Himachal Pradesh High Court
The State Of H.P vs Vishal Alias Vickey & Others on 17 August, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 562 of 2010 Reserved on: 28.06.2018 Decided on: 17.08.2018 .
__________________________________________________________ The State of H.P. .....Appellant.
Versus Vishal alias Vickey & others ......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
__________________________________________________________ For the appellant: Mr. Sudhir Bhatnagar and Mr. Vinod Thakur, Additional Advocates General, with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Deputy Advocates General.
For the respondents: Mr. Deepak Kaushal and Mr. Amit Sharma, Advocates.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State, laying challenge to judgment dated 05.08.2010, passed by learned Additional Sessions Judge, Fast Track Court, Kullu, District Kullu, H.P., in Sessions Trial No. 19 of 2009, whereby the accused/respondents (hereinafter referred to as "the accused persons") were acquitted for the commission of the offences punishable under Sections 302, 342 and 120B of Indian Penal Code, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 21860 (hereinafter referred to as "the IPC").
2. Adumbrated in brief, the facts giving rise to the prosecution case are as follows:
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On 09.12.2008 deceased Madan Lal (hereinafter referred to as "the deceased"), who earlier used to work in Aroma Hotel, Manali, and was working in a cloth shop at Ladbhadol, came to his house. On 10.12.2008, at about 09:00 a.m., the deceased told that he is going to Mandi for attending marriage of his friend. On 11.12.2008 the deceased went to the house of his sister, Smt. Nardu Devi, at Ghurdour, and at about 03:00 p.m. he told that he has received a telephonic call, so he rushed to Manali for some urgent work. On 11.12.2008, at about 08:00 p.m., Shri Hem Chand (complainant), father of the deceased, was informed telephonically that the deceased is admitted in injured condition in Mission Hospital. When the complainant reached the hospital, the deceased was lying unconscious and he was not in a position to make any statement. It has further come in the prosecution story that on 11.12.2008 one Sunny Kant found the deceased in injured condition, so he telephoned Pradhan Piarey Lal, who informed the police. Subsequently, ASI Brij Lal shifted the deceased to Mission Hospital. As per the medical officer, the deceased was not in a condition to make statement and he had sustained number of ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 3 injuries. The Medical Officer opined that the injuries could have been sustained by him due to fall from considerable height. The deceased succumbed to his injuries, thus Inspector Sanjay Sharma .
was informed. The statement of the complainant was recorded, whereupon FIR was registered. In postmortem, it was found that the deceased had died due to the head injury. Samples of blood, urine, intestine and kidneys were preserved and handed over to the police.
During the course of investigation, the spot was photographed and videographed. Spot map was prepared and blood stained stones and earth were taken into possession, which were wrapped in a piece of cloth and sealed with seal having impression 'T'. It was unearthed that the deceased was having cell phone having number 9817651203, thus call details of the same were procured. The cell phone belonged to one Namo Chhering, so he was associated in the investigation. During the course of investigation, Suman Bodh disclosed that she used to talk on cell phone with Raman Kumar (accused) and one day, when she called Raman Kumar, the deceased picked her call. Thereafter, the deceased started calling her and expressed his willingness to marry her. Suman Bodh has further disclosed that she narrated this fact to Raman Kumar and he informed her that the deceased had stolen a gold chain and `15,000/-. Raman Kumar told Suman Bodh to call the deceased ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 4 and inquire about his location. The deceased made a phone call to Suman Bodh and expressed his willingness to meet her. Suman Bodh divulged this fact to Raman Kumar, who asked her to call the .
deceased near Simsa Bridge, so she did accordingly. Suman Bodh further divulged to the police that when on the night of 11.12.2008 she inquired from Raman Kumar that had he met the deceased, he told her that he met him and gave him 2-3 blows and the deceased was crushed under the wheels of a vehicle. Thereafter, the accused persons were arrested and vehicle, having registration No. HP58- 2018, was seized alongwith its documents. Accused Arpan made a disclosure statement before the police that the deceased was made to board car having registration No. HP58-2018 and he also showed the place from where the deceased was made to board the car. Another accused Vishal also made a statement and showed the place where the deceased alighted from the vehicle and was thrown from the cliff.
Tyre prints of the vehicle were taken and the vehicle was mechanically examined. As per the mechanical examination report, there was no mechanical defect in the vehicle. The statement of Suman Bodh was recorded under Section 164 Cr.P.C. Forensic analysis report revealed that human blood was found on shirt, pants, sweater, T-shirt and shoes. The result of the blood sample of the deceased and blood stained soil, which was taken from the spot ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 5 of occurrence, was inconclusive qua the blood group. No poison and alcohol was detected in the chemical analysis. Patwari visited the spot and issued tatima and jamabandi of the spot. After completion .
of the investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as twenty four witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty. However, in defence, they did not lead any defence witness.
4. The learned Trial Court, vide impugned judgment dated 05.08.2010, acquitted the accused persons for the offences punishable under Sections 302, 342 and 120 IPC, hence the present appeal preferred by the State.
5. The learned Additional Advocate General has argued that the impugned judgment is based on hypothetical reasoning, surmises and conjectures and the learned Trial Court has failed to appreciate the evidence, which has come on record, to its right perspective. He has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned counsel for the respondents has argued that the judgment of acquittal, as passed by the learned Trial Court, is the result of appreciating the evidence, which has come on record, to its true perspective, thus the same needs no interference and the appeal be ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 6 dismissed.
6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence the accused be .
convicted, as the learned Trial Court has failed to appreciate the evidence correctly and the appeal be allowed.
7. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
8. In the case in hand, the statement of PW-17, Suman Bodh, is very vital. This witness has resiled from her statement given to the police, however, it is settled law that even the statement of a hostile witness can be taken into consideration. As per the version of this witness, in the year 2007 accused Raman telephonically called her and divulged that he is resident of Palampur. They developed friendship and during Dussehra festival of 2007 they met. She has further deposed that in 2008 she gave a missed call on the cell phone of accused Raman. Subsequently, the deceased, who was servant of accused Raman, started harassing her on her cell phone. The deceased used to call her frequently, told that he loves and wanted to marry her. She has further deposed that she snubbed him several times. The cell No. of the deceased was 9817651203 and her cell No. was 9816248801. As per this witness, cell No. of accused Raman was 9805299929. She told to accused ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 7 Raman that she is receiving calls from cell No. 9817651203 and he informed her that this cell No. is of his servant (the deceased).
Accused Raman further told her that the deceased had stolen one .
gold chain and `15,000/- from his house. Accused Raman asked her to inquire about the location of the deceased, however, the deceased did not reveal his location to her. On 11.12.2008 she received a telephonic call from the deceased and asked him to meet, but the deceased refused to meet her. As per this witness, accused Raman asked her to help them to trace the location of the deceased, as he wanted to recover the gold chain and the money. She has further deposed that on 11.12.2008, at about 10:00 p.m., she made a call to accused Raman and asked him whether the deceased met him or not, but he informed her that he had not met the deceased.
On 12.12.2008 police came to her house and they took her uncle for interrogation. She was called by the police on 13.12.2008 and her statement was got recorded. On 22.12.2008 her statement, Ex. PW-
17/A, was recorded in Manali Court, which bears her signatures.
She has deposed that she cannot say whether her statement was recorded according to her version or not. This witness, was declared hostile and subjected to exhaustive cross-examination. This witness, in her cross-examination, has deposed that on 11.12.2008, at about 08:45 p.m., she made a telephonic call to accused Raman and ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 8 inquired from him whether he met the deceased or not.
9. In murder cases, the medical evidence plays a vital role to ascertain the guilt or innocence of the accused. The present case .
is based on circumstantial evidence and the chain of the events indeed is to be tallied with medical evidence and other facts. PW-1, Philip Alexander, Medical Officer, Lady Willingdon Hospital, Manali, has deposed that since 2004 he was working as Medical Superintendent in Lady Willingdon Hospital. On 11.12.2008, at about 08:00 a.m., he conducted the medical examination of the deceased and observed following injuries:
"1. Bilateral periorbital hematoma,
2. Leforte III fracture; fracture ACF,
3. Fracture of nasal bone,
4. Closed head injury,
5. Left Hemopneumo thorax,
6. Left tension pneumothorax,
7. Abrasions right chest,
8. Abrasions left chest,
9. Abrasions right gluteal region and
10. Laceration 1 x 1 cm right forehead."
This witness opined that injuries No. 1 to 6 were life threatening and rest of the injuries were simple in nature. This witness issued medico legal certificate, Ex. PW-1/A. As per this witness, the injuries observed by him could be possible if a person falls from a substantial height. This witness, in his cross-examination, has stated that he did not notice any tyre marks on the person of the ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 9 deceased.
10. PW-2, Dr. Rakesh Negi, Medical Officer, CHC, Manali, deposed that on 12.12.2008, at about 02:00 p.m., he conducted .
postmortem examination of the deceased. As per this witness, he observed as under:
"1. lacerated wound over right side of temporal region, measuring 1x 1 cm with irregular margin, with fractured skull bone underneath,
2. Bluish discolouration around the eyes or bit bilaterally with fractured nasal bone,
3. Sub dural heamotoma large 3-4 cms in diameter with congested meninges,
4. Abraison over bilatel chest with incession for drainage on left side chest intercostal place,
5. Plaurae was congested bilaterally and left r side clotted blood was seen in the plural sac,
6. A stitched incisson mark over abdomen running from umbilicus to public ramus,
7. Rigour mortis seen all over the major joints, and
8. Bluish discolouration of hypostasis started appearing over back."
As per the opinion of this witness, the deceased died due to head injury, viz., sub dural heamotoma associated with hydro haemopneumo thorax. This witness sent the samples of blood, urine, intestine and kidneys to FSL, Junga. He did not notice any traces of poison and alcohol. He opined the duration of time between injury and death to be 24 hours and between death and postmortem within 24 hours. This witness issued postmortem report, Ex. PW-2/A, and opined that the injuries observed by him ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 10 could be possible in a fall from substantial height.
11. PW-3, Him Chand (father of the deceased) deposed that deceased was 24 years of age and working in Aroma Hotel, Manali.
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Subsequently, the deceased started working in a grocery shop at Ladbadhol and that shop was also owned by owner of Aroma Hotel.
As per this witness, one year back, on 9th the deceased came home and on 10th he went to the house of his sister at Ghurdaur. He has further deposed that the deceased told his sister that he is going to Manali, as he received a telephonic call. At about 8-8:30 p.m. his younger brother, Khimi Ram, received a telephonic call from one Subhash Chand, son-in-law of this witness, that the deceased has been admitted in Mission Hospital, Manali. He went to the hospital and found that the deceased had suffered a head injury. He was informed by the police that the deceased was given beatings at Bran road, so they went to Bran road and his statement, Ex. PW-3/A, was recorded by the police. As per the testimony of this witness, there was blood on the ground. Police clicked photographs and a vehicle was taken in possession vide memo, Ex. PW-3/A.
12. PW-4, Karam Chand, deposed that the deceased was admitted in Mission Hospital, Manali, and when he reached the hospital, the deceased had died. As per the testimony of this witness, police prepared inquest report, Ex.PW-4/A, which bears his ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 11 signatures.
13. PW-5, Subhash Chand (brother of the deceased), deposed that on 11.12.2008 telephonically it was informed in his .
home that the deceased is admitted in Mission Hospital. When he was not in the home, the deceased had come there and thereafter he went in connection with some urgent work. He has further deposed that telephonic call, qua the admission of the deceased in Mission Hospital, was received on his cell phone and he narrated the same to his father-in-law and subsequently they went to Mission Hospital.
The deceased was unconscious and he was not able to speak. The deceased died at 2 to 2:30 p.m.. He has further deposed that police clicked photographs in the hospital and later on they came on the spot where the dead body of the deceased was found. The spot map was prepared and the spot was photographed as well as videographed. His statement was also recorded by the police. This witness, in his cross-examination, has admitted that there is cliff where the dead body of the deceased was stated to be found.
14. PW-14, Panna Lal, the then Pradhan of Gram Panchayat Bran, deposed that on 11.12.2008 he received a telephonic information that a person is lying at place known as Bandar Pani, so he went to the spot and found a bleeding person lying unconscious in an injured condition. He informed the police and the police took ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 12 that person towards Manali and on the subsequent day police came to him and informed him that that person had died. He further deposed that he alongwith Ward Panch went to the spot. The police .
took samples of blood stained earth, stones etc. and seizure memo, Ex. PW-6/A, was prepared, which bears his signatures. He further deposed that the spot was videographed and photographs were also clicked. As per the version of this witness, the recovered articles were put in a glass bottle, which was sealed with seal having impression 'T'. Police recorded his statement.
15. PW-7, Ram Swarup, who was working as Waiter in Hotel Aroma, Manali, deposed that the hotel was taken on lease by Subhash Chand, whose son is Raman Kumar (one of the accused).
He has deposed that on 11.12.2008, in his presence, no person came to Raman Kumar. This witness was declared hostile, as he had resiled from his previous statement given to the police and subjected to cross-examination. He deposed that on 11.12.2008, at about 10:30 p.m., Vicky and Arpan came to the hotel in a vehicle having registration No. HP58-2018. He denied that they sat in Room No. 116, watched TV and left after considerable time. He feigned his ignorance qua the friends of accused Raman Kumar.
16. PW-8, Chuhru Ram, the then Panch of Gram Panchayat Achhindi, deposed that he and Rakesh were associated by the police ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 13 in the investigation. This witness identified the accused persons in the Court and deposed that they were arrested by the police. He further deposed that accused Arpan made a statement, Ex. PW-8/A, .
that he could show the place at Ranghri from where they made the deceased to sit in vehicle having registration No. HP58-2018 and also the place from where the deceased was thrown at Bran road.
Statement, Ex. PW-8/A, bears his and the signatures of Rakesh Thakur and the accused. As per the version of this witness, accused Vishal also made a statement, Ex. PW-8/B, that he could show the place at Ranghri from where the deceased was taken in vehicle, having registration No. HP58-2018, and the place from he was thrown from Bran road. He, Rakesh Thakur and accused Vishal signed statement, Ex. PW-8/B. He has further deposed that accused Arpan showed the place from where the deceased was taken in vehicle, having registration No. HP58-2018, and to this effect memo, Ex. PW-8/C, was prepared, which was signed by him, Rakesh Thakur and the accused. Spot map was prepared and the police called accused Vishal, who showed the place wherefrom the deceased was taken away. Subsequently, they went to Bran Road and accused Arpan showed the place from where the deceased alighted from the vehicle and thrown down from a cliff. As per the testimony of this witness, accused Vishal also showed the place ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 14 where the deceased alighted from the vehicle and thrown down. To this effect memo, Ex. PW-8/D, was prepared by the police, which was signed by him, Rakesh Thakur and the accused. He has further .
deposed that the police prepared the spot map and called them on 23.12.2008, so they went to Police Station, Manali. In his presence the tyre marks of the vehicle, having registration No. HP58-2018, were procured. This witness, in his cross-examination, has deposed that the deceased was his nephew.
17. PW-9, Budhi Singh, Mechanic, Himachal Pradesh Tourism Development Corporation, mechanically inspected the vehicle, having registration No. HP58-2018 on 31.12.2008. He issued report, Ex. PW-9/A and traced engine No. and chassis No., which is Ex. Pw-9/B.
18. PW-10, Jagar Nath, deposed that on the direction of SHO, Police Station, Manali, he went at Bran link road and prepared site plan, Ex. PW-10/A. He handed over to the police a copy of jamabandi, Ex. PW-10/B. As per this witness, there is cliff down the road.
19. PW-11, HC Mohinder Singh, deposed that ASI Brij Lal handed over to him three sealed parcels and out of the three two were sealed with seal having impression 'CH' and one was sealed with seal having impression 'T'. He was also entrusted with an ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 15 envelope, which was sealed with seal having impression 'CH' and was addressed to FSL, Junga. He made entry in register No. 19 and deposited the case property in the malkhana. He has further .
deposed that on 15.12.2008, vide RC No. 200 of 2008, he handed over the case property alongwith the documents to Constable Amar Nath, who deposited the same in FSL, Junga and gave him receipt thereof. As per the version of this witness, the case property remained intact under his custody. On 07.01.2009, vide RC No. 230 of 2009, the tyre marks of the vehicle having registration No. HP58- 2018, were sent to FSL, Gutkar, Mandi, through Constable Megh Singh, who handed over to him receipt thereof.
20. PW-12, HHC Ganga Ram, proved daily station diaries, Ex. PW-12/A and Ex.PW-12/B. He has deposed that Ex.PW-12/A and Ex. PW-12/B were entered by him in the computer and print outs of the same were also taken by him. This witness, in his cross-
examination, has deposed that as per the entries made in the police station, the deceased had died in presence of ASI Brij Lal.
21. PW-13, Constable Om Prakash, deposed that on 15.12.2008, vide RC No. 200 of 2008, MHC Mohinder Singh handed over him the case property, which consisted three parcels, out of which, two were sealed with seal having impression 'CH' and one was sealed with seal having impression 'T' and a forwarding letter.
::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 16On 16.12.2008 he deposited the case property in FSL, Junga, and receipt qua the same was handed over by him to MHC. As per this witness, the case property remained intact under his custody.
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22. PW-14, Constable Megh Singh, deposed that on 07.01.2009, vide RC No. 230 of 2009, MHC Narain Chand handed over to him an envelope, which was sealed with six seals having impression 'M'. He has further deposed that he deposited the said envelope in FSL, Junga, on the same day and receipt thereof was handed over to MHC. As per this witness, the case property remained intact under his custody.
23. PW-15, ASI Daya Ram, deposed that he partly investigated the case and recorded the statements of Megh Singh, Mahinder Singh and Om Prakash.
24. PW-16, ASI Lal Chand, deposed that ASI Daya Ram gave him the case file and he prepared the challan. This witness, in his cross-examination, has deposed that there is no footnote appended on the statement of Suman Bodh, recorded under Section 164 Cr.P.C.
25. PW-18, Inspector Om Prakash, deposed that on 12.12.2008, at about 02:15 p.m., statement, Ex. PW-3/A, was received in the police station, through Constable Megh Singh. On the basis of statement, Ex. PW-3/A, he registered FIR, Ex. PW-18/A, ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 17 and the case file was sent to the spot, through Constable Megh Singh.
26. PW-19, Sunny Kant, deposed that on 11.12.2008, at .
about 05:35 p.m. he was going to his home. He found a man lying at Bander-pani, whose head was bleeding. He accordingly telephonically informed Pradhan of concerned panchayat, who came on the spot after 15 minutes and telephonically informed the police.
As per the version of this witness, the said person was lying amidst the road. This witness, in his cross-examination, has deposed that near the place where the injured person was found there is steep cliff and road is above the cliff.
27. PW-20, Inspector Sanjay Sharma, deposed that on 12.12.2008, at about 01:55 p.m., ASI Brij Lal telephonically informed him that a person, who had been admitted in Mission Hospital, had died, so he went to the hospital alongwith HC Jhave Ram and Constable Megh Singh. As per the version of this witness, the deceased was identified as Madan Lal resident of Archindi and he made inquires from his relatives. ASI Brij Lal completed the formalities under Section 174 Cr.P.C.. He went to the spot where the father and relatives of the deceased had gathered. He has further deposed that Panna Lal, Pradhan, Uttam, Ward Panch, and one Sunny Kant were also there on the spot. PW-3, Hem Chand (father ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 18 of the deceased) got recorded his statement, Ex. PW-3/A, which was sent, through Constable Megh Singh, to police station, whereupon FIR was registered. Photographs, Ex. PW-20/A1 to Ex.PW-20/A16, .
were clicked and video CD, Ex.PW-20/B, was prepared. He, after inspecting the spot, prepared the site plan, Ex. PW-20/C. Blood stained stone and earth were taken into possession vide memo Ex.PW-6/A, and the same were wrapped in a cloth, which was sealed with seal having impression 'T'. Seal impression was taken on a separate piece of cloth, which is Ex. PW-20/D. He recorded the statements of Hem Chand, Panna Lal, Sunny Kant, Uttam Chand and Karam Chand. Postmortem of the deceased was got conducted and he recorded the statement of Nardu Devi. He has deposed that the case property was entrusted to MHC. He procured the call details of the deceased qua his cell No. 9817651203, which is Ex.
PW-20/E. The call details revealed that the deceased had talked to a person having cell No. 9816248801 and call details to this effect are Ex. PW-20/F. As per this witness, cell No. 9816248801 belongs to Namo Chhering, resident of Bajaura. He made inquires from Namo Chhering and recorded the statement of his daughter Suman Bodh (PW-17) under Section 161 Cr.P.C. He sent a police party to Delhi in search of the accused persons and ASI Daya Ram returned with accused Raman, Vishal alias Vicky and vehicle, having registration ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 19 No. HP58-2018, was also recovered, which was taken into possession alongwith its documents, vide seizure memo, Ex. PW-
3/B. He recorded the statement of Ram Swarup, which is Ex. PW-
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20/G. Accused Arpan was also called to the police station and on 18.12.2008 all the accused persons were arrested. This witness has categorically deposed that accused Arpan made a statement, Ex. PW-
8/A, under Section 27 of the Indian Evidence Act, in presence of Chuhru Ram and Rakesh Thakur, that he could show the place wherefrom the deceased was made to sit in the vehicle, having registration No. HP58-2018. Subsequently, accused Arpan showed the place wherefrom the deceased was made to sit in the vehicle.
Memo, Ex. PW-8/C, and site plan, Ex. PW-20/H, were prepared by the police. As per this witness, accused Vishal was interrogated in presence of Chuhru Ram and Rakesh Thakur and he made statement, Ex. PW-8/B. Accused Vishal showed the place where the deceased alighted from the vehicle and thrown from a cliff. Police prepared memo, Ex. PW-8/D, and site plan, Ex. PW-20/J. This witness moved application, Ex. PW-20/K, before the learned Judicial Magistrate 1st Class, Manali, and statement, Ex. PW-17/A, of Suman Bodh (PW-17) under Section 164 Cr.P.C. was recorded. He also took the tyre prints, Ex. PW-8/E to Ex. PW-8/H, of the vehicle, having registration No. HP58-2018, and the vehicle was mechanically ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 20 examined on 31.12.2008. Mechanical examination report is Ex. PW-
9/A. Patwari issued tatima, Ex. PW-10/A, and jamabandi, Ex. PW-
10/B. Further investigation was handed over to ASI Daya Ram.
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After the receipt of forensic report, Ex. PW-20/L, he prepared supplementary challan and another supplementary challan was prepared by him on 30.05.2009 wherein remaining witnesses were cited. He has further deposed that after receipt of another forensic report, Ex. PW-20/M, on 01.05.2009 he prepared another supplementary challan, which he presented in the Court. This witness, in his cross-examination, has deposed that as the tyre marks were visible on the spot, so he took tyre marks. He wanted to tally the tyre marks with the marks on the spot. He has deposed that there were no blood stains on the tyres. He recorded the statement of PW-17, Suman Bodh, under Section 161 Cr.P.C. as she was having friendship with accused Raman Kumar.
28. PW-21, ASI Brij Lal, deposed that on 11.12.2008, at about 06:35 p.m., Pradhan, Gram Panchayat, Bran, informed that a stranger is lying on the road near Bran. When he went on the spot, local persons had gathered there and a person was lying unconscious. That person was bleeding from his forehead and he had sustained multiple injuries. The injured was taken to Mission Hospital and application, Ex. PW-21/A, was moved for ascertaining ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 21 whether the deceased is fit to make the statement or not. He made an endorsement on the application that the deceased is not fit to make the statement. At 01:55 a.m., during the night, the deceased .
had died and inquest report, Ex. PW-4/A, was prepared. He moved application, Ex. PW-21/B, for conducting the post mortem of the deceased and telephonically informed SHO, Police Station, Manali.
He has further deposed that a chit was found from the dead body, so he telephoned on the basis of that chit. As per the version of this witness, the deceased was identified by the persons, who came in response to his telephonic call.
29. PW-22, Shri Ranjit Singh, the then learned Judicial Magistrate, 1st Class, Manali, deposed that application, Ex. PW-
10/A, was moved before him, whereupon he recorded the statement of Suman Bodh (PW-17), which is Ex. PW-17/A. He has further deposed that Suman Bodh was identified by SHO Inspector Sanjay Sharma and she was ready and willing to make the statement. The statement was read over and explained to Suman Bodh. The witness admitted the statement to be correct and had put her signatures thereon. He had completed all the formalities, as required under the law. As per this witness, Suman Bodh was not under the influence of any person while giving the statement.
30. PW-23, M.L. Sharma, Additional Nodal Officer, Reliance, ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 22 Shimla, brought the call records qua cell No. 98176-51203. He has issued call details record, which are Ex. PW-23/A, Ex. PW-23/B and Ex. PW-23/C. He has also brought the print out of the call details, .
which is Ex. PW-23/D.
31. PW-24, Devinder Verma, Nodal Officer, Bharti Airtel, Shimla, deposed that he had sent e-mail, Ex. PW-24/A, and the call details pertaining to cell No. 98162-48801, print out whereof is Ex.PW-24/B.
32. After going through the record, it is clear that the case of the prosecution rests upon circumstantial evidence and as far as the law qua circumstantial evidence is concerned, the same in nitty-
gritty is that each and every circumstance is required to be proved by the prosecution and the circumstances, as a whole, have to make out a chain in a manner that the only conclusion is that the accused persons have committed the offences, as alleged by the prosecution.
The law on the point of circumstantial evidence is considered and settled by the Hon'ble Courts in the following judgments:
1. State of H.P. vs. Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017;
2. Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622;
3. Padala Veera Reddy vs. State of ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 23 Andhra Pradesh and others, AIR 1990 Supreme Court 79;
4. State of Uttar Pradesh vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, & .
5. Rajdev aliasRaju & another vs. Stae of H.P., Criminal Appeal No. 288 of 2015.
33. In State of H.P. vs. Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017, this Court has held as under:
"13. It is more than settled that in case of circumstantial evidence, the circumstances from which interference as to the guilt of the accused is drawn, have to be proved beyond reasonable r doubt and there be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un-erringly pointing out towards the guilt of the accused.
iii) The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime was committed by the accused.
14. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 24 basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
.
15. In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173)."
34. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 25 not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.
... ... ... ... ... ...
.
150. It is well settled that the
prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this:
where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or r lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
... ... ... ... ... ...
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 26
159. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a .
case. This aspect of the matter was examined in Shankarlal's case (AIR 1981 SC 765) (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra).
r Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court.
Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-
General."
35. The Hon'ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme Court 79, has held as under:
::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 27"12. There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, PW-8 and brother PW-9 claiming .
exclusive possession of the disputed land, that the deceased was found dead on the morning of 7.9.85 and that there were certain visible injuries such as abrasions, nail marks and contusions on the part of the nose, upper lip, chin and neck etc. as noted by the Medical Officers (PWs 5 and 6) in the post- mortem report Ex. P. 9. The appellate Court on the strength of the opinion given by the Medical Officers (PWs 5 and
6) has agreed with the view of the Trial Court that the death of the deceased was of homicidal one and not suicidal and held "therefore suicidal is ruled out." We also very carefully went through the evidence of the Medical r Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.
... ... ... ... ... ...
15. While considering the above circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage house of PW-1 throughout the night is nothing but a false explanation and that the culprits who ever they might have been should have administered the poison to the victim and thereby caused her death and that there is very strong suspicion against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 28
"There is no evidence whatsoever either from the neighbours or from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these circumstances, it is not possible to hold that the .
prosecution has established the guilt on the part of A. 1 to A. 3.
Thus, there is no conclusive evidence that the accused committed the offence of murder. It is an unfortunate case where cold-blooded murder has been committed and it is difficult to believe that no inmate of the house had any hand in the offence of murder. But that will be only a suspicion which cannot take the place of proof."
16. We, in evaluating the circumstantial evidence available on record on different aspects of the case, r shall at the foremost watchfully examine whether the accused 1 to 3 had developed bad-blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill-treated either by her husband or in- laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill-treated the deceased, which observation we have extracted above. Hence, we hold that there is no sufficient material to warrant a conclusion that the accused had any ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 29 motive to snatch away the life threat of the deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the scene house and that she has been done .
away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life. As observed by the appellate Court, the explanation offered by accused 1 to 3 that they remained in the house of PW 1 throughout the night is too big a pill to be swallowed. But at the same time, in our view, this unacceptable explanation would not lead to any irrestible inference that the accused alone should have committed this murder and have come forward with this false explanation. We have no hesitation in coming to the conclusion that it is a case of murder but not a suicide as we have pointed out supra.
The placing of the tin container with the inscription 'Democran, by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body. Even if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Ex. P. 6 to P. 8 alleged to have been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No. 1 in this written statement is that by about the time of the arrival of the police, one Sathi Prasad Reddy ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 30 handed over these letters to him saying that he (Reddy) found them near the place where the dead body was laid and that he (A-1) in turn handed over them to the police. PWs 8 and 9 have deposed that these letters are not under the hand writing of the deceased. But the .
prosecution has not taken any effort to send the letters to any hand-writing export for comparison with the admitted writings of the deceased with the writings found in Ex. P. 6 to P. 8. Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.
17. No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that all the accused or any of them are the real culprits. The circumstances r indicated by the learned Counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not.
... ... ... ... ... ...
22. We are of the firm view that the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them committed the murder of the deceased, Vijaya punishable under Section 302 read with Section 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A I.P.C. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference."
36. The Hon'ble Supreme Court in State of Uttar Pradesh ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 31 vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, has held as under:
"12. So far as the last seen aspect is concerned it is necessary to take note of .
two decisions of this Court. In State of U.P. v. Satish, it was noted as follows:
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap r 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 and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
13. In Ramreddy Rajesh Khanna Reddy v. State of A.P., it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 32
(See also Bodhraj v. State of J&K, (2002) 8 SCC 45)
14. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 12 SCC 438. Factual position in the present .
case is almost similar, so far as time gap is concerned.
15. Out of the circumstances highlighted above really none is of any significance. Learned Counsel for the appellant-State highlighted that the extra judicial confession itself was sufficient to record the conviction. On a reading of the evidence of CW-1 it is noticed that accused Ram Balak did not a say a word about his own involvement. On the contrary he said that he did not do anything and made some statements about the alleged act of co-accused. Additionally, in his examination under Section 313 of r Code, no question was put to him regarding his so called extra judicial confession. To add to the vulnerability, his statement is to the effect that after about 11 days of the incidence the extra judicial confession was made. Strangely he stated that he told the police after three days of the incidence about the extra judicial confession. It is inconceivable that a person would tell the police after three days of the incidence about the purported extra judicial confession which according to the witness himself was made after eleven days. Learned Counsel for the State submitted that there may be some confusion. But it is seen that not at one place, but at different places this has been repeated by the witness.
16. Learned Counsel for the appellant also refers to a judgment of this Court in Abdul Razak Murtaza Dafadar v. State of Maharashtra, more particularly para 11 that the Dog Squad had proved the guilt of the accused persons. In this context it is relevant to take note of what has been stated in para 11 which reads as follows: (SCC pp. 239-40) ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 33 "11. It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was not admissible in order to prove .
the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted.
But in the United States there are conflicting decisions:
'There have been considerable uncertainty in the minds of the Courts as to the reliability of dogs in identifying criminals and much conflict of opinion on the question of the admissibility of their actions in evidence. A survey of the cases however, reveals that most Courts in which the question of the admissibility r of evidence of-trailing by blood-
hounds has been presented take the position that upon a proper foundation being laid by proof that the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the person trailed was the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the Crime.' (para 378, Am. Juris. 2nd edn. Vol. 29, p. 429.) There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-
examination, the dog s human companion must go into the box and report the dog s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 34 be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. In R. v. Montgomery,1866 NI .
160 a police constable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards the police got them on a nearby road.
About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked continuously until he stopped in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the conviction. In these circumstances the Court of Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog s reactions was properly admitted. The Court did not regard its evidence as a species of hearsay but instead the dog was described as "a tracking instrument and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dog s evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 35 deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight.
.
It is submitted by learned Counsel for the appellant that in the said case this Court had upheld the conviction.
Though in the said case the conviction was upheld, but that was done after excluding the evidence of Dog Squad.
This Court found that the rest of the prosecution evidence proved the charges for which the appellants therein had been convicted."
37. This Court in Rajdev alias Raju & another vs. State of H.P., Criminal Appeal No. 288 of 2015, decided on 30.05.2016, has held as under:
51. It is settled position of law that suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is the guilt of the accused. In our opinion, it is not safe to record a finding of guilt of the accused Manoj Sahani and the accused Manoj Sahani is entitled to get the benefit of doubt."
38. After touching the different aspects relating to the law laid down by Hon'ble Courts on the subject of circumstantial evidence, the testimonies of the prosecution witnesses need discussion and analysis.
39. In the case in hand, postmortem report, Ex. PW-2/A, which stands proved on record, which shows the following injuries ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 36 on the person of the deceased:
"1. lacerated wound over right side of temporal region, measuring 1x 1 cm with irregular margin, with fractured skull bone underneath, .
2. Bluish discolouration around the eyes or bit bilaterally with fractured nasal bone,
3. Sub dural heamotoma large 3-4 cms in diameter with congested meninges,
4. Abraison over bilatel chest with incession for drainage on left side chest intercostal place,
5. Plaurae was congested bilaterally and left side clotted blood was seen in the plural sac,
6. A stitched incisson mark over abdomen running from umbilicus to public ramus,
7. Rigour mortis seen all over the major joints, and
8. Bluish discolouration of hypostasis r started appearing over back."
PW-2, Dr. Rakesh Negi, Medical Officer, CHC, Manali, conducted the postmortem on the dead body of the deceased and in his opinion the deceased died due to head injury, viz., sub dural heamotoma associated with hydro haemopneumo thorax. He did not notice any traces of poison and alcohol and duration between injury and death was opined to be 24 hours and between death and postmortem within 24 hours. He has categorically deposed that the injuries sustained by the deceased are possible in a fall from substantial height. Now, his statement provides a link in the chain of circumstances, as, as per the prosecution case the accused persons threw the deceased from a cliff and due to fall he sustained ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 37 injuries. Further, spot map, Ex. PW-10/A, demonstrates that where the deceased was found in injured condition, there is cliff upwards the hill and that cliff is just adjacent to the road. In this context, the .
statement of PW-19, Sunny Kant, is very important, as the deceased, in injured condition, was firstly seen by this witness. He has categorically deposed that he found a man lying at Bander-pani and he was bleeding from his head. The man was lying in middle of the road. This witness, in his cross-examination, has specifically deposed that some leaves were lying on the person and those leaves had come from the cliff where there were bushes. In a nut shell, these circumstances clearly prove that the deceased sustained injuries in a fall from the cliff as depicted in spot map, Ex.PW-10/A. Now, we have to see whether the accused persons threw the deceased from the cliff or not.
40. Another important circumstance stands established through the testimony of PW-8, Chuhru Ram, the then Panch of Gram Panchayat Achhindi. This witness identified the accused in the Court and has specifically deposed that the accused persons were arrested by the police. He has further categorically deposed that accused Arpan made statement, Ex. PW-8/A, that he could show the place at Ranghri from where they made to sit the deceased in vehicle, having registration No. HP58-2018, and also the place ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 38 from where the deceased was thrown at Bran road. Statement, Ex.
PW-8/A, bears his and the signatures of Rakesh Thakur and the accused. As per the version of this witness, accused Vishal also .
made a statement, Ex. PW-8/B, that he could show the place at Ranghri from where the deceased was taken in vehicle, having registration No. HP58-2018, and the place from he was thrown from Bran road. PW-8, Rakesh Thakur and accused Vishal signed statement, Ex. PW-8/B. He has further deposed that accused Arpan showed the place from where the deceased was taken in the vehicle, having registration No. HP58-2018, and to this effect memo, Ex. PW-
8/C, was prepared, which was signed by him, Rakesh Thakur and the accused. Spot map was prepared and the police called accused Vishal, who showed the place wherefrom the deceased was taken away. Subsequently, they went to Bran Road and accused Arpan showed the place from where the deceased made to alight from the vehicle and thrown down from a cliff. As per the testimony of this witness, accused Vishal also showed the place where the deceased alighted from the vehicle and thrown down. To this effect memo, Ex.
PW-8/D, was prepared by the police, which was signed by him, Rakesh Thakur and the accused. He has further deposed that the police prepared the spot map and called them on 23.12.2008, so they went to Police Station, Manali. In his presence the tyre marks ::: Downloaded on - 18/08/2018 22:58:41 :::HCHP 39 of the vehicle, having registration No. HP58-2018, were procured.
After examining the deposition of PW-8, it can be held that disclosure statements made by the accused have teeth of veracity, .
though we are not loosing sight of the fact that disclosure statements are always self-exculpatory. However, in the case in hand, the disclosure statements made by the accused persons, if read in juxtaposition with other material, proves that the accused persons threw the deceased from the cliff.
41. The medical evidence also speaks about injuries, other than fall injuries. Now, as per the deposition of PW-17, Suman Bodh, who was admittedly declared hostile, she told to accused Raman that she is receiving calls from Cell No. 98176-51203 and, in turn, accused Raman informed her that this cell No. belongs to his servant (the deceased). She has further deposed that accused Raman also told her that the deceased had stolen one gold chain and `15,000/- from his house and asked her to inquire about the location of the deceased. She has categorically deposed that on 11.12.2008 (the alleged day of occurrence) she received a telephonic call from the deceased and she asked him to meet, but the deceased refused to meet her. As per the version of this witness, accused Raman sought her help to trace the location of the deceased, as he wanted to recover the gold chain and the money. This witness, was ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 40 declared hostile, however, she in her statement recorded under Section 164 Cr.P.C. deposed that the deceased, who was servant of accused Raman, used to tell her that he loves her. The deceased .
used to frequently call her and she started feeling irked. So, she divulged this to accused Raman, who told her that the deceased has stolen `15,000/- and a gold chain from his house. Accused Raman sought her help to trace the deceased, thus she made a telephonic call to the deceased and asked him to meet her. Accused Raman told her to ask the deceased to come at Simsa Bridge, so the deceased came there. This witness, in her statement recorded under Section 164 Cr.P.C. further deposed that the deceased on 11.12.2008, at about 05.00 p.m. asked her whether she is coming or not. On the same day, i.e., 11.12.2008, at about 08:45 p.m., she made a telephonic call to accused Raman, who divulged to her that he gave blows to the deceased and thereafter the deceased was crushed under the tyre. No doubt, statement made under Section 164 Cr.P.C. cannot be read as substantive piece of evidence, however, same can be used to corroborate and contradict the version of its maker. Thus, the statement of Suman Bodh recorded under Section 164 Cr.P.C. certainly corroborates with circumstances, as portrayed by the prosecution. Now, at the cost of repetition, some excerpts of her deposition are worth mentioning here too. She has ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 41 deposed that in the year 2007 accused Raman telephonically called her and divulged that he is resident of Palampur. They developed friendship and met during Kullu Dussehra festival of 2007. She has .
further deposed that in 2008 she gave a missed call on the cell phone of accused Raman. Subsequently, the deceased, who was servant of accused Madan, started harassing her on her cell phone.
The deceased used to call her frequently, told that he loves and wanted to marry her. She has further deposed that she snubbed him several times. The cell No. of the deceased was 9817651203 and her cell No. was 9816248801. As per this witness, cell No. of accused Raman was 9805299929. She told accused Raman that she is receiving calls from cell No. 9817651203 and he informed her that this cell No. is of his servant (the deceased). Accused Raman further told her that the deceased had stolen one gold chain and `15,000/-
from his house. Accused Raman asked her to inquire about the location of the deceased, however, the deceased did not reveal his location to her. On 11.12.2008 she received a telephonic call from the deceased and she asked her to meet, but the deceased refused to meet her. As per this witness, accused Raman asked her to help them to trace the location of the deceased, as he wanted to recover the gold chain and the money. She has further deposed that on 11.12.2008, at about 10:00 p.m., she made a call to accused Raman ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 42 and asked him whether the deceased met him or not, but he informed her that he had not met the deceased. Even the record qua the call details clearly establishes the fact that accused Raman and .
PW-17, Suman Bodh, remained in constant touch with each other on the day of occurrence. Call details further proves that the deceased used to call PW-17. Thus, another link in the chain of circumstances is complete.
42. A combined examination of the testimony of PW-17, Suman Bodh, and her statement recorded under Section 164 Cr.P.C.
clearly establish that accused Raman had motive to cause injuries to the deceased and that is why the deceased was taken by the accused persons to the spot of occurrence. Accused Raman himself told to PW-17 that he thrashed the deceased and the deceased was crushed under the trye. Now, in the wake of disclosure statements made by accused Arpan and Vishal that they made the deceased to sit in vehicle, bearing registration No. HP58-2018, and took him to Bran road. Accused Arpan showed the place from where the deceased was thrown down. Thus, all the circumstances make a complete chain of events, which clearly points out towards the guilt of the accused persons.
43. One of the facet of the prosecution story is that the deceased was crushed under the tyres of the car, however, this ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 43 seems to be hypothetical story portrayed by accused just to mislead the investigation, as the medical evidence neither demonstrates that the deceased sustained crush injuries nor any tyre marks were .
found on his body. In nitty-gritty, after reappraisal of the evidence, it is clear that the accused persons called the deceased, through PW-
17, Suman Bodh, to Ranghri and thereafter they made him to board the vehicle and took him to Bran road. The accused persons gave beatings to the deceased and then they threw him from a cliff and as a result the deceased lost his life.
44. In the facts and circumstances of the case, we have to see whether all the accused persons had common intention to commit the crime or not. In sequel to the disclosure statements made by accused Arpan and Vishal, no recovery was effected and they had only identified the places from where the deceased was taken in a vehicle and thrown down the hill. Thus, their statements cannot be made sole basis to convict the accused persons, but PW-8, Chuhru Ram, clearly deposed that the accused persons have identified the places in his presence and in presence of other witness Rakesh. Now, if the testimony of PW-19, Sunny Kant, is seen, it tallies with the deposition of PW-8, as he has deposed that the deceased was found in injured condition at Bander-pani. No doubt, PW-17, Suman Bodh, who is key witness in the case in hand, turned ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 44 hostile, yet her testimony is sufficient to prove that there was motive for accused Raman to cause injuries to the deceased and to kill him, as the deceased wanted to marry Suman Bodh and he used to .
express his love on telephonic calls, however, she was having an affair with accused Raman, who was owner of the shop where the deceased used to work. Another motive behind the crime, which stands proved, is that accused Raman himself told to PW-17, Suman Bodh, that the deceased had stolen Rs. 15,000/- and a gold chain from his house and he sought help of Suman Bodh to trace the deceased. The above links in the chain of events are sufficient to establish that accused that accused persons had motive to commit the offence.
45. The evidence clearly demonstrates that accused persons after ascertaining the location of the deceased took him in a car and thrashed him and thereafter the deceased was thrown from a cliff, and he ultimately died. The story of the prosecution and the degree of evidence, which forms a complete chain of events, compel us to hold that the deceased was killed by the accused persons. In the wake of the facts and circumstances, which emanates from the records, it stands proved that the accused persons killed the accused. As far as accused Raman is concerned he was having intention to kill the deceased, so he inflicted injuries with an ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 45 intention to kill the deceased. As such accused Raman has committed the offence under Section 302 IPC. As far as accused Vishal and Arpan are concerned, their roles in the occurrence show .
that they were not having any intention to kill the deceased, but they caused injuries to the deceased, thus they are convicted under Section 304-Part II IPC.
46. Now, after exhaustively discussing the evidence, which has come on record, and also appreciating the same, we deem it apt to discuss the law as cited by the respective parties. The learned Additional Advocate General has relied upon the following judicial pronouncements so as to strengthen the case of the prosecution:
1. Shankar Alias Gauri Shankar and others vs. State of T.N., (1994) 4 Supreme Court Cases 478;
2. Suresh Chandra Bahri vs. State of Bihar, 1995 Supp (1) Supreme Court Cases 80;
3. K.I. Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 Supreme Court Cases 721;
4. Subodh Nath and another vs. State of Tripura, (2013) 4 Supreme Court Cases 122; &
5. R. Shaji vs. State of Kerala, (2013) 14 Supreme Court Cases 266.
47. On the other hand, the learned counsel for the respondents/accused, in order to get lateral support to what they ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 46 have argued, have placed reliance on the following judicial pronouncements:
1. Jagta vs. State of Haryana, (1974) 4 Supreme Court Cases 747;
.
2. State of Karnataka vs. Shrisail Sateeppa Karkalamethi and another, AIR 1994 Supreme Court 1244;
3. Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 Supreme Court Cases 110;
4. George and others vs. State of Kerala and another, (1998) 4 Supreme Court Cases 605;
5. Patel Hiralal Joitaram vs. State of Gujarat, (2002) 1 Supreme Court Cases 22;
6. Arun vs. State By Inspector of Police, Tamil Nadu, (2008) 15 Supreme Court Cases 501; &
7. Kilakkatha Parambath Sasi and others vs. State of Kerala, (2011) 4 Supreme Court Cases 552.
48. In the catena of above mentioned judgments, which are relied upon by the learned Additional Advocate General for the appellant/State and the learned counsel for the respondents/accused, respectively, we deem it proper to firstly discuss the judgments relied upon by the learned Additional Advocate General.
::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 4749. The learned Additional Advocate General has argued that corroborative evidence need not be of a kind which proves the offence against an accused, it would be sufficient if it connects the .
accused with the crime. He has further argued that rule of prudence, namely requiring corroboration does not mean that each and every circumstances mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated and general corroboration is sufficient.
He has drawn our attention to a decision of Hon'ble Supreme Court rendered in Shankar Alias Gauri Shankar and others vs. State of T.N., (1994) 4 Supreme Court Cases 478, wherein it is held in paras 15 and 33 as under:
"15. Coming to the extent and nature of corroboration, the courts have held that ordinarily the approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal and furnishing the need and assurance for acceptance of his testimony. The corroboration need not be of a kind which proves the offence against an accused and it would be sufficient if it connects the accused withthe crime. What is required is that there should be sufficient corroborative evidence to show that the approver is speaking the truth with regard to the accused whom he seeks to implicate. Such corroboration should be on material particulars and qua each accused. But it is not necessary that there should be independent corroboration of. every material circumstance and it need not consist of evidence which standing alone would be ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 48 sufficient to justify the conviction. In other words, there should be additional evidence by way of corroboration rendering the story of an accomplice probably true and that it is reasonably safe to act upon such evidence. The independent corroboration need not also .
cover the whole of the prosecution story or even whole of the material particulars, for that would amount to render the story of the accomplice itself superfluous. What is required is that the evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime. It is sufficient if there is corroboration as to the material circumstances and the crime and of the identity of the accused in relation to the crime. The corroborative evidence can be direct or circumstantial. Ultimately the question whether there is such sufficient corroboration or not again depends r upon the facts and circumstances of each case. (See Ravinder Singh v. State of Haryana , Rameshwar v. State of Rajasthan , Tribhuvan Nath v. State of Maharashtra and Vernireddy Satyanarayan Reddy v. State of Hyderabad.
... ... ... ... ... ...
33. At this stage we may usefully refer to the principles governing the evidentiary value of retracted confession. The confession is a form of admission consisting of direct acknowledgement of guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it and a statement that contains a self- exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that means not caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact. The judicial confessions are those which are made before a Magistrate or in court in due course of legal proceedings and when such a confession is retracted, the ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 49 courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. The rule of prudence namely requiring corroboration does not mean that each .
and every circumstance mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approver's evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction. It may not be necessary to refer to remaining aspects governing the use of retracted confession for the purposes of this case. Suffice it to say that it is also laid down that it is not illegal to base a conviction on an r uncorroborated confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the courts do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined in the light of the circumstances of the case. (See Balbir Singh v. State of Punjab , Sarwan Singh Rattan Singh case , Ediga Anamma v. State of A. P. and State of U. P. 9 v. Boota Singh.
The judgment (supra) is applicable to the facts of the present case, as it is settled law that evidentiary corroboration not necessarily be of a kind which proves the offence against an accused and it is sufficient that the corroborative evidence connects the accused with the crime. In the case in hand there is reasonably safe evidence which connects the accused persons with the commission of the offence.::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 50
Here the material circumstances have corroborative evidence, which forms a complete chain of circumstances. Another facet of the judgment (supra) is that the rule of prudence, namely requiring .
corroboration does not mean that each and every circumstances with regard to the participation of the accused in the crime must be separately and independently corroborated. Certainly, the confessional statement made by an accused is more self-exculpatory in the nature, thus point to point mathematical corroboration cannot be a yardstick to scrutinize such confessional statement.
50. The learned Additional Advocate General has also placed reliance upon a decision of Hon'ble Supreme Court rendered in Suresh Chandra Bahri vs. State of Bihar, 1995 Supp (1) Supreme Court Cases 80, wherein vide paras 40 and 71 it has been held as under:
"40. Learned counsel appearing for the appellant Raj Pal Sharma next contended that there is no direct evidence or ocular testimony with regard to the alleged murder either of Urshia Bahri or that of her two children Richa and Saurabh and the conviction of the appellants has been founded on the approver's evidence and other circumstantial evidence adduced by the prosecution. Learned counsel submitted that the two Courts below are not justified in relying on the evidence of accomplice/ approver Ram Sagar, PW 3 whose evidence is not free from serious doubt particularly in view of the fact that he was examined as a witness by the committing Magistrate on 30-1-1985 after about one year and two months of ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 51 the occurrence. It was urged that in the absence of corroboration of material particulars no conviction can be based on the testimony of an accomplice and since the circumstances alleged against the appellants are not proved to the hilt the same cannot be regarded as .
complete chain of circumstances established against the appellants so as to base their convictions on the same. Similar arguments were advanced by the learned counsel appearing for the appellants Suresh Bahri and Gurbachan Singh. Before we discuss the merits or demerits of the aforesaid submissions we would like to state that the law relating to conviction based on circumstantial evidence is well settled and it hardly requires a detailed discussion on this aspect. Suffice to say that in a case of murder in which the evidence that is available is only circumstantial in nature then in that event the facts and circumstances from r which the conclusion of guilt is required to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused but they also must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
... ... ... ... ... ...
71. The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock where according to him be bad thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 52 is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and .
confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence."
In the case in hand, the facts and circumstances, which are emanating from the records, are entirely incompatible with the innocence of the accused persons and in fact they exclude every reasonable hypothesis consistent with their innocence. The judgment (supra) further deals with Section 27 of the Evidence Act.
The principles culled out for correct applicability of Section 27 of the Act have been enunciated in the judgment. In the case in hand also, the prosecution has adhered to the principles, as enunciated in the judgment (supra). Thus, the judgment (supra) is fully applicable to the facts of the present case.
51. Another judgment, which is relied upon by the learned Additional Advocate General was rendered by the Hon'ble Supreme Court in K.I. Pavunny vs. Assistant Collector (HQ), Central ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 53 Excise Collectorate, Cochin, (1997) 3 Supreme Court Cases 721, wherein vide para 20 it has been held as under:
"20. The question then is whether the retracted confessional statement .
requires corroboration from any other independent evidence. It is seen 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 r 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 ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 54 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, r therefore, require to be examined in the light of the facts 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."
No doubt, confession is one of the species of admission and it is ordained legal position that confession can form the sole basis for conviction. Indeed, in cases of confessional statements, the accused is saddled with the onus to prove that his statement was obtained by threat, duress or promise and if it is established that his statement is shrouded with suspicious features, then it falls in the realm of doubt. In the case in hand, the accused persons could not prove that confessional statements were obtained by threat, duress and ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 55 promise, so the same are valuable and decisive aid available with this Court. The judgment (supra) is fully applicable to the facts of the present case.
.
52. In Subodh Nath and another vs. State of Tripura, (2013) 4 Supreme Court Cases 122, the Hon'ble Supreme Court has held as under vide para 16:
"16. The High Court, as a first court of appeal, on facts must apply its independent mind and record its own findings on the basis of its own assessment of evidence. Mere reproduction of the assessment of trial court may not be sufficient and in the absence of independent assessment by the High Court, its ultimate decision r cannot be sustained. The same view has been reiterated by this Court in Sakatar Singh vs. State of Haryana, (2004) 11 SCC 291."
The judgment (supra) is fully applicable to the facts of the present case, as the High Court, as a first Court of appeal, should apply its independent mind and record its own findings on the basis of its own assessment of evidence.
53. The Hon'ble Supreme Court in R. Shaji vs. State of Kerala, (2013) 14 Supreme Court Cases 266, has held as under
vide paras 33 to 37:
"33. Motive is primarily known to the accused himself and it therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. In a case of ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 56 circumstantial evidence, motive may be considered as a circumstance, which is a relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused. Motive loses all its significance in a case of .
direct evidence provided by eye-
witnesses, where the same is available, for the reason that in such a case, the absence or inadequacy of motive, cannot stand in the way of conviction. However, the absence of motive in a case depending entirely on circumstantial evidence, is a factor that weighs in favour of the accused as it "often forms the fulcrum of the prosecution story".
(Vide: Babu v. State of Kerala, 2010 9 SCC 189; Kulvinder Singh & Anr. v.
State of Haryana, 2011 AIR(SC) 1777;
Dandu Jaggaraju v. State of A.P., 2011 AIR(SC) 3387).
34. The evidence on record clearly r established, that the appellant had adequate reason to harbour animosity towards Praveen, as he may well have been unable to tolerate the intimacy that the deceased had developed with his wife. In light of the fact that the appellant had absolute faith and trust in the deceased, and had hence allowed him to have free access and absolute freedom in his house, the alleged act of betrayal of trust was committed by the deceased, which the appellant no doubt found gravely humiliating and agonizing.
35. Jilesh M.S. (PW.2) deposed, that when the appellant became aware of the illicit relationship between Praveen and his wife, he had said that in the event that he was able to lay his hands on Praveen, he would chop him up into pieces. The said threat was followed by a tirade of abuses. Jilesh M.S. (PW.2) consulted Pavithran (PW.1), in this regard. Both of them have deposed as regards the manner in which the situation was handled by the relatives of the appellant and Praveen.
36. We do not find force in the submission ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 57 made by Shri S. Gopakumaran Nair, learned senior counsel appearing for the appellant that the appellant had absolutely no grievance against his wife Smt. Shadi, and that even after the alleged incident, she had been accompanying her husband to all social .
events, as Ajith (PW.3) has deposed that the appellant had attended the engagement ceremony of Vinu (A-2) along with his wife and son, and that too, only 3 days prior to the alleged murder, thus, it would be most unnatural for him to annihilate Praveen (deceased). It is further urged that Praveen (deceased) had in fact, misbehaved with the appellant's wife, and the matter was settled upon the interference of several relatives, after which Praveen (deceased) was asked to quit his job and was also told not to enter in the city. In the event that the defence version is accepted, and it is believed that Praveen (deceased) had in r fact, misbehaved with the wife of the appellant, the same could actually lead to the inference that the appellant may have had an even stronger motive to eliminate Praveen (deceased).
37. Further, there is no force in the submission advanced on behalf of the appellant that Shirdhi (PW.4), the son of the appellant from his first wife, did not support the case of the prosecution. His statement is only to the effect that when the meeting took place on 26.11.2004 he did not attend the meeting and stayed upstairs. Thus, he has not deposed that the said meeting was not held. Additionally, his statement that Praveen (deceased) had tendered an apology and that upon the intervention of relatives and friends, the appellant had actually pardoned him, cannot be believed, as the said witness was not present at the meeting owing to which he could not have been an eye-
witness to the aforementioned part of the incident."
Certainly, in cases of circumstantial evidence existence of motive is ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 58 vital and in the present case the prosecution has been able to prove the existence of motive to kill the deceased. The judgment (supra) is fully applicable to the facts of the present case.
.
54. Now, we deem it apt to discuss the law relied upon by the learned counsel for the accused persons. According to him extra-judicial confession is a weak piece of evidence and the same, if lacks in probability, the Court should feel no difficulty in rejecting the same. He has relied upon a decision of Hon'ble Supreme Court rendered in Jagta vs. State of Haryana, (1974) 4 Supreme Court Cases 747, wherein vide paras 14 and 15 it has been held as under:
"14. So far as the alleged extra judicial confession of the accused is concerned, the prosecution has relied upon the evidence on Ram Singh (PW 4). After having been taken through the evidence of that witness, we find the same to be lacking in credence and devoid of any ring of truth. The police was admittedly present in the office of the co-operative society in village Farmana on the morning of January 15, 1972. We find no reason as to why the accused, instead of surrendering himself before the police, should go to the house of Ram Singh in village Farmana, blurt out a confession before him and ask him to produce the accused before the police. Nothing has been shown to us as to why the accused could not himself go and appear before the police. We have mentioned above that an attempt has been made in this case to introduce the story of the recovery of ornaments belonging to Phul Pati deceased from the accused. The attempt of the investigating agency to introduce a false story about the removal of the ornaments of the deceased and their recovery from the accused would in our ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 59 opinion, also affect the credibility of the evidence regarding the extra judicial confession alleged to have been made to Ram Singh PW. The evidence about an extra judicial confession is in the nature of things a weak piece of evidence. If the same is lacking in .
probability as it is in the present case, there would be no difficulty in rejecting the same. We are, therefore, not prepared to place any reliance upon the evidence regarding the extra judicial confession of the accused.
15. Mr. Marwah has argued on the basis of observations in some cases that the value of a confession should be judged by taking it along with other evidence adduced by the prosecution. This question, in our opinion, would arise only if there be reliable evidence about the making of the confession. If, however, the Court finds the evidence on the point as to whether the accused at r all made the confession to be unreliable and lacking in probability, no question need be considered as to what value would have been attached to the confession, if the evidence about the accused having made it had been found to be reliable and trustworthy. It is plain that the value of the confession can be gone into only if its existence is established by leading reliable evidence about the accused having made it."
However, in the case in hand the confessional statements made by accused Arpan and Vishal do not lack in probability and the same, if read in juxtaposition to other available material, provide links in the chain of circumstances and makes a complete chain, leaving no doubt in the mind of this Court that the confessional statements suffer from the vice of credibility and also lack probability. The judgment (supra) is not applicable to the facts of the present case.
::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 6055. The learned counsel for the respondents/accused have placed reliance upon a judgment of Hon'ble Supreme Court rendered in State of Karnataka vs. Shrisail Sateeppa Karkalamethi and .
another, AIR 1994 Supreme Court 1244, wherein it has been held as under:
"3. ........regarding the origin of the occurrence the prosecution case is totally cryptic and there is no explanation as to how so many accused happened to receive so many injuries."
In the judgment (supra) the Hon'ble Supreme Court on the basis of non-explanation qua the injuries sustained by the accused persons and non-availability of the material qua origin of the occurrence acquitted the accused persons. However, in the case in hand, the accused persons had not sustained injuries and evidence qua origin of occurrence is also not cryptic. So, the judgment (supra) is not applicable to the facts of the present case.
56. In a catena of cases the Hon'ble Supreme Court has culled out principles governing the hearing of appeal by the High Court against orders of acquittal passed by the Trial Courts. The learned counsel for the accused have also placed reliance on one of the judgment of the Hon'ble Supreme Court rendered in Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 Supreme Court Cases 110, wherein vide para 16 it has been held as under:
::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 61"16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be .
reiterated as under :-
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other r words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 62
box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously .
entertain as to the guilt of the accused."
The principles culled out in the judgment (supra) are no doubt useful while hearing an appeal by the High Courts against an order of acquittal passed by the Trial Court. However, the aforesaid principles clearly provide that if the findings recorded by the Trial Court are perverse, then the High Court has power to reconsider the matter, reappraise the evidence, and come to its own conclusion and findings. Thus, after giving thoughtful consideration to each and every aspect of matter, the High Court can reverse the findings recorded by the Trial Court. No doubt, after the order of acquittal passed by the learned Trial Court presumption of innocence is always in favour of the accused, however, the same is rebutable, provided after reappraisal of evidence the guilt of the accused is established beyond the shadow of reasonable doubt. Thus, the judgment (supra) is not applicable to the facts of the present case.
57. As per the learned counsel for the respondents/accused, statement of a witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and the same can only be used to ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 63 contradict and corroborate the version of its maker. To fortify their argument they have placed reliance on a judgment of Hon'ble Supreme Court rendered in George and others vs. State of Kerala .
and another, (1998) 4 Supreme Court Cases 605, wherein vide para 36 it has been held as under:
"3. We may now turn to the evidence of P. W. 50, detailed earlier. From the judgment of the trial Court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under S. 164, Cr. P. C. and not his evidence in Court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial Court :-
"If Ext. P. 42 (the statement recorded under S. 164, Cr. P. C.) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime."
In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under S. 164, Cr. P. C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.
Instead of appreciating the evidence of P. W. 50 from that perspective the trial Court confined its attention mainly to his statement so recorded and discredited him. This legal infirmity apart, factually also the trial Court committed patent errors. As earlier noticed, one of the grounds for disbelieving him was that in the trip sheet the name of the person who performed the journey, namely, A1 was not shown. If the trial Court had cared to look into the other trip sheets which form part of Ext. P. 54 it would have ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 64 found that in none of them the name of the person who hired the car is mentioned. The trial Court was, therefore, not at all justified in commenting upon such non-mentioning of the name of the hirer and concluding therefrom that the document was .
suspect. The comments of the trial Court that P. W. 50 made the statement before the Magistrate (Ext. P. 42) to oblige the police as his brother was arrested in connection with an excise case is also without any basis whatsoever. In drawing the above inference the trial Court was much influenced by the fact that the car in question, namely, KEK 3114 was seized by the police on May 31, 1990 and that it was released on June 28, 1990.
According to the trial Court it was wrongfully detained by the police for such a long period to compel P. W. 50 to make a statement according to its dictate. Once a car is seized in r connection with a case it can be returned pursuant to the order of a competent Court only and there is nothing on record to indicate that in spite of such an order the car was not returned so as to entitle the trial Court to comment that the long detention of the car was itself a suspicious circumstance. Having gone through the evidence of P. W. 50 we find that each of the reasons canvassed by the trial Court for disbelieving P. W. 50 is either legally unsustainable or factually incorrect."
Admittedly, in the case in hand, the statement of PW-17, Suman Bodh, was recorded under Section 164 Cr.P.C. and she has also deposed in the Court as well, but she was declared hostile. Now, it is well settled law that the testimony of hostile witness cannot be discarded in toto and relevant and helpful excerpts can always be treated as substantive piece of evidence. Certainly, the statement ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 65 recorded under Section 164 Cr.P.C. cannot be treated as substantive piece of evidence, however, the same can very well be used to have corroboration. The judgment (supra) is of no avail to the defence, .
hence discarded.
58. In another judgment of Hon'ble Supreme Court rendered in Patel Hiralal Joitaram vs. State of Gujarat, (2002) 1Supreme Court Cases 22, the Hon'ble Supreme Court has held that in acquittal cases the High Court has to proceed more cautiously and unless there is absolute assurance of the guilt of the accused on the basis of the evidence on record, the order of acquittal is not liable to be interfered with. The relevant para of the judgment is extracted hereunder for ready reference:
"11. Shri U. R. Lalit, learned senior counsel for the appellant urged, at the outset, that the High Court should have borne in mind that it was an appeal against the acquittal which they were dealing with and the approach should have been different from that of appeal against conviction. According to the learned senior counsel the Division Bench has overlooked the standard formulated by this Court for dealing with an appeal against acquittal and consequently the order of the acquittal was wrongly reversed. We reminded ourselves of the standard to be adhered to while dealing with an appeal against acquittal. In Dhanna v. State of M. P. (1996 (10) SCC 79) this Court has reiterated the perspective to be adopted in such a situation, after referring to some of the earlier decisions rendered by this Court on that aspect. We may extract the following observations from the said decision:::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 66
"Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been .
followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain r that benefit in the appellate Court also.
Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed."
Indeed, in appeal against acquittal there is always presumption of innocence of the accused and the accused is also entitled to get benefit of doubt, as from the Trial Court he stands acquitted.
However, if the High Court, even after proceeding cautiously comes to a conclusion qua the guilt of the accused, then there is no hurdle to reverse the findings of acquittal. The judgment (supra) is not helpful to the accused persons, hence the same is not applicable to the facts of the present case.
::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 6759. The Hon'ble Supreme Court rendered in Arun vs. State By Inspector of Police, Tamil Nadu, (2008) 15 Supreme Court Cases 501, has held that when two views are possible and the Trial .
Court took the view to acquit the accused, then such view of acquittal should not be reversed by the High Court. Relevant para of the judgment is reproduced hereunder:
"21. .......................
If two reasonable view are possible on the basis of the evidence on record and one favourable to the accused has been taken by the Trial Court, it ought not to be disturbed by the appellate Court.
(See Chandrappa vs. State of
r Karnataka, (2007) 4 SCC 415.
Admittedly, where two views are possible after reappraisal of the evidence by the High Court, the view favourable to the accused should be adhered to. However, in the case in hand, after threadbare consideration of the evidence, we find the accused persons guilty and thus there is only one view that the accused persons committed the offences, as alleged by the prosecution.
Therefore, the judgment (supra) is not applicable to the facts of the present case.
60. Lastly, the learned counsel for the accused persons have placed reliance on a decision of Hon'ble Supreme Court rendered in Kilakkatha Parambath Sasi, vs. State of Kerala, (2011) 4 Supreme Court Cases 552, wherein it has been held that the High ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 68 Court should only in exceptional cases interfere in appeal against acquittal. However, the case in hand falls in the category of exceptional cases and after carefully examining the evidence, the .
chain of circumstances becomes complete and clearly proves the guilt of the accused persons. Therefore, the judgment (supra) is not applicable to the facts of the present case.
61. In view of what has been discussed herein above, the present is a case of circumstantial evidence and the links in the chain of circumstances are well connected that they form a complete chain, which clearly proves the guilt of the accused persons and nothing else. The circumstance that the deceased came on the spot on the asking of PW-17, Suman Bodh, who was instructed by accused Raman to call the deceased on the spot and inform him about the location of the deceased, stands proved. It also stands proved that there had been friendship inter se accused Raman and PW-17. PW-17 categorically deposed that the deceased used to telephonically call her and he used to tell that he loves her. The deceased used to tell PW-17 that he wants to marry her, so she felt harassed by the deceased and ultimately she divulged all this to accused Raman, who asked her to call the deceased and inform about his location to him. Another strong circumstances, which stands proved, is that accused Raman told PW-17 that the deceased ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 69 had stolen `15,000/- and a gold chain from his house, so he sought help of PW-17 in locating the deceased. The medical evidence completely tallies with the prosecution story. Therefore, all the .
circumstances clearly point out that the accused persons perpetrated the crime, as alleged by the prosecution.
62. Indeed, statement recorded under Section 164 Cr.P.C.
cannot be read as substantive piece of evidence, however, Suman Bodh in her statement made under Section 164 Cr.P.C. stated that she is making the statement without any pressure. Thus, her statement under Section 164 Cr.P.C. can be said to be voluntary and it corroborates to its maker.
63. In view of exhaustive discussion on the evidence, which has come on record, and the settled legal position, as aforesaid, we hold that the findings recorded by the learned Trial Court are without appreciating the evidence correctly. We also find that the findings, as recorded by the learned Trial Court are the result of surmises and hypothesis, and after re-appreciating the evidence and law, we deem it proper to interfere with the findings of the learned Trial Court. Resultantly, the findings, as recorded by the learned Trial Court are set-aside, as the prosecution has proved the guilt of the accused persons conclusively and beyond the shadow of reasonable doubt. Therefore, accused Raman is convicted under ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP 70 Section 302 IPC and accused Vishal and Arpan are convicted under Section 304-Part II IPC.
64. Bail bonds, so furnished by the accused persons, are .
cancelled. Let the accused persons be produced before this Court on 31.08.2018 for hearing on quantum of sentence.
65. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 17th August, 2018 (virender) ::: Downloaded on - 18/08/2018 22:58:42 :::HCHP