Himachal Pradesh High Court
State Of Himachal Pradesh vs Mahinder Kumar & Ors on 11 December, 2017
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 335 of 2014
.
Date of decision: 11.12.2017
State of Himachal Pradesh ... Appellant
Versus
Mahinder Kumar & Ors. ... Respondents
Coram : r to
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. V.S. Chauhan, Addl. Advocate
General and Mr. Vikram Thakur
Deputy Advocate General.
For the respondents: Mr. Satyen Vaidya, Senior Advocate
with Mr. Vivek Sharma, Advocate.
Ajay Mohan Goel, J.:
By way of this appeal, State has challenged the judgment passed by the Court of learned Additional Sessions Judge-II, Solan, in Sessions Trial No. 2-AK/7 of 2013/12 decided on 23.05.2014, vide which learned trial Court has 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/12/2017 22:59:29 :::HCHP 2acquitted the accused for commission of offences punishable under Sections 302, 201 read with Section 34 of Indian Penal .
Code.
2. In brief, the case of the prosecution was that deceased Mehar Chand in the year 2012 was working as a driver of a truck belonging to accused Mahinder. On 01.01.2012 Mehar Chand transported sand in the said truck bearing registration No. HP-11-B-3044 from Bhumati and thereafter he parked the said vehicle and went to r village Katal. Though he was married and was having children but on account of differences with his wife, she was residing in her parental house. On 02.01.2012 Mehar Chand went to the house of Jia Lal in village Badmal and had his breakfast there. Thereafter, he went to the house of Varinder Kumar in village Sothi where they consumed liquor together. Thereafter, he went to one Het Ram and there he consumed liquor with Het Ram. On the same day, at around 07.00 P.M. all the accused persons consumed liquor in the shop of one Chaman Lal in village Bhumati. Thereafter, they left the said shop and purchased another bottle of liquor and proceeded towards their village. On their way when they arrived at a place known as Bill-Ka-Dohra near ::: Downloaded on - 15/12/2017 22:59:29 :::HCHP 3 village Jhokhari, they sat on the side of the road near a Peeple tree and started consuming liquor. Relations between .
deceased Mehar Chand and accused Mahinder were strained due to litigation. An altercation ensued inter se accused and deceased and in the course of the same, accused severely assaulted the deceased with kick and fist blow, as a result of which, he sustained multiple injuries including grievous injuries, on account of which he became unconscious. Accused Bhupinder lifted r injured Mehar Chand up to Jhekhri temple and then came back and informed remaining accused that Mehar Chand was lying near Jhekhri temple. In the meanwhile, accused Bhupinder received a telephonic call on his mobile phone from his house and accordingly he left for his house. Thereafter, accused Dharmender and Mahinder lifted Mehar Chand and dragged him upto village Badmal, where they left him on the road below the house of Ram Chand. Mahinder thereafter again consumed liquor and on account of intoxication fell down on the road. In the meanwhile, his wife and two servants arrived at the spot who carried Mahinder to his house with the help of another accused Dharmender.
Dharmendeer thereafter left for his house. On 03.01.2012, ::: Downloaded on - 15/12/2017 22:59:29 :::HCHP 4 at around 04.00 A.M., accused Mahinder Kumar regained consciousness and he came back to the spot where they .
had left Mehar Chand on the road. After he arrived there, he found Mehar Chand dead, he lifted the body of Mehar Chand and threw it down into a Nallah below the road to make out a case that Mehar Chand had been murdered by some one on account of his illicit relations with some lady. On 05.01.2012 at around 06.30 P.M., Mahinder Kumar equipped with a knife went into the Nallah and cut the private parts of the deceased. Dead body of Mehar Chand was found lying in the Nallah on 08.01.2012 and telephonic information in this regard was given by Ranjit Singh, the then Pradhan of Gram Panchayat, Dumehar, to the police of Police Station, Arki and on the receipt of said information ASI Amar Singh accompanied by other police personnels came to the spot.
He prepared inquest report and dead body was sent for postmortem to Civil Hospital Arki. Though preliminary postmortem examination was carried out by Medical Officer of CHC Arki but taking consideration the nature of the injuries and condition of the dead body, Medical Officer referred dead body for the purpose of forensic examination to IGMC, Shimla. The Medical Officer who conducted ::: Downloaded on - 15/12/2017 22:59:29 :::HCHP 5 postmortem of the body at Shimla issued postmortem report and gave his opinion with regard to the cause of death .
as irreversible hemorrhagic shock as a result of antemortem injuries.
3. On 03.01.2012 accused Dharmender telephonically informed Naresh of village Badmal about the beating given by him and other accused to Mehar Chand.
On 08.01.2012 i.e. the date on which the dead body of Mehar Chand was recovered, accused r Dharmender again made a telephonic call to Naresh and instructed him not to disclose to anyone the factum of accused having beaten Mehar Chand to anyone. When Mehar Chand was lifted from Bill-Ka-Dohra where he was beaten up by the accused, his shoes were left behind. After the recovery of dead body of Mehar Chand, accused Bhupinder was asked by other co-accused to immediately visit Bill-Ka-Dohra and remove shoes of Mehar Chand therefrom. Accused Bhupinder in turn telephonically asked accused Dharmender, who had gone to Kunihar, to do so. Dharmender while on his way from Kunihar to his house, lifted pair of shoes and cap of the deceased from that place and threw them into the adjacent bushes. On 09.01.2012 Gopal Singh, brother of ::: Downloaded on - 15/12/2017 22:59:29 :::HCHP 6 deceased, gave a statement under Section 154 Cr.P.C. to ASI Amar Singh wherein he stated that he suspected the .
involvement of accused Mahinder, Ratti Ram and one Pradeep for the commission of the murder of his brother. On the basis of the said statement, FIR was registered under Sections 302 and 102 read with Section 34 of Indian Penal Code. Pursuant to the registration of the FIR, investigation was carried out by ASI Amar Singh in the course of which he revisited r the place fromwhere dead body of the deceased was recovered and prepared site plan. During investigation, all the accused were arrested on the basis of suspicion.
4. While in custody, accused Dharmender made a disclosure statement to ASI Amar Singh in presence of Jitender Kumar and Rajesh Kumar to the effect that he could get recovered a pair of shoes and a cap belonging to the deceased from bushes near Bill-Ka-Dohra where he had thrown them. Accused Dharmender led ASI Amar Singh and witnesses namely Jitender Kumar and Rajesh Kumar to the said place from where a black pair of shoes and a cap of the deceased were recovered. On 12.01.2012 accused Mahinder Kumar while in police custody made a disclosure ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 7 statement to ASI Amar Singh in presence of Gopal, brother of the deceased and Mohinder Kumar, the employer of the .
deceased to the effect that he could get recovered a knife with which he had cut private parts of the deceased.
Thereafter, accused Mahinder led ASI Amar Singh as well as Gopal and Mohinder Kumar to his house situated in village Badmal fromwhere knife was recovered. On the same day, accused Mahinder also led ASI Amar Singh to the place where he had left the dead body of the deceased on the road situated below the house of Ram Chand. On 11.01.2012 accused Bhupinder led ASI Om Parkash, Jitender and Rajesh to the place known as Bill-Ka-Dohra where he and other accused had consumed liquor and after arrival of the deceased, all of them had assaulted him.
5. After completion of the investigation, challan was presented in the Court and as a prima facie case was found against the accused, accordingly, they were charged for commission of offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code, to which they pleaded not guilty and claimed trial.
6. Learned trial Court vide judgment dated 23.05.2014 acquitted the accused by holding that the ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 8 prosecution had not been able to prove its case against the accused beyond reasonable doubt. Learned trial Court also .
held that the accused deserved the benefit of doubt and accordingly, it acquitted the accused for commission of offences punishable under Sections 302, 201 read with Section 34 of Indian Penal Code.
7. Feeling aggrieved, State has filed the present appeal.
8. r We have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned trial Court.
9. Before we proceed any further, it is relevant to take note of the fact that in the present case there is no eye witness. Thus, it is a case of circumstantial evidence. Learned Additional Advocate General has culled out the following circumstances connecting the accused with the commission of the offence:-
(i) Last seen together
(ii) Recovery of dead body
(iii) Motive
(iv) Disclosure statements
No other point was urged.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP
9
10. At this stage, it is relevant to refer to certain judgments of Hon'ble Supreme Court wherein principles .
stand laid down with regard to the cases of circumstantial evidence.
11. The Hon'ble Supreme Court in Vijay Thakur Vs. State of Himachal Pradesh, (2014) 14 Supreme Court Cases 609 has held on circumstantial evidence:
"18. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 10 somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
19. In Mani v. State of Tamil Nadu, (2008) 1 .
SCR 228, this Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
r 20. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
21. Likewise, in Mustkeem alias Sirajudeen v.
State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v.::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 11
State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial .
evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under:
(SCC p.185) "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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 ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 12 show that in all human probability the act must have been done by the accused."
25. With regard to Section 27 of the .
Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
It is settled position of law that suspicion, however strong, cannot take the character of proof.
22. We, therefore, have no hesitation in allowing these appeals and setting aside the conviction and sentence of the two appellants under Section 302 read with Section 34 of the Penal Code. We order accordingly. The appellants are directed to be released from jail forthwith, if not required in any other case."
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 1312. Thus, the salient points which have been carved out by the Hon'ble Supreme Court in a case of circumstantial .
evidence, on the basis of which the guilt of the accused can be brought home are as under:
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) Thee 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."
13. Further, Hon'ble Supreme Court in Sangili alias Sanganathan Vs. State of Tamil Nadu, (2014) 10 Supreme Court Cases 264 has held:
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 14"15. To sum up what is discussed above, it is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial .
evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. In the present case, we find, in the first instance, that the appellant was roped in with suspicion that it was a case of triangular love and since he also loved PW-3, he eliminated the deceased when he found that the deceased and PW-3 are in love with each other. However, we are of the view that this motive has not been proved. The evidence of last seen is also not established. Father of the deceased only said that the deceased had received a call and after receiving that call he left the house. In his deposition, he admitted that he had not seen the appellant before and he did not recognize his voice either. Therefore, he was unable to say as to whether the phone call received was that of the appellant. Proceeding further, we find that the deceased was not seen by anybody after he left the house. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 15 appellant only on the basis of the aforesaid recoveries.
16. In Mani v. State of Tamil Nadu, (2009) 17 .
SCC 273, this Court made following pertinent observation on this very aspect:
26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
r There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
17. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 16 Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been .
postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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."
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 17 accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the .
accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
(emphasis supplied)
18. 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 appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set-aside the conviction and sentence of the appellant. The appellant be set at liberty unless required in any other case."
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 1814. Keeping into consideration the above principles so laid down by Hon'ble Supreme Court, we will now deal .
with each of the circumstance independently so as to ascertain as to whether the chain of circumstances as culled out by learned Additional Advocate General link the accused with the commission of the offences or whether the judgment of acquittal so passed by learned trial Court is sustainable on facts and law.
15. r At this stage itself, we may state that in order to prove its case prosecution in all examined 28 witnesses.
16. PW-1 Naresh Kumar, PW-4 Chaman Lal, PW-6 Mohinder Kumar Sharma, PW-7 Jia Lal, PW-9 Het Ram, PW-13 Jitender, PW-14 Rajesh Kumar, PW-15 Ranjeet Singh Pal, PW-16 Miss. Kiran Pal, PW-17 Ved Prakash and PW-18 Puran Chand, who were independent witnesses, did not support the case of the prosecution.
17. PW-2 Prem Chand who was posted as Patwari, Patwar Halqua Dumehar, had prepared Aks Tatima Ext.
PW2/A of the spot where the dead body was found.
18. PW-3 Sunita is the wife of deceased.
19. PW-5 Gopal Garg is the brother of deceased.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 1920. PW-8 Virender Kumar deposed about his meeting the deceased and Het Ram on 02.01.2012 and the factum of .
his consuming liquor with the deceased.
21. PW-10 Mahantu Devi deposed about the body of Mehar Chand lying below the house of Ram Chand.
22. PW-11 Ram Chand deposed about Mahantu Devi informing him on 08.01.2012 that a dead body was lying in his field and that when he went to his field he found body of Mehar Chand lying in the Nallah.
23. PW-12 Om Prakash is the brother of deceased.
24. PW-19 Constable Vijendeer deposed about having videographed the spot.
25. PW-20 Constable Rajinder Kumar deposed with regard to entering rapat Ext. PW20/A in the computer on 08.01.2012.
26. PW-21 HC Yash Pal Singh was posted as MHC at the relevant time in Police Station Arki and he produced on record Malkhana Register and he deposed about receiving and sending of the case property to FSL Junga.
27. PW-22 Constable Liaq Ram deposed about depositing the case property at FSL Junga.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 2028. PW-23 Dr. Manmohan deposed that he was posted at the relevant time as Medical Officer in C.H. Arki .
and that on 09.01.2012 he had conducted preliminary postmortem of the body of Mehar Chand.
29. PW-24 LC Pushpa deposed about handing over one sealed parcel with docket stated to be containing knife to the Medical Officer at IGMC, Shimla.
30. PW-25 Prem Thakur, Nodal Officer with BSNL deposed about the details of cell phone Nos. 94187-50725, 94181-34052 and 94597-93887.
31. PW-26 S.I. Amar Singh was the Investigating Officer who deposed about having receiving information of the dead body of Mehar Chand lying in a Nallah and the mode and manner in which the investigation was carried out.
32. PW-27 Dr. A.K. Sharma conducted the postmortem of the body at IGMC, Shimla and he deposed about the injuries which were found on the body of the deceased.
33. PW-28 S.I. Hari Bhagat stated that he had partly investigation in the case and he had recorded certain statements under Section 161 Cr.P.C.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 2134. Hereinafter we shall refer to the depositions of relevant witnesses in detail also while dealing with the each .
of the circumstances enumerated above.
(i) Last seen together:
35. As per the State, the factum of the accused having been last seen together with the deceased stood substantiated on record from the testimonies of PW-4, PW-8 and PW-9.
36. r A perusal of the statement of PW-4 Chaman Lal demonstrates that he was running a Tea Stall near liquor vend shop and he deposed in the Court that the accused had not visited his shop for consuming liquor nor he had any knowledge about the case. As the said witness did not corroborate the case of the prosecution, he was declared as hostile witness and was cross-examined by learned Public Prosecutor. In his cross-examination, he denied that on 02.01.2012 at around 07.00 P.M. all the three accused had come to his shop and consumed liquor there. He also denied that at around 08.30 P.M. all the accused left his shop after taking disposable glasses and packet of namkeen.
He denied that on 02.01.2012 deceased Mehar Chand had visited his shop and consumed liquor there and that Mehar ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 22 Chand and Virender had consumed liquor there and thereafter they had gone towards village Badmal.
.
37. PW-8 Virender Kumar deposed in the Court that on 02.01.2012 at around 12.30 P.M. Mehar Chand came to his house to watch cricket match which was being held in the ground adjacent to his shop. He further deposed that the match continued till 5.00 P.M. and thereafter, Mehar Chand told him that he wants to have drink. This witness further stated that he took Rs.100/- from his wife and went to a liquor vend and brought one bottle of liquor and then alongwith Mehar Chand consumed liquor in his (PW-8) house.
This witness further deposed that deceased asked him that someone had asked deceased to bring a bottle of liquor and on this PW-8 again went to the liquor vend to purchase bottle of liquor, whereas Mehar Chand remained on a path at a short distance from liquor vend. He further stated that he saw that Mehar Chand was having telephonic conversation with someone and he was telling that he had already sent person to fetch bottle of liquor from the liquor vend. He further stated that when he returned back with bottle of liquor Het Ram and Mehar Chand were talking to each other and Mehar Chand told that he wanted to have more drinks.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 23Thereafter, Het Ram and Mehar Chand went to shop of Chander Paraksh and consumed drinks there. He further .
stated that after taking liquor in the shop of Chander Parkash, he again went to liquor vend to fetch bottle of liquor so as to give it to Mehar Chand so that deceased could give the same to a person who had asked it from him. He further stated that he handed over the said bottle to Mehar Chand.
Thereafter, Mehar Chand and Het Ram left for their houses and he returned back to his house. In his cross-examination, this witness deposed that he did not go to the place at the time when dead body of Mehar Chand was recovered. He further stated that he was called by the police after 4-5 days of the recovery of dead body. He further stated that on the day when he was called, his statement was not recorded. He further deposed that after consuming two bottles of liquor, he and deceased were intoxicated. He also stated that Mehar Chand was his friend and used to call him Jija. He also stated that on the day when he visited his house to watch match of cricket, he was wearing chapple. He further stated that Mehar Chand was residing separately from his wife as he was not having good relations with his wife.
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 2438. PW-9 Het Ram deposed in the Court that deceased was known to him and on 02.01.2012 at around .
05.00 P.M., he met deceased at Bhumati. He further deposed that the deceased was alone on the road and he (PW-9) came back to his house. As this witness also did not support the case of the prosecution, accordingly he was declared as a hostile witness and was cross-examined by the State. In his cross-examination, he denied that on 02.01.2012 at 05.00 P.M., he was at the liquor vend and Virender Mohan and Mehar Chand also came there. He denied that thereafter he went to his house, whereas Virender Mohan and Mehar Chand went to their respective houses.
39. In our considered view, a perusal of the statements of above three witnesses by no stretch of imagination proves that the deceased was last seen in the company of the accused. None of the said three witnesses on whose statements reliance was placed by the State to prove the fact that the deceased was last seen with the company of the accused. None of the said witnesses has deposed in the Court or proved the fact that the deceased was last seen in the company of the accused. In fact, there is no evidence placed on record by the prosecution from which it ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 25 can be concluded beyond reasonable doubt that the deceased was last seen in the company of the accused. Therefore, in .
our considered view, the prosecution has not been able to prove this circumstance against the accused that they were last seen with the deceased.
(ii) Recovery of dead body:
40. The circumstance of recovery of dead body is sought to be proved by the State on the basis of the statements of PW-5, PW-6, PW-15 and PW-26.
41. A perusal of the statement of PW-5 Gopal Garg demonstrates that the said witness deposed in the Court that on 08.01.2012 his sister-in-law telephonically informed him that dead body of his brother Mehar Chand was lying below the house of Ram Chand in the Bunjer of Budhi Ram in Nallah at village Badmal. He further stated that on receiving the information he went to the spot and noticed that his brother was lying there dead. He also stated that he noticed injuries on the eyes of his brother and cut marks, injuries and dragging marks on the private part and knees of his brother.
He also stated that police had also come there. In his cross-
examination, this witness deposed that he reached the spot where the dead body was lying between 01.00-02.00 P.M. on ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 26 08.01.2012. He also stated that the police was already at the spot and they remained at the spot till 04.00-04.30 P.M. He .
further stated in his cross-examination that he had not disclosed to Sunita i.e. wife of the deceased on 08.01.2012 that the accused had committed the murder of Mehar Chand.
He also stated that he had not met Sunita at the place of dead body on 08.01.2012. He admitted the suggestion that in his statement Ext. PW5/A there was no reference of cut marks on the private parts of the deceased nor it was specifically mentioned that accused Mahinder gave beatings to his father and further that accused Mahinder had misbehaved with his Bhabhi and threatened to kill her with gun.
42. PW-6 Mohinder Kumar Sharma deposed in the Court that on 08.01.2012 his wife telephonically informed him that dead body of Mehar Chand was lying below the road near his house and on receiving the said information he telephonically informed about it to Pradhan Ranjeet Singh. He further deposed that thereafter he went to the spot and police also reached there.
43. A perusal of the statement of PW-15 demonstrates that the said witness deposed in the Court that he was Pradhan of Gram Panchayat Domehar since the year ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 27 2011 and on 08.01.2012 at around 12.30 P.M. he received a call from Padam Singh of village Badmal who told him that .
a dead body was lying in a Nallah below the house of Ram Chand. He further deposed that he went to the spot and found dead body in the Nallah which was of Mehar Chand. He also stated that one small bottle of liquor was also lying there. He further deposed that he informed the police telephonically and thereafter, police came there and checked the dead body. He also stated that there was one chapple near the body of the deceased and he was not sure whose it was. As this witness was declared as a hostile witness, he was cross-examined by learned Public Prosecutor. In his cross-examination, this witness denied that he had received information about the dead body from Mohinder and not Padam. He denied that he had told the police that the deceased was beaten by Mohinder, Bhupinder and Dharmender, as a result of which, deceased died.
44. PW-26 S.I. Amar Singh deposed in the Court that he remained posted as Investigating Officer at Police Station, Arki, till August, 2012. He further stated that on 08.01.2012 at around 12.15 P.M., he received a call from Ranjeet Singh Pal, Pradhan, Gram Panchayat Domehar, that a dead body ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 28 was lying at a Nallah near village Badmal. He further deposed that after entering a rapat, he left for the spot alongwith S.I. .
Probationer Raj Kumar, HC Suresh Kumar, Constable Narainder Kumar, Constable Vijender and constable Liaq Ram. He further deposed that when he reached the spot, many persons had collected there and dead body was identified to be that of Mehar Chand by his brother Om Prakash. He further stated that while he was investigating the matter, Gopal came to Police Station, Arki and recorded his statement under Section 154 Cr.P.C. He further deposed that he again went to the spot with Gopal and Om Prakash and prepared site plan Ext. PW26/A. He also deposed that on 11.01.2012 accused Dharmender while in police custody made a disclosure statement in the presence of Jitender Kumar and Rajesh that he had thrown the shoes and cap of the deceased in the bushes at Bill-Ka-Dohra near Jekhri. He also stated that on 12.01.2012 accused Mahinder also while in police custody made a disclosure statement Ext.PW5/C in the presence of Mohinder and Gopal that he had kept the knife which was used to cut the private parts of the deceased in the room where he used to sleep and he could get the same recovered.
In his cross-examination, this witness deposed that when he ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 29 reached the spot on 08.01.2012 at around 01.30 P.M., the body was not visible from the road. He also deposed that .
Gopal reached the spot on 08.01.2012 after him, however, Om Prakash was already there. He further stated that police party remained at the spot till 06.00 P.M. He also stated that on 08.01.2012 Gopal or Om Prakash did not give any statement that they suspected anyone to have had committed the crime. He also stated in his cross-examination that he did not investigate the case on the point as to what was the cause of strained relations between deceased Mehar Chand and his wife.
45. Now, a careful perusal of the statement of the said witness, only proves one fact that the dead body of the deceased was recovered from the spot i.e. in Nallah near the house of Mohinder PW-6. However, again it cannot be inferred from the statements of any of the witnesses referred to above that the deceased was killed by the accused.
Recovery of dead body from the spot ipsofacto is not a conclusion of the fact that the deceased was killed by the accused. Incidentally, it has come in the statement of the Investigating Officer itself that on the date when the dead body was recovered, brother of the deceased had not raised ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 30 any doubts or suspicion over the involvement of the accused in the death of the deceased. Therefore, in our considered .
view, the recovery of the dead body of deceased Mehar Chand is no where stands substantiated with cogent evidence to the effect that the murder of Mehar Chand was committed by the accused.
(iii) Motive:
46. As per the prosecution, the motive with the accused to do away with the life of the deceased was that they had entered into a quarrel with the deceased at a place known as Bill-Ka-Dohra and this fact stood proved from the depositions of PW-3 Sunita i.e. wife of the deceased and PW-5 Gopal Garg.
47. A perusal of the statement of PW-3 demonstrates that she deposed in the Court that on 08.03.2012 at around 06.00 P.M., her devar Gopal telephonically informed her that accused had quarrel with deceased at place Bill-Ka-Dohra and had committed his murder. She further deposed that on receiving the said information, she alongwith her mother-in-law and devar went to the spot where dead body of her husband was lying in the Bunjer of Budhi Ram at village Badmal. In her cross-
::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 31examination, she stated that they reached the spot at around 06.30 P.M. She further stated that dead body was lying in .
the Nallah and she had seen the dead body which was visible from the road. She further deposed that they stayed at the spot for about one hour and they had brought the body up on the road. She also deposed that the police recorded her statement about 15-20 days after the death of her husband. She also stated that she did not ask her devar as to how did he come to know that the accused persons had committed murder of her husband.
48. A perusal of the statement of PW-5 Gopal Garg demonstrates that he deposed in his examination-in-chief that he suspected the involvement of Pradeep and Ratti Ram in the commission of the murder of his brother. He further deposed that the police had arrested only three accused present in the Court in this case who were interrogated on 13.01.2012 when they gave identification of the spot where they had given beatings to the deceased. He also deposed that accused persons were having enmity with their family since long and earlier, accused Mahinder's father Ratti Ram had given beatings to his father and accused Mahinder had ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 32 misbehaved with his Bhabhi and attempted to cause injuries to her by means of gun.
.
49. Statement of Gopal which was recorded under Section 154 Cr.P.C. is Ext. PW5/A. This statement is recorded at 02.15 P.M. on 09.01.2012. Now, a perusal of the statement so recorded under Section 154 Cr.P.C. of Gopal demonstrates that he mentioned therein that on 08.01.2012 at around 10.30 A.M. he received a phone call from his sister-in-law Meena Devi that his elder brother Mehar Chand was found dead near the house of Ram Chand Sharma. It further finds mention in the complaint that he had stated therein that he suspected involvement of Ratti Ram, Pradeep and Mahinder in the case as they were having litigation with Mehar Chand on account of which the accused were inimical towards them.
50. When we conjointly read the statements of wife of the deceased PW-3 and that of PW-5, we find lot of discrepancies and contradictions in the same. The wife of the deceased wants us to believe that she was telephonically informed at around 06.00 P.M. by PW-5 on 08.03.2012 by Gopal that Bhupinder, Mahinder and Dharmender had killed her husband at Bill-Ka-Dohra where they had entered into a quarrel with him and that his dead body was lying in the ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 33 Bunjer of Budhi Ram at village Badmal. She also wants us to believe that they reached the spot at around 06.30 P.M. and .
brought the body up to the road. She also wants us to believe that the dead body was visible from the road.
51. When we compare the said statement of PW-3 with that of PW-5, we find that PW-5 deposed in the Court that on 08.01.2012 neither he was with PW-3 on the spot where the dead body of Mehar Chand was found nor he had disclosed on the said date to PW-3 that he suspected role of the accused in the commission of the murder of his brother.
Not only this, no other witness including police officials had corroborated the contention of the wife of the deceased that the dead body of the deceased was brought up to the road by the wife of the deceased and PW-5. In fact version of PW-3 is in stark contradiction to the statements of both Investigating Officer and PW-5. Whereas, PW-5 stated that they had left the spot between 04.00-04.30 P.M. and Investigating Officer had deposed that they had left the spot at 06.00 P.M.
52. Now, coming to the aspect of the motive, as per PW-3, the motive of accused to kill her husband was the quarrel which took place between them at Bill-Ka-Dohra. On ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 34 the other hand, as per PW-5, motive with the accused to kill his brother was that the accused persons were having enmity .
with their family since long. Further, as per him, accused Mahinder had also misbehaved with his Bhabhi and also attempted to cause injuries to her by means of a gun.
However, this has not been so corroborated by the Bhabhi i.e. PW-3 herself. Moreover, except the bald contention of PW-5 about the alleged motive which the accused had done to do away with the life of the deceased, no cogent material has been placed on record from which it can be inferred that the accused were having motive to do away with the life of the deceased. Therefore, in our considered view, the prosecution has not been able to prove this circumstance against the accused.
(iv) Disclosure statements:
53. It has come in the statement of PW-26 S.I. Amar Singh that two disclosure statements were made by the accused while in police custody. These disclosure statements are (a) disclosure statement made by accused Dharmender on 11.01.2012 in the presence of PW-26 and Jitender Kumar and Rajesh and (b) disclosure statement made by accused Mahinder Kumar on 12.01.2012 in police ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 35 custody in the presence of Mohinder and Gopal. We will deal with both these disclosure statements independently.
.
54. The first disclosure statement so made on 11.01.2012 by accused Dharmender is Ext. PW26/B. A perusal of the said statement demonstrates that it stands mentioned therein that on 11.01.2012 accused Dharmender disclosed in the presence of witnesses Jitender Kumar and Rajesh Kumar that he had hidden the shoes and cap of deceased near Bill-Ka-Deohra in shrubs and that he could have recovered the same. The witnesses to this disclosure statement are PW-13 Jitender and PW-14 Rajesh Kumar respectively. Now, a perusal of the statement of PW-13 demonstrates that neither of them have corroborated the case of the prosecution. In fact, PW-13 deposed in the Court that he was Up Pradhan of Gram Panchayat Domehar and on 11.01.2012 he had come to Arki in connection with his own work and where he received a call from Pradhan who asked him to go to Police Station, Arki and when he went to the Police Station, Arki, no proceedings were conducted in his presence nor any person was interrogated. PW-14 also deposed in the Court that on 11.01.2012 at around 01.00 P.M. he was at Bill-Ka-Dohra when the police came with ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 36 Bhupinder and Dharmender and that he had not gone to the Police Station, Arki, in the morning. Both these witnesses .
were declared as hostile witnesses and were subjected to cross-examination by learned Public Prosecutor. However, nothing cogent could be elucidated from the cross-
examination of these two witnesses to further the cause of the prosecution.
55. Now, we will refer to the second disclosure statement i.e. disclosure statement dated 12.01.2012 made by accused Ext. PW5/C. As per the Investigating Officer this disclosure statement was made by accused Mahinder Kumar in the presence of Mohinder and Gopal. Incidentally, one of the two witnesses in whose presence allegedly the said disclosure statement was made by accused Mahinder was Mohinder Kumar Sharma, who entered the witness box as PW-6, has not corroborated the case of the prosecution and he was declared as a hostile witness. He was cross-examined by learned Public Prosecutor. In his cross-examination, he denied that accused Mahinder had made any disclosure statement at Police Station, Arki, on 12.01.2012. The other witness to the said disclosure statement is Gopal Garg PW-5, ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 37 who being the brother of the deceased, is an interested witness.
.
56. Therefore, all these facts create doubt as to whether any disclosure statements were made by the above mentioned accused in the mode and manner as the prosecution wants this Court to believe. Therefore, also in our considered view, it cannot be said that the said circumstance stands proved by the prosecution beyond all reasonable doubt. r
57. From the above discussion, in our considered view, it is apparent that the prosecution was not able to complete the chain of circumstances so as to exclude every possible hypothesis except the one to be proved. It can also not be said that the chain of evidence so led by the prosecution was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and that in all human probability the act was committed by the accused. In fact, a perusal of the judgment passed by learned trial Court also demonstrates that after taking into consideration the entire evidence on record both ocular as well as documentary, learned trial Court returned the findings of acquittal in favour of the accused. In our ::: Downloaded on - 15/12/2017 22:59:30 :::HCHP 38 considered view, the findings so returned by learned trial Court are not perverse as the same are duly borne out from .
the records of the case, we concur with the findings of learned trial Court that the prosecution has not been able to prove its case against the accused beyond reasonable doubt and in such circumstances, benefit of doubt has to be given in favour of the accused.
58. In view of the above discussion, while concurring with the findings returned by learned trial Court, we dismiss this appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.
(Sanjay Karol),
Acting Chief Justice
(Ajay Mohan Goel),
December 11, 2017 Judge
(BSS)
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