Himachal Pradesh High Court
Sunil Kumar vs State Of Himachal Pradesh on 21 December, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 425 of 2015
Reserved on: December 16, 2015.
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Decided on: December 21, 2015.
Sunil Kumar ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
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The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Y.P.S. Dhaulta, Advocate.
For the respondent: Mr. P.M.Negi, Dy. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 1.7.2015, rendered by the learned Addl. Sessions Judge-II, Shimla, H.P., in Sessions Trial No. 36-S/7 of 2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 302 IPC, has been convicted and sentenced to undergo rigorous imprisonment for life with specific direction that he shall be without parole for initial 10 years and shall also pay a fine of Rs. 2,00,000/- for the offence punishable under Section 302 IPC. In lieu of default of payment of fine, he was further ordered to undergo simple imprisonment for five years in addition to the life imprisonment.
2. The case of the prosecution, in a nut shell, is that on 27.9.2013, information was received in the Police Station Dhalli to the effect that one Dhani Ram has died at place Purani Kothi Mashobra. On ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 2 this information, in order to verify the facts, SHO Madan Lal along with HHG Rajinder Kumar visited the spot. On the spot HC Ashish and Const.
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Geeta Ram were already present. Sh. Duni Chand brought the matter to the notice of the police that deceased Dhani Ram and accused Sunil Kumar were engaged as labourers with Contractor Subhash Kaushal for construction of residential house of Paramjeet Kaur at Purani Kothi. On of 27.9.2013, at about 8:30 AM, complainant Duni Chand was informed by Subhash Kaushal that his uncle Dhani Ram has died. On reaching the spot, he found that the deceased was lying on the upper storey and had rt sustained injury on his head with blunt weapon. The complainant had raised suspicion that the accused might have murdered the deceased as he had been picking up quarrel with the deceased. The investigation was carried out. The statement of Duni Chand was recorded under Section 154 Cr.P.C. vide Ext. PW-13/A. FIR Ext. PW-11/A dated 27.9.2013 was registered. The medical examination of accused was got conducted. MLC is Ext. PW-18/J. Accused made the disclosure statement vide Ext. PW-
13/C that he has kept the shovel inside the newly constructed house of Param Jeet Kaur. It was taken into possession vide Ext. PW-13/D. The post mortem was got conducted at IGMC, Shimla. It was opined that the deceased died of ante mortem head injury. The case property was deposited with MHC, PS Dhalli. The same was sent to FSL, Junga vide RC No. 145/13 and 148/13. On completion of the investigation, challan was put up after completing all the codal formalities.
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 33. The prosecution, in order to prove its case, has examined as many as 24 witnesses. The accused was also examined under Section 313 .
Cr.P.C. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Y.P.S.Dhaulta, Advocate, for the accused has vehemently argued that the prosecution has failed to prove the case against the of accused. On the other hand, Mr. P.M.Negi, Dy. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 1.7.2015.
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5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
6. PW-4 Mane Ram deposed that he received telephonic call from Duni Chand who informed that Sh. Dhani Ram was found murdered at place Purani Kothi, Mashobra. Sh. Dhani Ram along with the accused and others were working as labourers. On this information, he alongwith Kamla Devi, Hukam Chand and others reached the place Ghendi. He came to know that Dhani Ram and Sunil were residing together and had altercation with each other oftenly. He also came to know that Sunil murdered Dhani Ram.
7. PW-6 Dr. Sangeet Dhillon has conducted the post mortem examination. She has noticed the following injuries on the person of the deceased:
"Head and face.::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 4
1. A lacerated wound on the left temporal side of scalp with clotted blood present 5 cm x 3.5 cm x bone deep.
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2. A vertical LW on the left parietocopital region 6 x .25 x bone deep.
3. 4 x .25 x bone deep horizontal LW on the right eye brow and other vertical LW 1 x 1 cm.
4. Red contusion on the lower and the right cheek 2 x .5, another contusion 1 x 1 cm near the right lower lip.
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5. Red abraded contusion on the right posterior pat of right shoulder.
6. Neck Red contusion .5 x .5, 2cm from mid line.
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7. Lower limb. Red abraded contusion on the right gluteal region 1 x 1 cm."
The probable time that elapsed between injury and death was immediate and probable time between death and post mortem was around 36 hours.
8. PW-12 Kamla Devi deposed that her husband Dhani Ram was working as labourer at place Ghairi. On 27.9.2013, she received telephonic call from Mane Ram, her brother-in-law that her husband had been found murdered. On this, she went to place Ghairi, where she came to know that accused Sunil murdered him. She was told by her husband that accused had been picking up quarrel with him on many occasions.
Both accused and her husband were residing together. In her cross-
examination, she admitted that she has not informed her husband to report the matter with the police regarding the quarrel picked up by the ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 5 accused. She also admitted that the occurrence has not taken place in her presence.
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9. PW-13 Duni Chand deposed that on 27.9.2013, he received a telephonic call from Subhash Kaushal that his uncle had expired. He rushed to the spot where he found the dead body of deceased on the upper storey of the newly constructed house of Param Jeet Kaur. He had of sustained injuries on his head and backside of the head. The injuries were caused with blunt weapon. The blood was found on the spot. His uncle had been residing with accused Sunil Kumar. Accused picked up rt quarrel with his uncle on many occasions. The police arrived on the spot.
His statement under Section 154 Cr.P.C. Ext. PW-13/A was recorded as per her version. The police prepared the inquest papers. Accused made disclosure statement vide Ext. PW-13/C that shovel with which he had murdered the deceased was kept by him in newly constructed room of the house of Param Jeet Kaur. It was also signed by Subhash Kaushal. The shovel was taken into possession vide memo Ext. PW-13/D. In his cross-
examination, he admitted that the murder did not take place before him.
He did not know as to who had murdered the deceased. Volunteered that the deceased and accused were residing together. Later on, he stated that it was the accused who murdered Dhani Ram.
10. PW-14 Subhash Kaushal was the contractor. He was raising construction of the house of Param Jeet Kaur. He had engaged 5-6 labourers. They were residing together in temporary shed constructed on ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 6 the spot. On 27.9.2013, he received a telephonic call from Bhag Chand that Dhani Ram had sustained injury on his person and probably he has .
died. He informed Duni Chand. Thereafter, he informed the police. He went to the spot and found the dead body lying on the first floor of the newly constructed house. The deceased had sustained deep cut injury on the back of his head. The police visited the spot. On interrogation, of accused admitted his guilt and narrated to the police that he inflicted a blow of shovel on the person of deceased. He also revealed that the shovel had been kept by him in the newly constructed house. He was having the rt knowledge and could recover the same. On disclosure statement Ext. PW-
13/C, the shovel Ext. P-15 was got recovered by the accused. It was taken into possession vide memo Ext. PW-13/D. In his cross-
examination, he stated that the accused admitted the guilt on the spot but he could not say affirmatively as to who murdered Dhani Ram.
Before him, no quarrel took place between Dhani Ram and accused.
11. PW-15 Bhag Singh is the most material witness. According to him, Dhani Ram and Sunil, both labourers were residing in the building.
They were dining and residing together. He was residing in an old house which was about 50 meters away from the spot. On 26.9.2013 at about 1:00 PM, accused Sunil knocked his door and stated that Dhani Ram had fallen down from the stairs. Accused was under the influence of liquor and was frightened. He rushed to the spot and found that Dhani Ram was dead. The blood was oozing out from his head. He informed ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 7 Subhash Kaushal of the occurrence. However, he could not be contacted because of night hours. He called him in the morning at 6:00 AM. The .
contractor made a telephonic call to him at 8:00 AM. Thereafter, the contractor informed the police. The family members of Dhani Ram also appeared on the spot. He was declared hostile and cross-examined by the learned Public Prosecutor. According to him, portion A to A of his of statement mark-B was not recorded as per his version. Then, he admitted that his statement was recorded by the police as per his version.
12. PW-18 Insp. Madan Lal is the I.O. He recorded the statement rt of Duni Chand under Section 154 Cr.P.C. vide Ext. PW-13/A. FIR was registered on the basis of rukka Ext. PW-18/A. Photographs were taken on the spot. The clothes of the accused were also taken into possession.
The accused made disclosure statement that shovel with which he has committed the murder of the deceased was hidden by him in the newly constructed house vide Ext. PW-13/C. The demarcation of the spot was also carried out. The blood stained earth was also taken into possession.
The post mortem was got conducted. The statements of the witnesses were also recorded on the spot. The report from the FSL Ext. W-18/G alongwith report Ext. PW-3/A and PW-9/A were received in the Police Station.
13. PW-20. Dr. H.R.Rahi, deposed that the police had moved an application on 28.9.2013 at about 1:30 PM. He examined Sunil Kumar.
He was found conscious and oriented. He issued MLC Ext. PW-18/J. ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 8
14. The case of the prosecution is entirely based on circumstantial evidence. It is necessary for the prosecution to prove the .
entire chain of events and the evidence must point exclusively towards the guilt of the accused.
15. The most material statement is of PW-15 Bhag Singh.
According to him, the accused was residing with Sunil Kumar. They were of dining and residing together. He was residing in an old house which was about 50 meters away from the spot. On 26.9.2013 at about 1:00 PM, accused Sunil knocked his door and stated that Dhani Ram had fallen rt down from the stairs. Accused was under the influence of liquor and was frightened. He rushed to the spot and found that Dhani Ram was dead.
The blood was oozing out from his head. He informed Subhash Kaushal of the occurrence. Subhash Kaushal in turn informed the police. His statement was recorded under Sec. 161 Cr.P.C, vide mark-B. In his statement recorded under Sec. 161 Cr.P.C, he deposed that he went to the spot alongwith the accused but when he appeared as PW-15 before the Court, he has not stated that he has gone to the spot with accused.
Portion A to A of his statement Mark-B recorded under Sec. 161 Cr.P.C. is to the effect that when the police interrogated the accused sternly, then he confessed that he had killed the deceased with shovel and the shovel was hidden below the heap of timber and he could get it recovered. The police also took into possession his clothes which were worn by him.
Thus, according to the statement of PW-15 Bhag Singh recorded under ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 9 Sec. 161 Cr.P.C., accused himself has taken out the shovel from the wood and also handed over his clothes worn by him and despite that the police .
has recorded his disclosure statement under Section 27 of the Evidence Act, vide Ext. PW-13/C, on the basis of which recovery of shovel was made. PW-15 Bhag Singh was declared hostile and in his cross-
examination by the learned Public Prosecutor, he has deposed that portion of A to A of his statement mark-B was not recorded as per his version.
16. PW-4 Mane Ram deposed that he received a telephonic call from Duni Chand to the effect that Sh. Dhani Ram was found murdered rt at place Purani Kothi, Mashobra. Sh. Dhani Ram along with the accused and others were working as labourers. On this information, he alongwith Kamla Devi, Hukam Chand and others reached the place Ghendi. PW-12 Kamla Devi deposed that she received telephonic call from Mane Ram to the effect that her husband was found murdered. PW-4 Mane Ram has not stated that he informed Kamla Devi on 27.9.2013.
17. The case of the prosecution is also that the accused went to the house of PW-15 Bhag Singh and informed him that deceased had fallen down from the stairs. According to PW-15 Bhag Singh, the accused was under the influence of liquor and was frightened. It has come on record that the accused and deceased used to dine and reside together.
In case, the accused had killed Dhani Ram, his first impulse would have been to run away from the spot instead of informing PW-15 Bhag Singh that deceased had fallen down from the stairs.
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 1018. PW-15 Bhag Singh deposed that accused was under the influence of liquor. He was examined by PW-20 Dr. H.R.Rahi. According .
to the doctor, the accused was found conscious and oriented. He has not noticed that the accused was under the influence of liquor.
19. In the cases based upon circumstantial evidence, the motive plays a very important role. In the present case, the police has not of attributed any motive to the accused as to why he would kill Dhani Ram (deceased).
20. Their lordships of the Hon'ble Supreme Court in the case of rt Dandu Jaggaraju vrs. State of Andhra Pradesh, reported in (2011) 14 SCC 674, have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. It is this circumstance which often forms the fulcrum of prosecution story. It has been held as follows:
"9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story."
21. Their lordships of the Hon'ble Supreme Court in the case of Sathya Narayan vrs. State rep. by Inspector of Police, reported in (2012) 12 SCC 627, have held that in the case of circumstantial ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 11 evidence, motive also assumes significance since absence of motive would put Court on its guard and cause it to scrutinize each piece of evidence .
closely in order to ensure that suspicion, omissions or conjectures do not take place of proof. It has been held as follows:
"42) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure of that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with rt the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust."
22. Their lordships of the Hon'ble Supreme Court in the case of Majenderan Langeswaran vrs. State (NCT of Delhi) and another, reported in (2013) 7 SCC 192, have held that onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. It has been held as follows:
"3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 12 allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. .
Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the of ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the rt ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996.
16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.
17. In the case of Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, this Court observed as under:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 13 evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must .
have been done by the accused. ...."
18. In the case of Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial of evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; rt (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)"
19. In the case of C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
20. In the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 14"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching .
evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
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21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but rt also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
This Court further observed in the aforesaid decision that:
"17. At this stage, we also deem it proper to observe that in exercise of power underArticle 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court--Bharat v. State of M.P., (2003) 3 SCC
106. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime."
22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 1523. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of .
Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn of from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing rt links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
24. In the case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under:
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 16"12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain .
conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution.
There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused of has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of rt the accused or the guilt of any other person."
25. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289, this Court while reiterating the above principles further added that:
"28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269)"
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else."
23. Their lordships of the Hon'ble Supreme Court in the case of Rishipal vrs. State of Uttarakhand, reported in (2013) 12 SCC 551, ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 17 have held that motive does not have a major role to play in cases based on eye witnesses account of incident but it assumes importance in cases that .
rest entirely on circumstantial evidence. Their lordships have further held that circumstances sought to be proved against accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold of that accused is guilty of offences with which he is charged. It has been held as follows:
"15. The second aspect to which we must straightaway refer is the absence rt of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 18
19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the .
appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial of evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The rt disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."
24. Though the case of the prosecution is also that the deceased and accused used to quarrel, but PW-14 Subhash Kaushal has categorically stated in his examination-in-chief that no quarrel had ever taken place before him between Dhani Ram (deceased) and the accused and he could not say affirmatively as to who had murdered Dhani Ram.
Thus, extra-judicial confession has not been made before any authority.
It is a weak piece of evidence.
25. Their lordships of the Hon'ble Supreme Court in the case of State of Rajasthan vrs. Kashi Ram, reported in (2006) 12 SCC 254, have held that extra judicial confession is a weak piece of evidence and must be proved like any other fact. It has been held as follows:
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 19"14. On appeal, the High Court reversed the findings of fact recorded by the trial court and acquitted the respondent. Before adverting to the other incriminating circumstances we may at the .
threshold notice two of them namely - the circumstance that the respondent made an extra-judicial confession before PWs 3 and 4, and the circumstance that recoveries were made pursuant to his statement made in the course of investigation of the waist chord used for strangulating Kalawati (deceased) and the keys of the locks which were put on the two doors of his house. The High Court has disbelieved the evidence led by the prosecution to prove these circumstances and we find ourselves in agreement with the High Court. There was really no reason for the respondent to make a of confessional statement before PWs 3 and 4. There was nothing to show that he had reasons to confide in them. The evidence appeared to be unnatural and unbelievable. The High Court observed that evidence of extra-judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of an extra- judicial confession, the confessional evidence must be proved like rt any other fact and the value thereof depended upon the veracity of the witnesses to whom it was made. The High Court found that PW- 3 Dinesh Kumar was known to Mamraj, the brother of deceased Kalawati. PW-3 was neither a Sarpanch nor a ward member and, therefore, there was no reason for the respondent to repose faith in him to seek his protection. Similarly, PW-4 admitted that he was not even acquainted with the accused. Having regard to these facts and circumstances, we agree with the High Court that the case of the prosecution that the respondent had made an extra-judicial confession before PWs-3 and 4 must be rejected."
26. Their lordships of the Hon'ble Supreme Court in the case of Ajay Singh vrs. State of Maharashtra, reported in (2007) 12 SCC 341, have held that extra-judicial confession must be voluntary and the person to whom confession is made should be unbiased and not inimical to the accused. It is for the Court to judge credibility of the witness' capacity and thereafter to decide whether his or her evidence has to be accepted or not. Their lordships have also explained the terms "confession" and "statement" as under:
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 20"8. We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material .
difference. While dealing with a stand of extra judicial confession, Court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused.
Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the Court should not accept such evidence if actual of words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what rt has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may he many who are possessed of normal memory and do so. It is for the Court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous.
10. The expression 'confession' is not defined in the Evidence Act, 'Confession' is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word 'statement' is "act of stating; that which is stated; a formal account, declaration of facts etc." The word 'statement' includes both oral and written statement. Communication to another is not however an essential component to constitute a 'statement'. An accused might have been over-heard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. It such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 21 consideration before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1 U 68). After referring to some passages written by well known authors on the "Law of Evidence" Subba Rao, .
J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In paragraph 5 of the judgment, this Court held as follows:
"...Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably of true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the rt admission pr confession. as the case may be.... If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt (Emphasis supplied)"
27. PW-15 Bhag Singh, though in his statement recorded under Section 161 Cr.P.C., as noticed by us hereinabove, has deposed that the accused has made extra-judicial confession, but he has not stated so while appearing as PW-15 before the Court. There is contradiction in the statement recorded under Section 161 Cr.P.C and statement recorded in the Court as PW-15.
28. The Division Bench of the Allahabad High Court in the case of Munesh vrs. State of U.P., reported in 2004 Cr. L.J. 1529, has held that the evidence of witnesses can only be accepted if on core or substratum of prosecution case their statement in trial Court is ::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 22 consistent with their statement under Section 161 Cr.P.C. and where it is not, the Court would have no compunction in rejecting it. It has been .
held as follows:
"[16] We have no reservations in observing that if witnesses do not state about the core/substratum of the prosecution case in their statements under Section 161, Cr.P.C. and when during the course of their cross examination, in the trial Court, confronted with the omission, fail to give a plausible explanation for it, as is the case with Madan Lal P.W. 2 and of Suresh Chandra P.W. 3, it would be extremely hazardous to accept their testimony, for there is always the lurking fear in the mind of the Court that in order to fill the lacuna in their evidence, they have made improvements. We make no bones in observing that in Criminal cases, evidence of witnesses can rt only be accepted, if on the core/substratum of the prosecution case their statement in the trial Court is consistent with their statement under Section 161, Cr.P.C.
and where it Is not, as is the case here, the Court would have no compunction in rejecting it."
29. The prosecution has failed to prove the motive attributed to the accused person. The chain of events is incomplete. Thus, the prosecution has failed to prove the case against both the accused beyond reasonable doubt.
30. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 1.7.2015, rendered by the learned Addl. Sessions Judge-
II, Shimla, H.P., in Sessions trial No. 36-S/7 of 2014, is set aside.
Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him.
Since the accused is in jail, he be released forthwith, if not required in any other case.
::: Downloaded on - 15/04/2017 19:33:49 :::HCHP 2331. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in .
conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
December 21, 2015, ( Sureshwar Thakur ),
(karan) Judge.
of
rt
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