was not cooled down to the room temperature, however, exact room and rectal temperature could not be recorded due to lack of facility. Pink nail polish in nails of toes and fingers and also submitted the details of antimortem. On examination of abdomen, walls, peritoneum, mouth pharynx and Esophagus were normal and as explained earlier, stomach was normal and was containing grayish semi liquid material about 10 ml. Small intestines ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 39 were normal and were having fluid and gases. Large intestines were normal and having scant feces and gases. Lever, spleen and kidneys were normal and congested. Bladder was also normal and empty. No .
injury to external genital. Hymen was ruptured, one finger inserted easily and two fingers were going with very difficulty on P.V. examination ovaries, fallopian, tubes and uterus were normal, non gravid uterus, pubic hair were saved, vaginal swab and vaginal smear slides were taken and sealed. This witness, in his opinion, opined that the deceased died due to antemortem head injury. Possibility of attempt of throttling and smothering could not be ruled out.
Possibility of sexual intercourse could not be ruled out in this case and as per his separate final opinion based on the report of the chemical examiner, no semen was detected in the exhibits collected by him. Human blood group "O" was detected on the shirt, bra and salwar of the deceased, the same blood group was also detected on the soil and leave lifted from the spot. Hair sample taken by him matched with the exhibit of hair lifted from the spot. The hair did not match with the hair of the accused. After going through the report of chemical analyst his final opinion remained the same as above.
Probable time elapsed between injury and death was within few minutes to few hours and probable time between death and postmortem examination was 12 hours to 24 hours. He issued postmortem report, Ext. PW-31/C, which bears his signatures. He handed over the dead body of the deceased to the police after ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 40 postmortem examination alongwith the postmortem report and inquest report. He also hand over the ornaments of the deceased as mentioned in the postmortem report, clothes of the deceased after .
being sealed in a cloth parcel with five seals. Viscera of the deceased, i.e. stomach small intestines, pieces of liver, spleen and kidney were sealed in two glass jars after adding the preservative, salt granules.
One sealed vial containing blood of the deceased, another sealed vial containing scalp hair and a tube containing blood of the deceased for conducting D.N.A. test a sealed parcel containing vaginal swabs and two slides of vaginal smear, a sealed envelope containing letter for chemical examiner alongwith copy of postmortem report and inquest report, addressed to RFSL, Mandi, another sealed envelope containing a letter to Director, SFSL, Junga for examination of vaginal swab, vaginal smears, clothes for testing the presence of semen, blood and hair for DNA testing alongwith postmortem report and inquest report alongwith two sample seals with seal impressions used for sealing as "Himachal Pradesh Kashetria Parishad Janta Janardan" handed over to the police. Hammer, Ext. P-9, was not shown to him by the police, when the postmortem had been conducted on the dead body of the deceased. He denied that better opinion could have been given, had the hammer, Ext. P-9, been shown to him at the time of conducting the postmortem. He admitted that a fissured fracture mean a linear or a crack. For the lacerated wound a blunt weapon with heavy force could have been used. Injury No. 9 fissure fracture is due to the ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 41 impact of the injury No. 5. It is correct that injury No. 9 has not been caused by a separate blow, but it was caused due to the transportation of force from injury No. 5 to injury No. 9. There was no .
pattern of the weapon on any of the injuries. He denied that laceration is not possible with hammer, Ext. P-9. He denied that a lacerated wound is possible by a sharp edged weapon.
51. PW-32, HC Suresh Kumar, brought the requisitioned record, which was deposited by ASI Daleep Singh with him on 24.02.2013, i.e., one parcel sealed with five seals, containing clothes of the deceased, a plastic container sealed with two seals, containing stomach and small intestines of the deceased, another plastic container sealed with two seals, containing liver, spleen and kidney of the deceased, a sealed parcel sealed with three seals, containing SALT of the deceased, one glass bottle sealed with a seal, containing blood of the deceased, a glass tube sealed with a seal, containing blood of the deceased for DNA test, a glass bottle sealed with a seal, containing hair of the deceased, a cloth parcel sealed with three seals, containing vaginal swab, two slides and vaginal smear of the deceased, two sample seals of Regional Hospital, Bilaspur, one enveloped addressed to RFSL, Gutkar, duly sealed with seal and an envelope addressed to Director FSL, Junga, duly sealed. All the parcels were sealed with seals having impression "Himachal Pradesh Kshetrya Parishad Janta Janardhan". On the same day Inspector ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 42 Tilak Raj deposited with him a cloth parcel, which was sealed with three seals of impression 'T', which stated to have contained a hammer, another parcel duly sealed with three seals having .
impression 'T', containing 'V' shaped slippers, mark Lakhani, broken pieces of bangles and two Center Fruit toffees, which were lifted from the spot; a cloth parcel sealed with three seals, having impression 'T', containing sample of blood, blood stained soil and grass, a cloth parcel duly sealed with three seals having impressions 'T', containing hair of the deceased lifted from the spot, another parcel duly sealed with three seals, having impression 'T', a control sample of soil lifted from the spot another parcel duly sealed with three seals, having impression 'T', containing a white mobile phone, mark OIPRO having one SIM card, a parcel duly sealed with six seals, having impression 'H', stated to have contained mobile phone having SIM card bearing No. 97367-44626 sample seal of seal impression 'T'. As per this witness, on 26.02.2013, Inspector Tilak Raj, deposited with him a cloth parcel, duly sealed with five seals, having impressions 'K', which stated to have contained the clothes handed over by Subedha Kumari along with sample seal 'K', a parcel duly sealed with six seals, having impressions 'A', containing Lava mobile phone of the accused, and a sample seal. He deposed that on 27.02.2013, Inspector Tilak Raj, deposited with him a cloth parcel, which was duly sealed with six seals, having impressions 'B', stated to have contained the clothes of the accused, another sealed parcel sealed with three seals, having ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 43 impression 'CHC Ghawandal', stated to have contained clothes of the accused, a parcel with sealed with three seals, having impression, 'CHC Ghawandal', which stated to have contained samples of pubic .
hair, scalp hair and finger nail of the accused, an envelope, which was duly sealed with two seals, having impressions 'CHC Ghawandal', stated to have contained blood sample of the accused, an envelope containing sample seal and another envelope addressed to Director FSL Junga. He has further stated that on 27.02.2013, vide R.C No. 17/13, he sent the parcels mentioned at Sr. Nos. 1, 6 to 9 and 11 of entry at Sr. No. 256, parcels mentioned at Sr. Nos. 1 to 5 of entry at Sr. No. 257 to FSL Junga, through Constable Hussan No 202, for chemical analysis. He sent the parcels mentioned at Sr. No. 2 to 5 and 10 of entry at Sr. No. 256 alongwith sample seal to RFSL, Gutkar, for chemical analysis. He deposed that on 04.03.2013, vide R.C No. 22/13, he sent the parcels mentioned at Sr. No. 1 to 6 of entry at Sr. No. 259 to FSL Junga, through Constable Sunil Kumar No. 451, for chemical analysis. On receipt of parcels alongwith results, he made entries in the Malkahana register. This witness, in his cross-
examination, denied that he made false entries in the Malkhana register as well as Road Certificate register.
52. PW-33, ASI Parkash Chand, entered rapats No.21 (A), dated 23.02.2013, 26 (A) and 28(A) dated 24.02.2013 in the computer installed at Police Station. No tampering or editing was done while ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 44 entering the rapats. He also issued CIPA certificate, which is Ext.PW-
33/D.
53. PW-34, ASI Parkash Chand, deposed that .
on 24.2.2013, he was officiating SHO of Police Station, Kot-Kehloor.
On the basis of statement of Shri Kishan Singh, Ext. PW-1/A, recorded under Section 154 Cr.P.C., received through Constable Satish Kumar, he registered FIR, Ext. PW-29/A, which bears his signatures encircled in circle 'A'. He made an endorsement, in circle 'B', on the FIR, which is Ext. PW-1/A. Thereafter, he sent the case file through the same Constable to the spot. This witness, in his cross-
examination, deposed that Constable reached Police Station at about 02:45 a.m.
54. PW-35, SI Jai Gopal, deposed that on 01.05.2013, he recorded the statements of Head Constable Suresh Kumar, Constable Hussan Lal, Constable Mukesh Kumar and Constable Sunil Kumar. As per this witness, on 06.05.2013, he also recorded the statement of Constable Satish Kumar.
55. PW-36, ASI Shyam Lal, deposed that on 03.03.2013, he was called by Station House Officer, Police Station, Kot Kehloor, in the presence of Sucha Singh and Rakesh Kumar. Station House Officer conducted a search near the railing and a SIM card broken into two pieces, was recovered, which pertained to Reliance Company.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 45Both the pieces of SIM card, after being put in a match box, were sealed in a cloth parcel, which was sealed with three seals of impression 'U'. The seal after its use was handed over to witness .
Rakesh Kumar. Site plan of the spot was prepared by the Station House Officer. He has admitted that he was not aware about history of the case qua which the recovery was effected.
56. PW-37, Inspector Tilak Raj, deposed that on 23.02.2013, around 06.35 pm, he received information from Police Post, Shri Naina Devi Ji, that a dead body of a young girl aged 16-17 years was lying in Bhater forest. He alongwith SI Jagat Singh, ASI Daleep Chand, ASI Harpal, Constable Satish, Lady Constables Hem Lata and Amandeep and two Jawans of Home Guard, went to the spot. As per the version of this witness, on reaching the spot, they found a dead body of a girl and there were injuries on her head. The head was soiled with blood. Photographs of the dead body, Ext.PW37/A-1 and Ext.PW37/A-2, were clicked. The dead body was shifted to Government Primary School, Sandroti, and two police officials were deputed, as Guards on the spot. In the school premises, inquest report, Ext.PW31/B, was prepared and the dead body was sent for postmortem examination to Regional Hospital, Bilaspur, under the supervision of ASI Daleep Chand and Lady Constable Hem Lata.
Rukka was sent, through Constable Satish to Police Station, where upon FIR, Ext.PW29/A, was registered. Site plan of the spot, Ext.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 46PW37/B, was prepared. He has further deposed that during the course of investigation, police took into possession, pair of V shaped slippers, mark Lakhani, Ext. P11, broken pieces of bangles, Ext. P12, .
and two toffees of center fruit, Ext. P13, were recovered, which, after being sealed in a cloth parcel, were sealed, and taken into possession vide seizure, Ext.PW7/B, in the presence of Nand Kishore and Sukh Dev. Blood stained hair, Ext. P17 and Ext.P19, also seized from the spot after sealing in a cloth parcel and taken into possession vide seizure memo, Ext. PW7/C. Soil smeared with blood and control sample of soil, Ext. P21 and Ext. P24, alongwith grass were seized vide seizure memo, Ext. PW7/D, in the presence of Nand Kishore and Sukh Dev. As per the version of this witness, Pawan Kumar produced a dual SIM mobile phone, Ext. P26, of the deceased, which after being sealed in a cloth parcel, was seized, vide seizure Ext.
PW7/E, in the presence of Nand Kishore and Sukh Dev Singh. The mobile contained a SIM and another SIM was found missing.
Specimen of seals Mark-Z, Ext.PW37/C and Ext.PW37/D, were taken on plain pieces of clothes, Ext.PW13/C and Ext.PW13/D. On the same day, MHC informed him that in a poison case a boy had been admitted in hospital at Anandpur Sahib. However, he was brought to CHC Ghawandal, where he was admitted. He has further deposed that on 25.02.2013, when the accused was discharged from CHC Ghawandal, he was arrested in this case. On that day, Subedha, handed over a mobile, Ext. P6, which after being sealed in a cloth ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 47 parcel was seized vide seizure memo, Ext.PW5/B, in the presence of witnesses Pawan Kumar and Shakuntla Devi. He has further deposed that on 26.06.2013, mobile phone, Ext. P28, of the accused was .
seized after being sealed in a cloth parcel, vide seizure memo, Ext.
PW9/A, in presence of witnesses Pawan Singh and Shakuntla Devi.
He stated that on the same day, Subeda handed over her shirt Ext.
P2, salwar Ext. P3 and Shawl Ext.P4, which, after being sealed in a cloth parcel, were seized vide seizure memo, Ext. PW5/A, in presence of Pawan Singh and Shakuntla Devi. As per this witness, 27.02.2013, the accused made a disclosure statement, Ext. PW9/B, in the presence of witnesses Sanjay Kumar and Pawan Singh and pursuant thereto he recovered pants Ext. P30 and shirt Ext.P31, which were allegedly worn by the accused at the time of the incidence. They were seized vide seizure memo, Ext.PW9/C, after being sealed in a cloth parcel in presence of witnesses Pawan Singh and Pammi Lal. He has further deposed that on 03.03.2013, during the course of interrogation, the accused disclosed that after breaking the SIM, he threw it in a bus, having registration No. HP-69-1491, which leaves Naina Devi bus stand at 01.00 PM towards Nalagarh. He made inquiry from Sucha Singh, who disclosed that after cleaning the bus they threw the garbage near the railing. On search, two pieces of SIM, Ext. P34, were recovered, which after being sealed in a cloth parcel, were seized, vide seizure memo, Ext.PW17/A, in the presence of Sucha Singh, Rakesh Kumar and ASI Shyam Lal. Specimen of used ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 48 seal was taken on a piece of plain cloth, Ext.PW17/B. He deposed that he recorded the statements of Tarsem Lal, Ext.PW37/J Pammi Lal, Ext. P37/K, Dharminder Singh, Ext.PW37/L, Sonu, Ext.
.
PW37/M, Sodi Ram, Ext. PW37/N, Jai Chand, Ext. PW37/P, and Budhi Singh, Ext.PW37/Q. This witness, in his cross-examination, deposed that it was a blind murder and the accused wanted to marry the cousin sister of the deceased, namely, Subedha Devi or he wanted her to become his sister-in-law (Bhabhi). This fact was stated by Chhotu Ram and Subedha Devi. He admitted that there is no such mention in the statement of Subedha Devi recorded, under Section 161 Cr. P.C, earlier mark-S, Ext. DX. Subedha Devi was not an accused in the case. He denied that despite making thorough inquiries from Subedha Devi, the motive behind the murder was unearthed. He has stated that Chhotu Ram did not disclose to him that instead of the deceased, he wanted to marry his daughter Subedha Devi. He denied that on 23.02.2013 Ram Kishan (PW1), Savitri Devi (PW2), Sanju (PW3), Suvidha (PW4) and Subedha (PW5) met him on the spot. As per this witness, on 26.02.2013, statement of Sanju was recorded in the house of Ram Kishan. He denied that in order to mark the presence of Sanju in the jungle, his statement was recorded at a belated stage with due deliberation. Hammer was not recovered on the evening of 23.02.2013 and the hammer was recovered around 2.00 p.m. He has stated that he did not take any finger prints from the spot and the hammer was not blood stained.
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 49Photographs were taken with a digital camera. He admitted that on 09.04.2013 the accused was contacting Subedha over telephone, as he came to know through Call Detail Report that the accused had .
been telephoning Subedha. He denied that Call Detail Report was received after 09.04.2013. He admitted that Subedha handed over her blood stained clothes to the police. Clothes of Subedha were taken into possession, as before the doctor, the accused disclosed that he and Subedha murdered the deceased. This statement was made by the accused on 25.02.2013. He denied that Subedha with some other person committed the murder of the deceased.
57. PW-38, Krishan Chand, the then Criminal Ahlmad in the office of learned Chief Judicial Magistrate, Bilaspur, brought the requisitioned record, i.e. file pertaining to Criminal Case, bearing No. 118/2 of 2013, titled State of H.P vs. Balbir Singh @ Beeru. Certified copy of statement of the accused is Ext. PW-38/A, certified copy of the application for medical examination of the accused to Medical Officer, CHC, Ghawandal is Ext. PW-38/B, certified copy of Medico Legal Certificate is Ext. PW-38/, certified copy of OPD slip is Ext. PW-
38/D, certified copy of application for medical examination of the accused to Medical Officer, CHC, Anandpur Sahib, is Ext. PW-38/E, certified copy of discharge slip is Ext. PW-38/F, certified copy of recovery memo is Ext. PW-38/G and certified copy of report of FSL is Ext. PW-38/H, which are true and correct as per the record which he ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 50 brought in the Court. This witness, in his cross-examination, denied that all the above mentioned documents were submitted by the police and there are additions and alterations in the documents.
.
58. PW 39, HC Sukh Dev, brought the register and copy of FIR No.29 dated 25.2.2013, Ext.PW-39/A. PW-40, Dr. Kapil Chopra, deposed that on 24.02.2013, Police brought the accused for medical examination with the alleged history of consumption of some poisonous substance. He issued MLC, copy of which, Ext. PW-38/C. PW-38/A, in his presence.
He gave written information to the police, Ext. PW 40/A, which bears his signatures. The police recorded the statement of the accused, Ext.
This witness, in his cross-examination, stated that he had gone through the statement of the accused (Ext.
PW-38/A).
59. As far as the recovery of the hammer is concerned, the Investigating Officer has stated that it was raining and darkness was gaining, so they deputed a guard to protect the site and brought the dead body to the primary school but on the next date they recovered the hammer, as the site was protected by appointing the guard. This Court finds that no prejudice is caused to the accused if the hammer was recovered on the next date, which was seen approximately 25 meters away from the dead body on 23rd February, 2013. No doubt, with bare eyes the Investigating Officer could not see the blood on the hammer, but it does not mean that the hammer was not the same, ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 51 which was used by the accused for committing the offence. As, even the Forensic Science Laboratory expert found traces of blood on the hammer, which were not suffice for conducting tests, as the same .
were in very small quantity. Thus, it can be inferred that the blood was very less and it was not visible with bare eyes. Another fact, which cannot be ignored, is that it has come in the prosecution evidence that when the police visited the spot of occurrence on 23.02.2013 it was raining and dark, so there is possibility that the blood could have been washed due to rain and on the subsequent morning the hammer was recovered. So, it cannot at all be inferred that the Investigating Officer has not deposed correctly in the Court.
60. The testimony of PW-3, Sanju, brother of the deceased, is very material. He deposed that on the relevant, day he did not go to the school and about 11.00 a.m. went with the deceased to the forest at Bhater for bringing fodder for the cattle. He has further deposed that his mother had gone to the shop for purchasing ration. The accused came in the forest and his sister (the deceased) asked him (Sanju) to return back home, so he went to the shop. When he alongwith his mother, around 3.00 p.m., returned home, the deceased was found not there. On being asked, it was told that the deceased had been called many a times, but she did not respond. He has further deposed that his mother alongwith his grandmother and cousin sister Subedha went to the forest in search of the deceased and they also took dog with them. Thereafter, his sister was seen ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 52 lying dead and having injuries injury on her head. His statement unambiguously shows that the accused and deceased were last seen together by him in the jungle. Therefore, the arguments of the learned .
counsel for the appellant to the effect that PW-3 has not stated with respect to the accused and the deceased being seen together is not required to be appreciated in the manner as argued.
61. In Bodh Raj @ Bodha & others vs. State of J&K 2002 (8) SCC 45, the Hon'ble Supreme Court has observed under vide para 31:
"31. The last-seen theory comes into play where the time gape 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. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."
62. Elaborating the principle of last seen together, the Hon'ble Supreme Court in State of Rajasthan vs. Kanshi Ram, 2006 (12) SCC 254, has held as under vide para 23:
"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 ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 53 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 then he parted company. He must furnish an explanation which appears to the court to be probably and 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 proves 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 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, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., AIR 1960 Nad 2018 : 1960 Cri LJ 620."
63. The legal position pertaining to appreciation of circumstantial evidence of last seen has been succinctly summarized by a Division Bench of the Hon'ble Delhi High Court in a decision rendered in Arvind @ Chottu vs. State ILR (2009) Supp. (Delhi) 704, in the following words:
"(i) Last seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how ::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 54 and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last seen.
(iv) Proximity of time between the deceased being last seen in the company of the accused .
and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last seen theory.
(vii) The relationship of the accused and the deceased, the place where they were seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last seen theory."
64. The circumstances of last seen together cannot by itself form the basis for holding the accused guilty of the offence. In kanhaiya Lal vs. State of Rajasthan (2014) 4 SCC 715, the Hon'ble Supreme Court has held as under vide paras 12 and 15:
::: Downloaded on - 09/01/2019 23:03:34 :::HCHP 55"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in .
our considered opinion, by itself cannot lead to proof of guilt against the appellant.
... ... ... ... ... ...
15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588."
65. The legal position on the subject has been enunciated in a recent judgment of the Hon'ble Supreme Court in Pawan Kumar @ Monu Mittal vs. State of Uttar Pradesh and Ant, 2015 (7) SCC 148, wherein, vide para 36, it was observed as under:-
"36. In case where the direct evidence is scarce, the burden of proving the case of the prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases. Before analyzing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 56 consist of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed (see Bodhraj v. State of J&K). In the case on hand, the evidence .
adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence."
66. Their Lordships of the Hon'ble Supreme Court in Ashok Vs. State of Maharashtra, (2015) 4 SCC 393, have held that last seen together itself is not conclusive proof but alongwith other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, non-explanation of the death of the deceased etc. may lead to presumption of guilt of the accused. Their Lordships, vide para 8, have held as under:
"8. The "last seen together" theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra2, in the following words: (SCC p. 694, para 22) "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him."::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 57
67. Dr. N.K. Sankhyan after seeing the hammer (Ext.
P9) and on perusal of the report of the chemical examiner (Ext.
PW31/G) issued the postmortem report (Ext. PW31/C) and gave his .
final opinion (Ext.PW31/D) that the cause of death was due to antemortem injuries and possibility of attempt of throttling and smothering could not be ruled out. He further opined that the injuries mentioned in the postmortem report (Ext. PW31/C) were possible with hammer (Ext. P9).
68. It is apparent from the above evidence that the deceased suffered homicidal death on account of assault made on her. PW-31, Dr. N.K Sankhyan, clearly stated that antemortem injuries mentioned in the postmortem report were sufficient in the ordinary course of nature to cause the death of the deceased and these injuries could be caused by hammer (Ext. P9). The recovery of weapon of offence, i.e., hammer (Ex. P9) was effected on 24.02.2013, at some distance from the spot, where the deceased was lying dead, hammer (Ext. P9), vide seizure memo Ext. PW7/A, in presence of witnesses namely, Nand Kishore and Sukh Dev. Nand Kishore (PW-7) has duly corroborated the version of the prosecution qua the recovery of the hammer.
Learned counsel for the accused ventilated that weapon of the offence, i.e., hammer (Ext. P9), was not connected with the offence charged, as, as per the prosecution, the hammer, which was sent for forensic examination, was not having blood stains on it. However, ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 58 this contention is to be rejected for the reason that during forensic examination blood traces were detected on the hammer, but the same were not sufficient for forensic analysis. Meaning thereby the blood .
traces were very less in quantity, thus not suffice for forensic examination. So, the non-observation of blood stains on the hammer by the Investigating Officer at the time of recovery of the hammer from the spot of occurrence cannot give any benefit to the accused and on this premise it cannot be held that hammer (Ex. P9) was not recovered from the spot. Further, this is only corroborative in nature and the other material on record leads to the conclusion that the deceased had been killed by the accused. The statements of the material witnesses, coupled with the statement of the doctor that the injuries in question were possible with hammer (Ext. P9), clearly establish that it was the same hammer, Ext. P9, which was used by the accused to inflict injuries on the head of the deceased. Even otherwise also the depositions of all other witnesses only point out that the hammer was recovered from the spot. The analyses of the sample by FSL show that the hammer was the same which was recovered from the spot. In these circumstances, this Court finds that the law, as citied by the learned counsel for the accused rendered in Rambraksh @ Jalim vs. State of Chhattisgarh, 2016(3) Criminal Court Cases 001 Supreme Court is not applicable to the facts of the present case as, as per PW-13, there is evidence on record that the accused and the deceased were together in the jungle.
::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 5969. Statement of PW-11 to the effect that the accused came to the spot by taking lift from him and he was not having any hammer will not make the case of the prosecution weak, as in the .
instant case the accused was not in custody of the police when he made confessional statement. In fact he was in the hospital and was not under the pressure of the police, but he made a confessional statement in presence of the doctor. Indeed, in the case in hand police officer was present near the accused when he made confessional statement, but the same cannot be proved against the accused and his confessional statement cannot be discarded in entirety, as it is clear he was not in police custody at that time. So, it is one of the circumstance which goes to prove that the accused consumed poison on the very next day he committed crime, which is a natural factor. Moreover, on the subsequent morning, colleague of the accused found him sitting sad in the office and thereafter the accused left the office, so this fact is one of the circumstances evidence, which goes against the accused. Similarly, judgment as cited by the learned counsel for the appellant, i.e., titled Salim Versus State of Kerala 2012(2) Criminal Court Cases 435 (Kerala) (DB), is also not applicable to the facts of the present case.
70. The facts of the present case are different than the case cited (supra). In the instant case, the extra judicial confession was made by the accused when he was not in custody and in fact the statement was made to the Doctor. As per the prosecution, Doctor has ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 60 also testified this fact while deposing in the Court that the confession was made by the accused voluntarily on the very next day after consuming the poison when he was admitted in the hospital and he .
confessed his guilt. Though, this confession was recorded and also certified by the police officers and at that time, accused was not in the custody. If it is assumed that this confession is inadmissible in evidence, then also the other circumstances clearly point towards the guilt of the accused, which includes the direct evidence of PWs1, 2 and 5, against the accused. Thus, it makes the confessional statement of the accused one of the strong circumstance against him.
r The statements of PWs 11 and 23 also suggest that accused was present on the spot on the day of occurrence and the wrappers of toffees, which he allegedly purchased, were also recovered from the spot. In these circumstances, this Court finds that even if, confessional statement is not admissible, but it is one of the circumstance alongwith the direct evidence, which leads to the conclusion that it was the accused who perpetrated committed the crime.
71. The Hon'ble Apex Court in K.I. Pavunny vs. Assistant Collector (HQ) Central Excise Collectorate, Cochin (1997) 3 SCC 7212, has held that confession is one of the species of admission and it is ordained legal position that confession can form the sole basis for conviction. Relevant para of the judgment (supra) reads as under:
"20. The question then is whether the retracted confessional statement requires corroboration from any other independent evidence. It is seen ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 61 that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial andproprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may .
consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the Indian Penal Code it is now well-settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under S. 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc. , the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 62 and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of a given set of facts. The high degree of proof and probative value is insisted in capital offences."
.
72. So far as the extra judicial confession is concerned, extra judicial confession is though not admissible ipso facto, but the other supporting circumstances, which have come on record, forms a complete chain of events and it is so complete that the conclusion is nothing else, but that it was the accused, who on 23.02.2013 committed the murder of the deceased in the jungle by hitting the deceased with hammer on her head. As far as motive is concerned, it is not of much significance, but in the instant case motive has also been established on record, as it is clearly come on record that the accused wanted to marry Suvidha by making their parents agree for marriage, which was only possible if the deceased is eliminated.
73. Their Lordships of the Hon'ble Supreme Court in Ajay Singh Vs. State of Maharashtra, (2007) 12 SCC 341, have held that extra-judicial confession must be voluntary and the person to whom confession is made should be unbiased and not inimical to the accused. It is for the Court to judge credibility and capacity of the witness and to decide whether his or her evidence has to be accepted or not. Their Lordships have also explained the terms "confession"
and "statement" as under:
"8. We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 63 the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession. Court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated .
to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the Court should not accept such evidence if actual words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may he many who are possessed of normal memory and do so. It is for the Court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous.
... ... ... ... ... ...
10. The expression 'confession' is not defined in the Evidence Act, 'Confession' is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word 'statement' is "act of stating; that which is ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 64 stated; a formal account, declaration of facts etc." The word 'statement' includes both oral and written statement. Communication to another is not however an essential component to constitute a 'statement'. An accused might have been over-heard uttering to himself or saying to his wife or any other person in .
confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. It such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1 U 68). After referring to some passages written by well known authors on the "Law of Evidence" Subba Rao, J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In paragraph 5 of the judgment, this Court held as follows:-
27. "...Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission pr confession. as the case may be.... If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt."
(Emphasis supplied).
74. The other material which came on record, i.e., last seen together, subsequent recoveries of 'Center Fruit' toffees, broken pieces of SIM, weapon of offence like hammer and the subsequent ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 65 conduct of the accused and above all non-explanation or wrongful denial of circumstances provide an additional link to the prosecution case, which leads this Court to conclude that the accused is guilty of .
the offence charged. Further, the evidence and the circumstances, which are of conclusive nature and tendency, clearly go against the accused. Resultantly, the inescapable conclusion is that it was the accused who killed the deceased. The chain of circumstances is complete and it leaves no ground for concluding that the accused is innocent.
75. Hon'ble Supreme Court in Rishi Pal vs. State of Uttarakhand, (2013) 12 Supreme Court Cases 551 has held that motive has no major role to play in the cases based the evidence of on eye witness giving account of the incident, it assumes importance in cases which rest entirely on circumstantial evidence. Their Lordships have further held that essence of requirements that must be satisfied in cases resting on circumstantial evidence is that not only the circumstances should to be proved and established against the accused beyond reasonable doubt, but also that such circumstances form a complete chain, so as to leave no option for the Court to hold that the accused is guilty of offence(s) for which he is charged. Their Lordships have held as under:
"14. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 66 appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That .
argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.
... ... ... ... ... ... ...
19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-
Abdul Mabood. In doing so the trial Court ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 67 over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and .
does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant rkilled him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."
76. Hon'ble Supreme Court in Dandu Jaggaraju vs. State of Andhra Pradesh, (2011) 14 Supreme Court Cases 674, has held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. Their Lordships have held as under:-
"9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 68 the motive is clearly suspect. In a case relating to circumstantial evidence motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story."
.
77. Hon'ble Supreme Court in Pudha Raja and another vs. State, represented by Inspector of Police, (2012) 11 Supreme Court Cases 196 has held that motive assumes great significance and importance in cases of circumstantial evidence and absence of motive puts Court on its guard and causes and to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not supplant proof. Their Lordships have held as under:-
"16. Furthermore, in such a case, motive assumes great significance and importance, as the absence of motive puts the court on its guard and causes it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjectures do not take the place of proof. The evidence regarding existence of motive which operates in the minds of assailants is very often, not known to any other person. The motive may not even be known, under certain circumstances, to the victim of the crime. It may be known only to the accused and to none other. It is therefore, only the perpetrator of the crime alone, who knows as to what circumstances prompted him to adopt a certain course of action, leading to the commission of the crime."
78. From the above, it is clear that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. No other conclusion than to hold that it is the case where the accused committed murder of the deceased by causing such fatal injuries which were likely to cause her death in all probabilities.
::: Downloaded on - 09/01/2019 23:03:35 :::HCHP 6979. In view of the foregoing discussion and considering the entire material, which has come on record, and also the settled position of law, we find that the learned Trial Court has appreciated .
the facts and law in right and correct perspective. So, the learned Trial Court has rightly concluded that the prosecution has proved its case beyond the shadow of reasonable doubts. Thus, we find that this Court need not interfere with the well reasoned judgment of the learned Trial Court. Accordingly, the appeal, which sans merit, deserve dismissal and is dismissed.
80. The appeal, as also pending application(s), if any, stand(s) disposed of.
(Dharam Chand Chaudhary) Judge (Chander Bhusan Barowalia) Judge 5th January, 2019 (brb/virender) ::: Downloaded on - 09/01/2019 23:03:35 :::HCHP