Himachal Pradesh High Court
Between vs Kailash on 21 October, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 21st DAY OF OCTOBER, 2022 .
BEFORE HON'BLE MS. JUSTICE SABINA & HON'BLE MR. JUSTICE SUSHIL KUKREJA CRIMINAL APPEAL No.75 of 2018 CRIMINAL APPEAL No.76 of 2018 CRIMINAL APPEAL No.77 of 2018
1. CRIMINAL APPEAL No.75 of 2018 Between:-
KAILASH KUMAR, AGE 25 YEARS, SON OF SHRI RAMESH KUMAR, RESIDENT OF DUSALANI, POST OFFICE, MCLEODGANJ, TEHSIL DHARAMSHALA, DISTRICT KANGRA, HIMACHAL PRADESH.
(NAME AND ADDRESS HAS BEEN REPRODUCED FROM THE IMPUGNED JUDGMENT) PRESENTLY UNDERGOING HIS SENTENCE IN DISTRICT JAIL DHARAMSHALA, DISTRICT KANGRA, HIMACHAL PRADESH. ......APPELLANT (BY MS. SHEETAL VYAS, ADVOCATE) AND STATE OF HIMACHAL PRADESH THROUGH ITS HOME SECRETARY ......RESPONDENT (BY MR. KUNAL THAKUR, DEPUTY ADVOCATE GENERAL) ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 2
2. CRIMINAL APPEAL No.76 OF 2018 Between:-
.
MAHESH KUMAR, AGE 21 YEARS, SON OF SHRI KISHORI LAL, RESIDENT OF RAWA, POST OFFICE, KARERI, TEHSIL DHARAMSHALA, DISTRICT KANGRA, HIMACHAL PRADESH.
(NAME AND ADDRESS HAS BEEN REPRODUCED FROM THE IMPUGNED JUDGMENT) PRESENTLY UNDERGOING HIS SENTENCE IN DISTRICT JAIL DHARAMSHALA, DISTRICT KANGRA, HIMACHAL PRADESH. ......APPELLANT (BY MS. SHEETAL VYAS, ADVOCATE) AND STATE OF HIMACHAL PRADESH THROUGH ITS HOME SECRETARY ......RESPONDENT (BY MR. KUNAL THAKUR, DEPUTY ADVOCATE GENERAL)
3. CRIMINAL APPEAL No.77 OF 2018 Between:-
RINKU KUMAR, 23 YEARS, SON OF SHRI RAJ KUMAR, RESIDENT OF DHALED, POST OFFICE, SALLI, TEHSIL SHAHPUR, DISTRICT KANGRA, HIMACHAL PRADESH. (NAME AND ADDRESS HAS BEEN REPRODUCED FROM THE IMPUGNED JUDGMENT) PRESENTLY UNDERGOING HIS SENTENCE IN DISTRICT JAIL DHARAMSHALA, DISTRICT KANGRA, HIMACHAL PRADESH. ......APPELLANT ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 3 (BY MS. SHEETAL VYAS, ADVOCATE) .
AND
STATE OF HIMACHAL PRADESH THROUGH
ITS HOME SECRETARY ......RESPONDENT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL)
___________________________________________________ These Criminal Appeals coming on for pronouncement of judgment this day, Hon'ble Ms. Justice Sabina delivered the following:
r JUDGMENT Vide this judgment, above mentioned three appeals would be disposed of as they have arisen out of common judgment of conviction and order of sentence dated 1.12.2017, passed by learned Additional Sessions Judge (II), Kangra at Dharamshala (H.P.), in Sessions Trial No.3-D/VII/2016, titled as State of Himachal Pradesh vs. Kailash Kumar and others.
2. Prosecution story, in brief, is that on 30.10.2015, complainant Miss Tseringyoudon alongwith her friend Chockdyi, were returning to her rented accommodation from hotel Lahasa at Mcleodganj after consuming two bottles of beer. When they reached near vegetable market on Bhagsu road, three boys came on a black motorcycle. The said persons were not known to the complainant, but she could ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 4 recognize them from their faces. Complainant was walking ahead of Chockdyi. One of the boys took out a knife and gave a blow with it in .
the abdomen of Chockdyi. Complainant cried for help and the boys fled away from the spot on their motorcycle. Complainant could not read the number of the motorcycle. In the meantime, a taxi having two foreign passengers travelling in it came there. Then, the said foreigners got down from the taxi and the complainant brought Chockdyi to zonal Hospital, Dharamshala where he was declared dead.
3. On the basis of the statement of complainant, formal FIR No.60 dated 31.10.2015 was registered at Police Station, Mcleodganj, District Kangra, under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short "the IPC").
4. After completion of the investigation and necessary formalities, Challan was presented against the appellants, on 11.4.2016. Charges were framed against the appellants under Section 302 read with Section 34 of the IPC, to which, they did not plead guilty and claimed trial.
5. During trial, prosecution examined 21 witnesses in order to prove its case. Accused, when examined under Section 313 of the Code of Criminal Procedure, 1973, after close of prosecution evidence, prayed that they were innocent and had been falsely involved in the case on ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 5 the basis of suspicion. Appellants examined one witness in their defence.
.
6. Learned trial Court, vide impugned judgment/order dated 1.12.2017, ordered the conviction and sentence of the appellants as under:-
1. 302 IPC To undergo imprisonment for In default of read with life and to pay a fine of payment of fine, Section Rs.50,000/-. to further 34 of the undergo rigorous IPC imprisonment for r one year.
7. Hence, the present appeals by the appellants.
8. Ms. Sheetal Vyas, learned counsel for appellants has submitted that the appellants have been falsely involved in the case. So far as complainant is concerned, she has made material improvements in her statement during trial. The said witness was not known to the appellants and the appellants had no motive to commit the murder.
The appellants have specifically stated in their statements under Section 313 Cr.PC that they had been shown to the complainant at Sky Haven hotel as well as in the Police Station before the Test Identification Parade. So far as the Test Identification Parade is concerned, it was evident from the testimony of PW-2, Parveen Kumar that the complainant had seen the appellants when they were arrested from hotel, Sky Haven. No reliance can be placed on the report of the ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 6 Forensic Science Laboratory also as it has come in the statements of PW-2 Parveen Kumar and PW-19 Rajinder Pal that the appellants had .
already washed their clothes before they were taken into possession.
If that be so, then there was no occasion of presence of blood stains on the clothes of the appellants which could be matched with the blood sample of the deceased.
9. Learned counsel for the appellants has placed reliance upon the decision of the Hon'ble Supreme Court in Ram Kumar Pande vs. The State of Madhya Pradesh, 1975 AIR (SC) 1026, wherein it was held as under:-
" 9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were, known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R.
We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."::: Downloaded on - 21/10/2022 20:06:28 :::CIS 7
10. Learned counsel for the appellants has also placed reliance upon the decision of the Hon'ble Supreme Court in Kansa Behera vs. .
State of Orissa, 1987 AIR (SC) 1507, wherein it was held as under:-
"11. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the cloths of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn."
11. Learned counsel for the appellants has further placed reliance upon the decision of the Hon'ble Supreme Court in Rameshwar Singh vs. State of Jammu and Kashmir, 1971 (2) SCC 715, wherein it was held as under:-
"6. Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 8 known to the witness concerned then identification of the accused by the witness soon after the former's .
arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court.... ... ..."
12. Learned counsel for the appellants has also placed reliance upon the decision of the Hon'ble Supreme Court in Heera and another ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 9 vs. State of Rajasthan (2007) 10 SCC 175, wherein it was held as under:-
.
"23. In State of U.P. v. Boota Singh (1979) 1 SCC 31, this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
13. Mr. Kunal Thakur, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the testimony of the eye witness, PW-1 Tseringyoudon fully proves the case of the prosecution. The said witness has withstood the test of cross-examination. The Forensic Science Laboratory report also establishes the prosecution story.
14. Present case relates to murder of Chockdyi. The case rests on an eye witness account. The prosecution case mainly rests on the testimony of PW-1 complainant and the report of Forensic Science Laboratory (Ex.PW17/B).
15. As per the prosecution story, the deceased had died on account of stab injuries. PW-21 Dr. Rahul Gupta deposed that on 31.10.2015, he had conducted postmortem examination on the dead body of the deceased and had found following injuries on his persons:-
::: Downloaded on - 21/10/2022 20:06:28 :::CIS 10"1. Penetrating stab wound 2.5 cm in length, gaped upto 1 cm in middle with protruded omentum and .
mesentery was present over left abdominal plank 3 cm below left coastal margin and 10 cm away from middle. On dissection, the track of stab was front to back, right to left and above downwards, and was traversing through omentum mesentery and left renal parenchyma alongwith vessels. Angle of lower end of stab wound was acute and upper end was rounded (obtuse).
2. Punctured stab wound 1.5 cm in length, gaped upto 1 cm in middle was present over outer aspect and mid of left arm and was present transversely. Track was traversing below upwards from right to left and was going through muscle mass and underneath vessels upto bone (2.5 cm in depth). Angle of right end of stab was acute and left end was obtuse.
3. Punctured stab would 3.5 cm in length gaped upto 1.5 cm was present over front of left thigh 22 cm below iliac spine (anterosuperior). The track of stab was traversing below upwards, right to left and was going through muscles and femoral vessels. Depth of stab was 4 cm.
4. Multiple grazes were present over knuckles of right hand."
16. PW-21 Dr. Rahul Gupta proved the postmortem report (Ex.PW21/A). He further deposed that deceased had died on account ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 11 of haemorrhagic shock in a case of multiple stab wound injuries. The manner of death was homicidal in nature.
.
17. Thus, the deceased had died on account of injuries suffered by him with a sharp edged weapon.
18. Prosecution case rests on the testimony of PW-1, the eye witness to the occurrence. So far as the other material prosecution witnesses, PW-3 Deepak, PW-4 Goldy Sharma, PW-5 Neeraj Kumar, PW-6 Suresh Bahadur, PW-7 Pratishwar Pathania, PW-8 Methew, PW-9 Manoj Kumar, PW-16 Bhopu Kumar, PW-13 Vipan Kumar and PW-14 Raj Kumar are concerned, they did not support the prosecution case during trial. So far as PW-7 to PW-9, are concerned, their cross-
examination was deferred, but the said witnesses were never produced again for their cross-examination by the defence counsel. Thus, the prosecution case only rests on the testimony of PW-1.
19. So far as the initial statement of PW-1 recorded by the Police under Section 154 of the Code of Criminal Procedure (Ex.PW1/A), is concerned, a perusal of the same reveals that the complainant had not given any description of the persons who had come on the motorcycle, as to whether they were tall or short, bearded or not or the kind of clothes they were wearing etc. She had merely stated that three persons had come on a motorcycle and one of the said persons had given a knife blow to the deceased. She had also not given description ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 12 of any altercation which had taken place between the deceased and the said persons. She had also not attributed any specific role to the .
accused played by them at the time of incident.
20. However, while appearing in the witness box, PW-1 had stated that in July, 2015 she had come to Dharamshala from Nepal and had become friendly with the deceased. On 30.10.2015, she had gone to Lahasa hotel at Mcleodganj with the deceased and they had taken dinner together and had also consumed a bottle of beer. At about 11/1130 p.m., they had left the hotel and the deceased had agreed to escort her. When they had reached vegetable market on Bhagsu road, three Indian boys, who were present in the Court, chased them on their motorcycle from the hotel and parked the same in front of them near the vegetable market. The boy who was sitting on the last pillion seat (she pointed towards accused Mahesh), caught hold of the deceased from the collar of his T-shirt and the accused sitting in the middle (she pointed towards accused Rinku) also joined Mahesh Kumar and they gave fist blows to the deceased. The third accused Kailash also joined his co-accused and one of them was having a knife and then accused Kailash gave a knife blow in the stomach of the deceased. She got frightened and pretended to make a call to the Police. Accused stayed there for some time and she could see their faces as the light of the motorcycle after striking against the wall fell on their faces. Appellants ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 13 said that they would see as to who could catch them. She could not read the registration number of the motorcycle. When she started .
crying for help, accused fled away from the spot on their motorcycle.
21. Thus, although, PW-1 had not disclosed the manner of incident at the time of lodging of the FIR, but while appearing in the witness box, she had given the details of the manner of incident. The witness was duly confronted with the improvements made by her while appearing in the witness box with her previous statement (Ex.PW1/A).
During her cross-examination, the witness also volunteered that while they were proceeding towards her premises, she had seen the accused persons in front of the Tibetian Welfare Office, as they had parked their motorcycle there and they had teased her, but she had not responded to them and had continued walking towards the hotel. The said part of the statement of this witness, in her cross-examination, was also confronted to her with her previous statement where the said fact was not so recorded. In her cross-examination, she admitted that she had not disclosed the physical features of the accused to the Police before their Test Identification Parade was conducted.
22. Thus, from the testimony of PW-1, it is evident that she has made material improvements in her statement while appearing in the witness box with regard to the manner of incident. Although, the PW1 had stated in her statement (Ex.PW1/A) that she could identify the ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 14 accused from their faces but she had failed to give any description with regard to the physical features of the accused at the time of lodging of .
the FIR.
23. In order to establish the identity of the accused, Test Identification Parade was held during investigation of the case. In this regard, prosecution has placed reliance on the testimony of PW-17 Shri Ashok Kumar Vatsal, Judicial Magistrate who had conducted the Test Identification Parade on 1.11.2015. The said witness proved the Test Identification Parade report (ExPW17/H), wherein PW-1 had identified all the accused.
24. PW-1 has also deposed to the effect that she had participated in the Test Identification Parade of the accused and had duly identified them. However, she denied the suggestion that the accused had been shown to her in the Police Station before conducting the Test Identification Parade. However, the testimony of PW-2 Parveen Kumar who was working as a Driver in Police Station, Mcleodganj reveals that on the day the accused were arrested, PW-1 was also present in hotel 'Sky Haven'. PW-2 has categorically deposed in his cross-examination that PW-1 was present with them when the accused were nabbed from hotel 'Sky Haven' and at that time the faces of the accused were not muffled. In his examination-in-chief, this witness deposed that on ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 15 31.10.2015, he had gone with the Police officials to hotel 'Sky Haven' and the accused were apprehended from room No.202 of the hotel.
.
25. Thus, from the testimony of PW-2, it is evident that the accused had already been seen by the complainant/PW-1 on 31.10.2015 before the Test Identification Parade was conducted before the Judicial Magistrate (PW-17) on 1.11.2015. Hence, the Test Identification parade conducted in the present case loses its significance as the accused had already been seen by the complainant at the time of their arrest from the hotel 'Sky Haven'.
26. Keeping in view the fact that PW-1 while appearing in the witness box during trial has made material improvements with regard to the incident witnessed by her and the fact that before the Test Identification Parade, she had already seen the accused at the time of their arrest, the identification of the accused by PW-1 with regard to commission of offence by them is rendered doubtful.
27. Prosecution has also based reliance on the report of the Forensic Science Laboratory, vis-à-vis blood found on the articles of the accused. The result of report (ExPW17/B) reads as under:-
"RESULTS The exhibits/cuttings were subjected to biological and serological analyses in the laboratory. Benzidine test was performed to detect the presence of blood. The species of origin was determined by the gel-diffusion technique and blood grouping was done by the ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 16 absorption-elution method. On the basis of aforesaid examinations, results were as under:-
.
1. Human blood of group 'O' was detected in exhibit-
1 (blood sample, Tsultrim Choedhan) exhibit-2b (vest Tsultrim Choedhan), exhibit-2c (jacket, Tsultrim Choedhan), exhibit-2d (lower pajama Tsultrim Choedhan), exhibit-3a (blood lifted on cotton thread from spot no.1), exhibit-3b (blood lifted on cotton thread from spot no.2), exhibit-3c (blood lifted on cotton thread from spot no.3), exhibit-3d (blood lifted on cotton thread from spot no. 4) and exhibit-6b track suit upper, Rinku Kumar).
2. Human blood was detected in exhibit-2a (T-shirt Tsultrim Choedhan), and exhibit-2e (underwear, Tsultrim Choedhan), but the results were inconclusive in respect of blood groups.
3. Human blood was detected in exhibit-5a (pants, Kailash Kumar), exhibit-5b (sweater, Kailash Kumar) and exhibit-5c (shoes, Kailash Kumar), but the amount of blood was insufficient for blood grouping.
4. Blood was detected in traces in exhibit-4 (knife) and exhibit-6a (pants, Rinku Kumar), but the amount of blood was insufficient for serological examinations.
5. Blood was not detected in exhibit-5d (socks, Kailash Kumar)."::: Downloaded on - 21/10/2022 20:06:28 :::CIS 17
28. A perusal of the report of Forensic Science Laboratory reveals that the blood group of the deceased was 'O'. The blood stains on the .
Track Suit upper belonging to Rinku Kumar matched with the blood group of the deceased. So far as the blood stains on the shoes of accused Kailash Kumar are concerned, the same were found to be insufficient for blood grouping. The blood traces detected on the knife and pants of Rinku Kumar were also insufficient for examination. The blood was not detected on the socks of Kailash Kumar. Thus, so far as the Track Suit upper of appellant Rinku Kumar is concerned, the blood stains found on the same have been opined by the Forensic Science Laboratory as having matched with the blood group of the deceased.
29. Let us examine the evidence with regard to the recovery of the clothes of the appellants. So far as PW-2 is concerned, he has categorically deposed that Pant and upper of the Track Suit from appellant Rinku were taken in possession. He also admitted that the said appellant had told the Police that he had washed the clothes as they were blood stained. He stated that he could not say if the clothes shown to him were the same which were recovered from appellant Rinku.
30. PW-19 Rajinder Pal, Investigating Officer deposed that as per recovery memo (Ex.PW2/F) clothes of appellant Rinku were taken in possession and in the said memo there was no mention that the said ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 18 clothes were blood stained. Appellant had stated that he had washed the clothes and at the time of seizure of the clothes they were dry.
.
31. Thus, from the testimonies of PW-2 and PW-19, it transpires that the clothes of appellant Rinku which were taken in possession did not bear any blood stains. If that be so, then there is no explanation furnished by the prosecution, as to how the Forensic Science Laboratory found blood stains on the Track Suit upper of appellant Rinku sufficient for examination. The recovery memo (Ex.PW2/F) does not show that the Track Suit upper of appellant Rinku was having any blood stains. Rather, the said memo shows that the appellant had washed his pant. In this factual background, no reliance can be placed on the report of the Forensic Science Laboratory to come to a conclusion that the clothes worn by appellant Rinku at the time of incident carried blood stains of the deceased.
32. It is a settled preposition of law that the prosecution has to prove its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. Whenever a doubt arises in the prosecution case, the benefit of the same has to be extended to an accused. In the present case, the prosecution case is rendered doubtful as the statement of PW-1/complainant with regard to the involvement of the appellants in the crime fails to inspire confidence, in view of the improvements made by her while appearing in the witness ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 19 box. The report of the Forensic Science Laboratory also fails to advance the prosecution case as discussed above.
.
33. Keeping in view the totality of the facts and circumstances of the case, we are of the opinion that the prosecution has failed to establish its case against the appellants beyond the shadow of reasonable doubt. Learned trial Court fell in error in ordering the conviction and sentence of the appellants with regard to charge framed against them.
34. Accordingly, the appeals are allowed. The impugned judgment of conviction and order of sentence dated 1.12.2017, passed by learned Additional Sessions Judge (II), Kangra at Dharamshala (H.P.), in Sessions Trial No.3-D/VII/2016, titled as State of Himachal Pradesh vs. Kailash Kumar and others, are set aside. Appellants are acquitted of the charge framed against them in case FIR No.60 dated 31.10.2015, registered at Police Station, Mcleodganj, District Kangra, under Section 302 read with Section 34 of the Indian Penal Code.
Appellants be set at liberty forthwith, if not required in any other case.
35. Office is directed to issue release warrants of the appellants forthwith.
36. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants namely Kailash Kumar, son of Shri Ramesh Kumar, Mahesh Kumar, son of Shri Kishori Lal and Rinku Kumar, son of Shri Raj Kumar, are directed to furnish a personal bond ::: Downloaded on - 21/10/2022 20:06:28 :::CIS 20 in the sum of Rs.25,000/-each, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a .
period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
Pending miscellaneous application(s), if any, shall also stand disposed of.
( Sabina ) Judge ( Sushil Kukreja) Judge October 21st, 2022 (ks) ::: Downloaded on - 21/10/2022 20:06:28 :::CIS