Himachal Pradesh High Court
(U.P.) vs State Of Himachal Pradesh on 1 June, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE DAY OF 1st JUNE, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
ACTING CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 304 of 2018
Between:-
LAXMAN PATEL, AGED 21 YEARS,
SON OF SHRI MANNA PATEL,
RESIDENT OF HIRANANPUR,
P.S. SARNATH, DISTT BARANASI
(U.P.). ....APPELLANT
(BY MS. SHEETAL VYAS, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(SH. KAMAL KANT, DEPUTY ADVOCATE GENERAL)
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Reserved on: 18.5.2022
Date of decision: 1.6.2022.
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This appeal coming on for hearing this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
JUDGMENT
By way of instant appeal, appellant has assailed his conviction recorded by learned Sessions Judge, Kullu, H.P. vide judgment dated 7.12.2013 and consequent sentence order of ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -2- the same day, passed in Sessions Trial No. 42 of 2011 (107 of 2012), whereby, the appellant has been convicted for .
commission of offence under Section 302 IPC and sentenced to undergo imprisonment for life with payment of fine of Rs.
10,000/-. In default of payment of fine to further undergo rigorous imprisonment for six months.
2. The case as set up by prosecution was that the appellant and deceased belonged to Varanasi and were engaged in business of selling of cloth as hawkers from place to place.
On 21.2.2011, deceased along with appellant had left Varanasi for Dehradun. After staying for two days at Dehradun, appellant came to Manali and deceased went to Dharmshala, District Kangra, Himachal Pradesh. On 3.3.2011 deceased also joined appellant at Manali. They stayed together in Siyali Mahadev Temple Inn (hereinafter referred to as the Inn).
3. It was alleged against the appellant that he murdered the deceased in Room No.3 of the Inn by striking his head with a stone. Appellant thereafter cut the body of deceased into parts and disposed it off at different places. The lower part of the body was allegedly thrown in River Beas from a bridge at Bhuntar in District Kullu and the remaining upper part of the body was packed in a plastic bag and blanket etc. ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -3- and was thereafter thrown at a place "Kirad Bridge" near Jukhala within the jurisdiction of Police Station Barmana, .
District Bilaspur, H.P.
4. Initially PW-27, father of the deceased reported the matter to police at Varanasi, on the basis of which FIR Ext. PW-
27/A was registered. On 7.3.2011, the upper part of the body of deceased was recovered by the officials of Police Station Barmana and an FIR No. 53 of 2011, dated 7.3.2011 was registered. Investigation was initiated by the police. Body of deceased was sent for post-mortem to Civil Hospital, Bilaspur.
The post-mortem was conducted at Civil Hospital, Bilaspur in the first instance and for further detailed forensic investigation, the body was sent to IGMC, Shimla where again the post-
mortem on the body of the deceased was conducted and reported vide PMR No. 54 of 2011, Ext. PW-36/A. The cause of death was opined to be fracture of skull and subdural subarachnoid hemorrhage following ante-mortem head injuries.
The injuries found on head region were found to be ante-
mortem and rests of the injuries were found post-mortem.
5. On, 10.4.2011, PW-27 Ram Asre accompanied by PW-26, Ram Pujan reached Manali and reported the matter to police. FIR Ext. PW-26/A was registered. Investigation was ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -4- initiated. On 13.4.2011, the evidence collected by Police of Police Station Barmana in relation with FIR No. 53 of 2011 .
dated 7.3.2011 was handed over to the officials of Police Station, Manali, District Kullu, H.P. The belongings found on the person of deceased were identified by PW-26 Ram Pujan to be those of the deceased. The body found near Kirad Bridge on 7.3.2011 was also identified by PW-26 to be that of the deceased Sanjay Patel from the photographs preserved by police.
6. On 14.4.2011, appellant suffered a disclosure statement under Section 27 of the Indian Evidence Act and got recovered the weapon of offence i.e. Stone with which, he allegedly had killed the deceased. Police collected the abstract of Visitors Register of the Inn and found that appellant had stayed there w.e.f. 25.2.2011 to 9.3.2011. Police also found blood-stained articles in Room No.3 of the Inn and on 14.4.2011, collected samples with the help of forensic team of RFSL Gutkar, District Mandi.
7. Police also collected the evidence in the shape of statement of various shopkeepers/vendors from whom appellant, during the relevant period, had purchased articles viz. shaving blade, hexa-blade, cotton, empty plastic bag, empty ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -5- gunny bag, deodorant, chemical and sickle etc., which according to prosecution were used by the appellant to cut the .
body of deceased into pieces and to dispose it off.
8. On forensic examination of the incriminating articles, it was opined by SFL Junga that the blood on the stone recovered from the premises of the Inn and the blood collected from various articles from Room No.3 of the Inn and the radius bone of the deceased preserved after post-mortem generated the identical DNA.
9. Police further relied upon statements of employees of the Inn and Hotel Vikrant Manali. Another piece of evidence relied upon by prosecution was the statement of PW-18, Jagbir Ram, Conductor employed with HRTC. According to him the appellant had travelled in a bus from Manali to Jukhala in District Bilaspur with luggage loaded on the roof of the bus in the month of March, 2011. This witness identified the appellant to be the same person, who had travelled in the bus.
10. On completion of investigation, challan was filed.
Appellant was charged for commission of offence under Section 302 IPC. He pleaded not guilty. Prosecution examined total 35 witnesses. Appellant was examined under Section 313 Cr.P.C.
He did not lead any defence evidence. On conclusion of trial, ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -6- learned Sessions Judge, Kullu convicted and sentenced the appellant, as noticed above.
.
11. We have heard Ms. Sheetal Vyas, learned counsel for the appellant as well as Mr. Kamal Kant, learned Deputy Advocate General at length and have also gone through the record carefully.
12. The investigating agency did not find any direct evidence against the appellant. It was only on the basis of circumstantial evidence that the appellant was prosecuted. The circumstances relied upon by the prosecution against the appellant can be culled as under:-
(i) Appellant and deceased had left Varanasi for Dehradun together on 21.2.2011. Both of them stayed at Dehradun for two days and thereafter appellant came to Manali and deceased went to Dharmshala
(ii) Deceased joined the appellant at Manali on 3.3.2011
(iii) Appellant stayed in Siyali Mahadev Temple Dharmshala (the Inn) w.e.f. 25.2.2011 to 9.3.2011
(iv) Stay of deceased in the Inn with appellant.
(v)Deceased was seen in the company of appellant at Manali
(vi) appellant travelled in HRTC bus from Manali to Jukhala ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -7-
(vii) appellant had purchased various articles viz. shaving blade, hexa-blade, cotton, deodorant, .
plastic bags, sickle etc. from various
shopkeepers/vendors:
(viii) disclosure statement suffered by appellant and recovery of weapon of offence (stone):
(ix) recovery of incriminating articles with blood stains from room number 3 of the Inn:
(x) matching of DNA profile of deceased with the incriminating articles viz. blood on stone, blood found on mattress, quilt, pillow etc. recovered from room number 3 of the Inn:
13. In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 Hon'ble Supreme Court held as under:
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) 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; (3) the circumstances should be of a conclusive nature and tendency;::: Downloaded on - 02/06/2022 20:03:34 :::CIS -8-
(4) they should exclude every possible hypothesis except the one to be proved; and .
(5) 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."
14. Analyzing the evidence on record in the backdrop of aforesaid legal position, we are not inclined to concur with the findings recorded by learned Sessions Judge, Kullu, for the reasons detailed hereinafter.
15. CIRCUMSTANCES:
(i) Appellant and deceased had left Varanasi for Dehradun together on 21.2.2011. Both of them stayed at Dehradun for two days and thereafter appellant came to Manali and deceased went to Dharmshala
(ii) Deceased joined the appellant at Manali on 3.3.2011 Evidence and Analysis 15.1 PW-26, uncle of deceased, stated that deceased Sanjay Patel had left his house for Dehradun on 21.2.2011.
Appellant had also accompanied him. They remained at ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -9- Dehradun for two days. Thereafter appellant left for Manali and deceased left for Dharamshala. Deceased was in regular contact .
with him on telephone. On 3.3.2011 deceased had reached Manali and had informed that he was staying with the appellant in room number 3 of the Inn.
15.2 PW-27, father of deceased, also stated that his son and appellant had left for Dehradun on 21.2.2011 for selling cloth. On 3.3.2011 the deceased had informed that he was at Manali.
15.3 From the statements of PWs 26 and 27 it can be inferred, at the most, that deceased and appellant had left their homes together for Dehradun on 21.2.2011. Rest has been left in the realm of guess work. There is no evidence that deceased or appellant had visited Dehradun. There is nothing on record to suggest that deceased visited Dharamshala.
15.4 The investigating officer did not bother at all to collect evidence regarding mobile phone call details of PWs 26, PW- 27, deceased and the appellant. Firstly, such evidence would have provided credence to the version of PWs 26 and 27 and secondly mobile locations of the deceased and appellant, during relevant period, could have been ascertained easily.
When confronted with this omission, PW-35/ I.O responded ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -10- that he did not find it necessary to collect such evidence. This conduct of the Investigating Officer definitely is unprofessional.
.
His omission to collect best evidence cannot be brushed aside simply.
15.5 The circumstances (i) and (ii), in our considered view, cannot be said to have been proved in accordance with law.
16. (iii) Appellant stayed within Siyali Mahadev Temple Dharmshala (the Inn) w.e.f. 25.2.2011 to 9.3.2011 Evidence and Analysis 16.1 To establish this circumstance, prosecution relied upon document Ext. PW-1/A which is stated to be abstract of the visitor's register maintained at the Inn.
16.2 Document Ext. PW-1/A cannot be considered in proof of the factum of stay of appellant and the deceased in the Inn at Manali for the reasons firstly that the original of the document Ext. PW-1/A has not seen light of the day. No explanation has been rendered for such omission. Secondly, perusal of document reveals that there is no acknowledgement of the appellant in respect of entry in relation of his stay made in the visitors register. The column meant for signatures of ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -11- visitors/customers is blank. Further, there is a clear interpolation by overwriting on the date of departure. Though, .
it is mentioned as 9.3.2011 but even to the naked eye it is visible that figure 9 denoting the date has been overwritten on figure 26 and figure 3 denoting the month has been overwritten onfigure 2. Again, no explanation has been provided with respect to such overwriting. Apparently, figure 26.02.2011 has been overwritten as 09.03.2011. In these circumstances, this document cannot be said to be a proof of the fact regarding the stay of appellant in the Inn from 25.2.2011 to 9.3.2011. Even after most lenient interpretation, only appellant can be stated to have stayed in the Inn for a single day. Further, production of such type of evidence creates grave suspicion regarding veracity of prosecution case.
16.3 Prosecution has examined PWs 1, 4, 8 and 9 as prosecution witnesses, who were stated to be the employees of the Inn. Except the statements of these witnesses there is no evidence to corroborate that these witnesses were employees of the Inn.
16.4 PW-1 Des Raj stated that on 25.2.2011, he booked Room No.3 for the appellant. Appellant was alone. This witness has not been able to explain the overwriting in Ext. PW-
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -12-1/A and also the reason for blank column meant for signatures of the visitors/customers. This witness evidently had no prior .
acquaintance with appellant.
16.5 PW-4 Pratap Singh also stated that the appellant stayed in the Inn at Manali from 25.2.2011 to 9.3.2011 in Room No.3.
16.6 PW-8 Ajay Kumar stated that appellant stayed in the Inn with another boy. This witness was declared hostile by the Public Prosecutor and was cross examined. This witness did not identify the deceased to be that another boy.
16.7 Another witness PW-9 Lal Chand stated that appellant stayed in Room No.3 of aforesaid Inn along with another boy. He also did not identify the deceased to have stayed with appellant. In cross-examination on behalf of the defence, this witness admitted that as per entry Ext. PW-1/A only one person stayed in the Inn.
16.8 When the stay of appellant in the Inn w.e.f.
25.2.2011 to 9.3.2011 has been rendered doubtful keeping in view the production of suspicious document Ext. PW-1/A, it becomes more onerous on the Court to scan the evidence of these witnesses with extreme care.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -13-16.9 The appellant was already a suspect even before registration of FIR at Police Station Manali. He was brought .
from Varanasi by Uttar Pradesh Police in the company of PW-26 and PW-27. Document Ext. PW-26/B reveals that appellant was handed over to Inspector/SHO, Police Station, Manali on 11.4.2011, by in charge, Police Station Badagaon Varanasi.
This official has been examined as PW-30. As per this witness, PW-27 Ram Asre had lodged a report on 25.3.2011 at Police Station Badagaon, Varanasi, raising suspicion that the appellant might have committed murder of Sanjay Patel. FIR No. 137 of 2011 was registered under Section 364 IPC.
Thereafter, this witness along with PW-26 and PW-27 visited Manali. SHO, Police Station, Manali was contacted. The photograph of deceased Sanjay Patel was shown to SHO, Manali and after making search on internet, it was found that one dead body with same identification was found at Police Station Barmana. From this statement, it is clear that though the appellant was handed over by PW-30 to PW-35 on 11.4.2011 but PW-30 and appellant were at Manali even on 10.4.2011 in the company of PW-26 and PW-27, as the FIR was registered on the said date.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -14-16.10 At this juncture a reference to the statement of Investigating Officer/SHO, Police Station Manali, Mastan Singh .
PW-35, will not be out of place. He stated that immediately after recording of FIR on 10.4.2011, he visited Room No.3 of the Inn and locked it. He mentioned this room to be a place where the deceased was murdered. It has not been explained by this witness as to how he immediately concluded that the murder was committed in Room No.3. There is no document on record to show that police had carried any proceedings to preserve Room No.3 of the Inn on 10.4.2011 or at any time thereafter.
16.11 Now, looking at the version of PW-35 that after recording FIR, he immediately visited the Inn and locked the room gains importance. Police had the information that the body of deceased Sanjay Patel was recovered by Barmana Police. The factum of death of Sanjay Patel was confirmed.
Appellant was in their custody and the entire trail appears to have been imaged on illegal confession extracted from appellant. It will be relevant to notice that PW-4 had also stated that on 11.4.2011, police had visited room number 3 of the Inn and had collected some evidence and that the appellant had made confessional statement before police in his presence.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -15-16.12 None of the witnesses PWs 1, 4, 8 and 9 had any prior acquaintance with the appellant. It is not the case .
that appellant was brought muffled from Varanasi to Manali or that he was kept muffled after registration of FIR. He was never subjected to Test Identification Parade after his arrest.
16.13 Thus, the conduct of investigating agency is not beyond suspicion and it will not be safe to believe the testimonies of PWs 1, 4, 8 and 9 regarding stay of appellant in the Inn.
(iv) Stay of deceased in the Inn with appellant.
Evidence and Analysis 17.1 PW-4 has been examined to state that the deceased was identified by him through photograph Ext. P-3. He had seen deceased as the deceased had visited the office of the Inn at Manali with appellant for receipt. In cross-examination, when confronted with his previous statement made to the police, he stated that he had not disclosed to the police about the factum of deceased having accompanied appellant to the office for obtaining receipt. He did not even remember the date when he identified the deceased from photograph.
17.2 PW-8 Ajay Kumar and PW-9 Lal Chand stated that appellant stayed in the Inn with another boy. However, none of ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -16- these witnesses identified the deceased to be that another boy who had stayed with appellant in the Inn.
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17.3 As per PW-1 appellant had stayed alone in the Inn.
17.4 Had the deceased stayed in the Inn with appellant, how could it be that PWs 8 and 9 were able to identify the appellant but not the deceased. Similarly, if deceased stayed in the Inn with appellant, how it could escape the notice of PW-1.
17.5 In the given circumstances of the case, it will not be safe to rely upon statement of PW-4 as he had made substantial improvement while deposing before the court to his earlier version given to the Police. Had this witness seen deceased, he definitely would have disclosed this fact to the Police during investigation and that too in the first instance. As per this witness, Police had associated him on 11.4.2011 itself.
17.6 Thus, it cannot be said to have been proved beyond doubt that deceased had stayed with appellant in the Inn.
(v) Deceased was seen in the company of
appellant at Manali.
Evidence and Analysis
18.1 Prosecution examined PW-24 Amit Kumar, a waiter
of hotel Vikrant at Manali. According to this witness on
2.3.2011, appellant came to hotel Vikrant at about 7.00 p.m. ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -17- for inquiry for a room for the stay of his friend and his wife. At about 9.00 p.m. appellant along with his friend and his wife .
visited the hotel and stayed in Room No. 104. Next morning, appellant and his friend left the hotel at 11.00 a.m. On 19.4.2011, he was called in Police Station, Manali and he then identified the appellant. Police also showed him photographs of the deceased and PW-24 identified the deceased as the same friend of appellant, who had stayed with him on the night of 2.3.2011 in hotel Vikrant.
18.2 PW-26 and PW-27 have been very categoric that deceased had reached Manali on 3.3.2011. If deceased reached Manali on 3.3.2011, how could he be seen by PW-24 at Manali on the night of 2.3.2011 that too with his wife, who never existed.
18.3 Viewed from another perspective, it can again be seen that appellant was not subjected to TIP before this witness. It was not a case where appellant was already known to PW-24.
18.4 Similarly there is no evidence that PW-24 was shown the photograph of the deceased along with some other photographs to ascertain veracity.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -18-18.5 No record from Hotel Vikrant, Manali was produced in evidence to corroborate the version of PW-24.
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18.6 This circumstance also does not stand proved.
19. (vi) appellant travelled in HRTC bus from Manali to Jukhala Evidence and Analysis 19.1 PW-18 Jagbir Sharma stated that he was working as bus conductor with Himachal Road Transport Corporation (foe short, "HRTC"). In the month of March 2011, he was deputed on Bus number HP-03B-6037 en-route from Manali to Shimla.
On 9.3.2011 appellant had boarded the bus from Manali along with his baggage loaded on the roof and had got down at Jukhala with the baggage. However, the date of incident was corrected as 6.3.2011 by the witness while answering the questions during cross-examination. He had disclosed these facts to the Police when he was called by officials of Police Station Manali for investigation.
19.2 As regards the statement of PW-18, Conductor of HRTC Bus, it again remains unexplained that how the Investigating Officer came to know about the fact that the appellant had carried the body of deceased in bus from Manali to Jukhala. It will not be inapt to assume that scores of buses ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -19- leave Manali daily to different destinations. The Investigating Officer has not made even a whisper as to how he came to know .
about such an important fact. PW-18 states that he was called at Police Station by the police. Meaning thereby, that PW-18 himself had no idea about the conduct of appellant or the contents of baggage carried by him. This part of evidence is also shrouded with mystery.
19.3 There was no such occasion for PW-18 to have remembered one of his numerous customers/passengers and especially the date on which appellant had travelled in his bus.
Appellant was not previously known to PW-18 and admittedly there was no TIP in this case also.
20. (vii) appellant had purchased various articles viz.
shaving blade, hexa-blade, cotton, deodorant, plastic bags, sickle etc. from various shopkeepers/vendors:
Evidence and Analysis 20.1 According to prosecution case, the appellant had purchased various incriminating articles from different shops/ vendors. Shaving blade was purchased from PW-2 Ishwar Dass, hexa-blade from PW-3 Surender Kumar, cotton from PW-11 ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -20- Sanjeev Kumar, two plastic bags from PW-12 Chandan Ahuja, scent from PW-13 Rakesh Awasthi and sickle from PW-14 Tule .
Ram. All these witnesses stated that after some days appellant was brought by the police to their respective shops for identification and they had accordingly identified him.
20.2 The fact remains that none of the articles which the appellant had allegedly purchased from different shops were either recovered or identified. Hence, to say that any of such article was used in commission of offence or for any other purpose linked to the offence will be nothing short of surmise.
Prosecution has not been able to prove on record the specific use of such articles by the appellant.
20.3 The identification of the appellant by aforesaid witnesses again has to be seen with circumspection for the sole reason that the mode and manner adopted by police in getting the appellant identified was not beyond shadow of doubt. None of these witnesses were known to appellant as appellant was not resident of Manali. No special reason has been assigned by any of the witnesses to have identified one of their several customers who had visited their respective shops only once.
Manali or Kullu are towns with considerable population and more importantly both the places are regularly frequented by ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -21- huge number of tourists. Had it been some isolated place or remote village, where the stranger customer was a rare .
commodity, the matter would have been different.
21. (viii) disclosure statement suffered by appellant and recovery of weapon of offence (stone):
Evidence and Analysis 21.1 The disclosure statement of appellant has been placed on record as Ext. PW-1/C. The statement is stated to have been made on 14.4.2011 in presence of PW-1 Des Raj and PW-8 Ajay Kumar. PW-1 stated that appellant had made such statement to police in the temple of Siyali Mahadev, Manali where he was brought after few days after the day when Police had taken abstract of visitor register of the Inn in possession.
PW-8 however did not state anything about Ext. PW-1/C. Even the learned Public Prosecutor did not confront him with the factum of making of disclosure statement by appellant. In reply to a question put to PW-8 in cross examination in defence he stated that he did not remember appellant having made any such statement.PW-34 ASI Daya Ram stated that appellant made disclosure statement Ext. PW-1/C on 14.4.2011 but he does not mention the place of making such statement.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -22-21.2 Regarding recovery of weapon of offence PW-1 Des Raj stated that on the demarcation of appellant stone was .
recovered which he had hidden near the bathroom/toilet of the Inn.PW-8 Ajay Kumar again remained silent about this aspect in his examination in chief. In cross examination by learned Public Prosecutor, he stated that the appellant had also given demarcation of recovery of stone.
21.3 The place where appellant made statement Ext. PW-
1/A is not known. From the statement of PW-1 it appears to have been made in the Siyali Mahadev Temple complex. PW-8 and PW-34 have remained silent in this respect. However, recovery memo Ext.PW-1/D recites that the appellant, immediately after reaching the place of incidence, alighted from the vehicle and lead the police party and the witnesses to the place of recovery. In this manner, prosecution has not been able to place on record consistent evidence. PW-1 stated that statement was made by appellant at the place of incidence, whereas no such fact is recorded either in Ext PW-1/C or Ext.
PW-1/D, rather Ext PW-1/D records that appellant immediately after alighting from the vehicle lead the police party to place of recovery. It means that statement was not made on spot. Thus, ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -23- there is complete uncertainty as to when and where the statement was made.
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21.4 It was not the case that the place of recovery of stone was such which was inaccessible to others and was known to the appellant only. In this view of this matter as also other evidence available on record these circumstances cannot be said to be proved beyond reasonable doubts.
22. (ix) recovery of incriminating articles with blood stains from room number 3 of the INN:
Evidence and Analysis 22.1 PW-35 stated that immediately after recording of FIR, he visited Siyali Mahadev Temple and locked room number
3. PW-4 stated that it was on 11.4.2011 that police had taken in possession incriminating articles from room number 3.
Whereas, as per PW-9 such proceedings were undertaken on 14.4.2011 22.2 Firstly, there is no document on record to prove the preservation of room number 3 of Siyali Mahadev temple by police, as stated by PW-35. Secondly there is no consistency in evidence as to when the incriminating evidence was collected from said room and lastly, it is not understandable that police could get such incriminating evidence from the room after more ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -24- than one month of its alleged vacation by appellant. The room was part of an Inn and it was not the case that none else used .
the room after 9.3.2011.
22.3 We cannot ignore yet another fact that the FIR was registered on 10.4.2011. PW-35 had visited Dharmshala and locked the Room on the same day, no effort was made to collect the evidence from such room till 14.4.2011, when the police had no chance to manipulate the evidence. It is also not understandable that room in a Dharmshala, which was left by the appellant on 9.3.2011 was not cleaned for more than a month and the blood stains were still available not only on the floor and walls but on the quilt, pillow and mattress etc. Coming to the story propounded by prosecution, in case the deceased was murdered in the suggested manner in the room at Dharmshala and then his body was cut into pieces by using sickle and hexa-blade etc. one can imagine the quantum of blood that would have appeared. In such situation, it would not have been in bits and parts on various articles as alleged.
22.4 In case PW-35 had reached room number 3 of the Inn on 10.4.2011 itself, why the material was not collected from said room immediately again remains unanswered.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -25-22.5 This circumstance also fails the test of requisite proof.
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23. (x) matching of DNA profile of deceased with the incriminating articles viz. blood on stone, blood found on mattress, quilt, pillow etc. recovered from room number 3 of the Inn:
Evidence and Analysis 23.1 The circumstance which weighed with learned Sessions Judge was that the blood stains were found on the stone recovered from the premises of the Inn and the blood-
stained articles recovered from Room No.3 thereof generated the same DNA as that of the deceased. At the first sight, this circumstance appears to nail the appellant but again on deep exploration into the material on record mystery shrouds even this circumstances.
23.2 PW-36 Dr. A. K. Sharma had conducted post-
mortem on the body of deceased at IGMC, Shimla. He stated on oath while appearing as PW-36 that two blood vials of deceased along with sample were sealed in a cloth parcel and handed over to the police. To similar effect there is a mention in PMR Ext. PW-36/A that two different blood vials were handed over to the police after post-mortem. It is evident from ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -26- Ext. PW-5/A i.e. an abstract of Malkhana register of Police Station, Barmana, wherein vide entry No. 1013/27 dated .
13.3.2011 various articles were deposited in Malkhana, which includes two vials containing blood of the deceased, sealed with seal DKG. This document further reveals that one vial of blood was sent for scientific analysis to RSFL, Gutkar on 15.3.2011.
The report Ext. P-27 prepared by RFSL Gutkar also affirms the fact that one vial containing blood was received from Police Station, Barmana in relation with FIR No. 53 of 2011 vide RC No. 50/11 dated 15.3.2011. To track the second vial, reference can be made to document Ext. PW-5/A, which is a memo prepared on 13.4.2011, whereby the proceedings for handing over of evidence collected by Police Station, Barmana to Police Station Manali were recorded. This document includes the handing over of one vial of blood with two seals of DKG. Thus, on 13.4.2011, the second vial containing blood of deceased came in the hands of officials of Police Station, Manali. The seal DKG also comes into the possession of the police of Police Station, Manali and the same was deposited in "Malkhana" of Police Station, Manali on 18.4.2011 by PSI, Sunil Kumar. PSI Sunil Kumar has not been examined as a witness. There is no connecting evidence as to how sample seal came into ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -27- possession of said police official and why it was not deposited along with other case property on 13.4.2011 itself. An entry in .
Malkhana register Ext. PW-29/A reveals that on 13.4.2011, one cloth parcel containing vial sealed with two seals of DKG was also deposited along with sample seal 'M', as noted above, the sample seal of seal DKG was deposited at much later date i.e. 18.4.2011. Prosecution has also shown that vide road certificate Ext. PW-29/B the cloth parcel containing blood vial with two seals of DKG was sent to FSL, Junga for scientific analysis along with other case property. Perusal of report prepared by SFL Junga, Ext. PX, revealed that the blood found in the above noted vial had yielded highly degraded DNA, making examination impossible. In these circumstances, the tampering with case property cannot be ruled out. Cloth parcel with two seals DKG deposited in Malkhana on 13.4.2011, cannot be treated as an absolute proof that the blood as preserved and sealed by PW-36 and handed over to the police was in the same position. There could be easy manipulation as the sample seal was in the hands of the police.
23.3 In light of above material, this circumstance again cannot be said to carrying requisite standard of proof.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -28-24. The cardinal principle of criminal jurisprudence has remained impassive. The prosecution has to prove its case .
beyond all reasonable doubts. Appearance of serious doubt in the prosecution case only helps the case of accused. More serious the offence, more arduous is the duty cast upon prosecution to discharge its burden strictly in accordance with law. In absence of direct evidence, circumstances relied upon by the prosecution have to satisfy the same standard of proof i.e. beyond all reasonable doubts. Once this barrier is successfully crossed, it is to be shown that all the circumstances form a complete chain of facts suggesting only one hypothesis i.e. the guilt of the accused.
25. We are governed by rule of law. No conviction can be recorded on assumption. Prosecution has to discharge its burden by proving the guilt of accused beyond all reasonable doubts and for such purposes, it has to prove the fact in issue on the basis of relevant and admissible evidence. Merely, because police gets knowledge about the culprit either from illegal confession extracted from him or from any other source will not absolve the prosecution from its duty to prove the guilt of the accused in accordance with law.
::: Downloaded on - 02/06/2022 20:03:34 :::CIS -29-26. The facts considered hereinabove have escaped the attention of learned Sessions Judge, which have led to the .
conviction of appellant on the material which in our considered opinion is not sufficient to hold him guilty.
27. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the appellant.
28. In light of above discussion, there is merit in the appeal and the same is accordingly allowed. The judgment dated 7.12.2013 and consequent sentence order of the same day, passed in Sessions Trial No. 42 of 2011 (107 of 2012), whereby, the appellant has been convicted and sentenced for commission of offence under Section 302 IPC is set aside. The appellant is acquitted of all charges and is directed to be set free forth with, if not required in any other case.
29. In view of the provisions of Section 437-A of Code of Criminal Procedure, 1973, appellant is directed to furnish his personal bonds in the sum of Rs.25,000/- with one surety in the like amount, before the learned Registrar (Judicial) of this Court, which shall be effective for the period of six months with ::: Downloaded on - 02/06/2022 20:03:34 :::CIS -30- stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of leave, the appellant, on .
receipt of notice thereof, shall appear before the Supreme Court.
(Sabina)
Acting Chief Justice
1st June, 2022
(kck)
r to (Satyen Vaidya)
Judge
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