Himachal Pradesh High Court
Rajender Kumar vs State Of Himachal Pradesh on 3 April, 2017
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 596 of 2015
.
Judgment reserved on:27.03.2017
Date of Decision: April 3 , 2017
Rajender Kumar ...Appellant.
of
Versus
State of Himachal Pradesh ...Respondent.
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1Yes.
For the Appellant: Mr. N.S. Chandel, Advocate, for the
appellant.
For the Respondent: Mr. V.S. Chauhan, Additional
Advocate General with M/s Vikram
Thakur, Puneet Rajta, Deputy
Advocate Generals, for the
respondent-State.
Sanjay Karol, J.
Convict/accused has assailed the judgment dated 30.09.2015/03.10.2015, passed by the Sessions Judge, Hamirpur, H.P., in Sessions Trial No.02 of 2015, titled as State of H.P. Versus Rajinder Kumar, whereby he 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 2stands convicted and sentenced to undergo imprisonment for life and pay fine of `10,000/- for having committed an commission of offence punishable under .
the provisions of Section 302 of the Indian Penal Code and in default thereof, to further undergo simple imprisonment for three months.
2. It is the case of prosecution that on of 04.06.2014, police received information of death of a lady by the name of Rajni, in village Ghartheri Brahamna, Post Office, rt Salasi, Tehsil and District Hamirpur.
Immediately, Investigating Officer SI Mahinder Singh (PW-15) visited the spot, where he recorded statement (Ex.PW.14/A) of Smt. Chetna Devi (PW-14), to the effect that accused Rajinder Kumar had murdered his wife by giving multiple blows with a rod. Necessary investigation was conducted on the spot, by inter alia, preparing inquest report (Ex.PW.15/A); taking into possession the dead body; collecting samples of blood soiled earth. Also accused was arrested. Postmortem of the dead body was conducted by Dr.Resham Singh (PW.16). Samples of blood and soil, so collected in the presence of independent witnesses Naresh Kuamr (PW.11) and Rumel ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 3 Singh (PW.2) were sent for chemical analysis and report of the Chemical Analyst (Ex.PW.15/R), taken on record.
Police recovered blood stained shirt worn by the accused, .
which also was sent for chemical analysis and report whereof (Ex.PW.15/R) taken on record.
3. Investigation revealed that Rajinder Kumar (accused) who was married to Rajni (deceased), had of been subjecting her to cruelty for last more than ten years. On the fateful day he gave blows to his wife with the rod which resulted into her death. Also the incident rt came to be partially witnessed by the family members, namely, Rumel Singh (PW.2), Vikas Kumar (PW.3) and Ravinder (not examined). Further on 06.06.2014, while in police custody, accused made a disclosure statement (Ex.PW.9/B), to the effect that he could get recovered the weapon of offence (Ex.P-4) from the place he had concealed it. Such fact came to be revealed in the presence of independent witnesses Arun Kumar (PW.9) and Satish Kumar (PW.10). Pursuant thereto, accused took the police to the said place and in the presence of the very same witnesses, got it recovered. Since stains of blood were found thereupon, it was also sent for ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 4 chemical analysis and report (Ex. PW.15/R) taken on record. Such proceedings of discovery of fact i.e. recovery of weapon of offence was videographed and CD .
(Ex.PW.10/B) taken on record. Scientific evidence did establish the deceased to have sustained injuries with the weapon of offence (Ex.P-4), duly corroborated by the postmortem report (Ex.PW.16/A). Further report of the of chemical analyst, established signs of blood to have been found not only on the weapon of offence, but also on the shirt (Ex.P-2) worn by the accused.
rt Hence prima facie finding the accused to be involved in the crime, challan was presented in the Court for trial.
4. The accused was charged for having caused death of his wife Smt.Rajni, an offence punishable under the provisions of Section 302 of the IPC, with a knife/dagger, of a length of 17 inches, a prohibited arm and as such, committed an offence punishable under the provisions of Section 25(1-A) of Arms Act, 1959, to which he did not plead guilty and claimed trial.
5. For establishing the aforesaid offences, in all, prosecution examined as many as sixteen witnesses.
Statement of the accused under Section 313 of the Code ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 5 of Criminal Procedure was also recorded, in which he took the following defence/alibi:-
"Witnesses have deposed against me falsely.
.
On my return after dumping cow-dung in the field I saw my wife in an injured state but none told me who had killed my wife."
For probablizing the same, he got examined his co-
villager Vreet Singh (DW.1).
of
6. It is not a case of circumstantial evidence.
According to the prosecution, incident came to be rt witnessed by Smt. Chetna (PW.14), who immediately called for help, when firstly Akshay Kumar (PW.1) reached the spot. Thereafter, she again called and Rumel Singh (PW.2), Vikas Kumar (PW.3) and Ravinder (not examined) came. It is only thereafter that the matter came to be reported to the police. It is a matter of record that none of these witnesses have supported the prosecution. They were declared hostile and cross-
examined by the Public Prosecutor. It is also a matter of record that witnesses to the recovery of incriminating articles i.e. blood soiled earth; shirt as also the disclosure statement leading to the recovery of weapon of offence, including such fact, have also not supported the ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 6 prosecution. They are Rumel Singh (PW.2), Naresh Kumar (PW.11), Arun Kumar (PW.9) and Satish Kumar (PW.10).
.
7. Despite these witnesses not having supported the prosecution, trial Court convicted the accused on both counts, for the following reason(s): (i) independent witnesses, being close relatives, chose to side with the of accused and as such not deposed in favour of the prosecution; (ii) viewing of CD (Ex.PW.10/B) as also rt photographs (Ex.PW.10/A-1 to Ex.PW.10/A-15), establish the accused to have taken the police to the spot of concealment of weapon of offence (Ex.P-4) wherefrom he got it recovered. As such, circumstance of discovery of fact came to be established on record; (iii) failure on the part of accused to have explained traces of human blood on the weapon of offence (Ex.P-4); (iv) failure on the part of accused to have explained presence of blood stains on his shirt, matching with that of the blood group of the deceased; (v) failure on the part of the accused to have probablized his defence by not inquiring about the presence of the person from whom, or the manner in which his wife sustained serious injuries; (vi) failure on ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 7 the part of the accused to have probablized his defence of alibi i.e. being present in the fields near the house of Vreet Singh (DW.1); (vii) presence of the accused on the .
spot of crime; (viii) mere absence of motive of crime itself would not render the prosecution story to be doubtful, much less false; (ix) description of weapon of offence, be it rod or sword would not shatter the of prosecution case, more so, in view of corroborative evidence in the nature of photographs and CD prepared by the police; (x) failure on the part of prosecution to rt have not established the weapon of offence to be used by the accused, by getting prints of his fingers and hands matched thereupon, is a mere irregularity and failure on the part of the investigating agency would not itself render the prosecution case to be false; and (xi) the wound sustained by the victim i.e. of width of 1 cm with a weapon 4 inches of width, is dependent upon the resultant force used by the assailant. As such, weapon was used by the accused in committing the crime.
8. Reading of the impugned judgment reveals the trial Court convicted the accused on the basis of circumstantial evidence and that being: (a) disclosure ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 8 statement resulting into discovery of fact i.e. weapon of offence; (b) corroborative evidence, scientific in nature, establishing use of weapon of offence and signs of blood .
found on the shirt worn by the accused; and (c) presence of the accused on the spot.
9. Having heard Mr. N.S. Chandel, learned Counsel on behalf of the appellant as also Mr. V.S. of Chauhan, learned Additional Advocate General, assisted by M/s Vikram Thakur & Puneet Rajta, learned Deputy Advocate Generals, on behalf of the State, as also rt minutely examined the testimonies of witnesses and other documentary evidence, so placed on record by the prosecution, Court is of the considered view that trial Court committed grave illegality in convicting the accused, for the reasons discussed hereinafter.
10. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held as under:
"...Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 9 limitation should be placed upon that power unless it be found expressly stated in the Code". ...
(Emphasis supplied) [See: Aher Raja Khima Versus State of Surashtra, AIR .
1956 SC 217].
11. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to of appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of
12. rt reasonable doubt has to be given to the accused.
Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences.
13. Hon'ble Supreme Court of India in Shivaji Sahabrao Bobade (supra) has held that:-
"6. Even at this stage we may remind ourselves of a necessary social perspectives in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 10 runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable .
doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author [Glanville Williams in 'Proof of Guilt'] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, rt eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that " a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ... ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago."
[Emphasis supplied]
14. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon'ble the Supreme Court of India held that:-
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 11"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its .
commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they of form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. ................."
10. .........In Bhagat Ram v. State of Punjab [AIR rt 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
(Emphasis supplied)
15. Also it is a settled proposition of law that when there is no direct evidence of crime, guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with crime. All the links in the chain of circumstances, must be established beyond reasonable doubt, and the proved circumstances should be ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 12 consistent only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence.
While appreciating the circumstantial evidence, Court .
must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence.
[See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus of State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172;
rt Trimukh Maroti Kiran versus State of Maharashtra, (2006) 10 SCC 681; Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; Ashok Kumar Chatterjee vs. State of M.P., 1989 Supp. (1) SCC 560;
Balwinder Singh vs. State of Punjab, (1987) 1 SCC 1;
State of U.P. vs. Sukhbasi, 1985 Supp. SCC 79; Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116; Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Hukam Singh vs. State of Rajasthan, (1977) 2 SCC 99; and Eradu vs. State of Hyderabad, AIR 1956 SC 316].
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 1316. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, Hon'ble the Supreme Court of India held that:-
"13. Suspicion, however grave it may be, cannot .
take the place of proof, and there is a large difference between something that "may be"
proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a of duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and unimpeachable evidence produced by the rt prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be"
true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Vide: Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109: AIR 2011 SC 1017; and Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777].
14. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808: AIR 1973 SC 2773, this Court observed as under:
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 14"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view .
which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""
17. Relying upon its earlier decision in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 of SC 343, Hon'ble the Supreme Court of India in Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, rt again reiterated that:-
"15. .... ... Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence."
18. In Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116, Hon'ble the Supreme Court of India held that:-
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 15"Moreover the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity .
or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court." ...
... ... "There is a vital difference between an incomplete chain of circumstances and a of circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court."
19. rt Accused categorically denies his involvement in the alleged crime. It is his alibi that he had gone to the fields to throw the cow-dung and only on return, found his wife lying in an injured condition. None told him as to who had killed her. We find from the statement of Vreet Singh (DW.1) such defence and plea of alibi to have been probablized and established. This witness, at about 7.30-7.45 a.m. noticed the accused throw cow-
dung in the fields. He is a shop keeper and in no manner associated with the accused, save and except that being an acquaintance.
20. Be that as it may, from the daily diary report (Ex.PW.4/A) it is also evident that initially Chetna Devi ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 16 had only informed the police, on telephone, that Rajni had been murdered with a knife. Significantly information of the assailant was not disclosed. Also .
presence or involvement of the accused was not disclosed.
21. It is the case of prosecution that when SI Mahinder Singh (PW.15) reached the spot, Chetna Devi of (PW.14) got recorded her statement to the effect that the accused had been subjecting his wife, i.e. the deceased, to physical cruelty. On 04.06.2014, at about 7.45 a.m. rt she noticed the accused abuse and give beatings to the deceased. One blow with an iron rod was given on the stomach and another on the back. This resulted in the bending of the iron rod i.e. the weapon of offence. Upon her raising alarm, her son Akshay Kumar (PW.1) reached and the accused ran away threatening to kill them. She immediately contacted the police. She further raised alarm which led Rumel Singh (PW.2) and his son Vikas Kumar (PW.3) reach the spot. Not only Rajni was not saying anything but accused was not allowing anybody to come near her. Though ambulance had come, but Rajni had expired on the spot.
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 1722. Here her statement is self contradictory. If accused had run away then where was the question of his not allowing anyone to come near the deceased.
.
What is the nature of threats is not explained.
23. Be that as it may, in Court, we find this witness not to have supported the prosecution. Despite being cross-examined, nothing fruitful could be elicited of from her testimony. While admitting her signatures on statement (PW.14/A), she has explained that the document(s) came to be signed at the instance of the rt police. She is categorical of not having noticed the incident, much less accused having abused or given blows with an iron rod to the deceased. From her statement, it is evident that accused was married to the deceased for quite some time. He had three children and the elder one being 11 years of age. Her relationship with the accused is not cordial. She has explained that though accused resides in the neighbourhood but his house is not visible from her house. She could not see the spot of crime from her house. She is categorical that the accused arrived at the spot after sometime and inquired about the cause of injuries which the deceased ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 18 had sustained. She is categorical that thereafter deceased tried to shake and awake the deceased by taking her in his lap. Hence, the star witness has not .
supported the prosecution.
24. At this juncture, we may only observe that all the other independent witnesses i.e. Akshay Kumar (PW.1), Rumel Singh (PW.2) and Vikas Kumar (PW.3), who of also reached the spot, have not supported the prosecution. In fact, in one voice, they probablize the defence of the accused of not being present on the spot rt and having reached only after they noticed the deceased lying in an injured condition.
25. In Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 the apex Court has held that evidence of a hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held that:
"22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 19 declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given .
by hostile witness may contain elements of truth.
23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view of has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this Court speaking rt through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out."
[Emphasis supplied]
26. Further in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327 the Court held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. It further held that:
"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 20 the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act .
enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party of with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. rt The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624
(b) Prithi v. State of Haryana (2010) 8 SCC 536
(c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"
[Emphasis supplied] ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 21
27. In Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 the Court held that seizure/recovery witnesses though turning hostile, but admitting their .
signatures/thumb impressions on recovery memo, could be relied on by prosecution and that:
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution of chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record rt altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide:
Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 22 v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v.
State of U.P., AIR 2006 SC 951; Sarvesh Narain .
Shukla v. Daroga Singh & Ors., AIR 2008 SC 320;
and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in of law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC rt
36)"
[Emphasis supplied]
28. Thus the only thing which needs to be considered is as to whether that part of the testimony of the hostile witness, which inspires confidence, can be considered or not. In the given facts and circumstances, we do not find the witnesses, even when cross examined, to have deposed anything in favour of the prosecution.
Their signatures on several documents stand explained by them. Only on the asking of the police they appended the same.
29. Assuming, as has been observed by the trial Court, that family members decided to side with the ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 23 accused and not depose truthfully, still in our considered view, we do not find the prosecution to have established its case, beyond reasonable doubt, through the .
testimonies of police officials and other witnesses.
30. SI Mahinder Singh admits to have noticed only Chetna sitting near the dead body of the deceased. He has not ruled out the possibility of either her involvement of or for that matter anyone else in the crime. He purely relied upon on her statement and conducted the investigation.
rt Why children of the deceased were not associated remains unexplained. He could have also associated parents of the deceased to establish the nature of matrimonial relationship. There is no past history of violence. Also no local person from the community/village was associated. Undisputedly Chetna Devi was not in the best of the terms with the accused.
31. Significantly, there is discrepancy with regard to the use of weapon of offence and serious doubt with regard to its recovery, pursuant to the alleged disclosure statement.
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 2432. Dr. Resham Singh (PW-16) who conducted the post mortem of the deceased, found following injuries on the dead body:
.
"1) Stab wound 1.5 cm x 0.5 cm x 8 cm over the left side of chest 3 cm from the nipple, clotted blood positive, margins clean and everted.
2) Stab wound 1.5 cm x 0.5 cm x 8 cm over the left side of chest 2 cm from the injury No. 1, clotted blood positive, margins clean cut and of everted, red in colour.
3) Stab would 1.5 cm x 1 cm x 6 cm over the left side of the chest 2 cm from the injury No. 2, rt clotted blood was positive, margins clean cut, everted and red in colour.
4) Stab wound .5 cm x .5 cm x 3 cm over the left side of chest 5 cm from the nipple laterly, clotted blood positive, margins clean cut and everted red in colour.
5) Stab would 4 cm x 2 cm x 3 cm over the T11 to T12 vertebra posteriorly, clotted blood around the wound positive, margins clean and everted and red in colour."
Also pericardium and heart were punctured which, as per opinion of the Expert, contributed to hemorrhagic shock and cause of death. Though the Doctor was of the view that injuries could have been caused with the weapon of offence (Ext. P-4), but in cross examination expressed ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 25 doubt by stating that the width of the weapon qua injury No. (4) should have been 1 c.m. Chetna Devi (PW-14) is categorical that the blow was given on the stomach. If .
that were so then how could the lung be puncutured from the front side.
33. On the question of nature of weapon of offence itself, there is material contradiction. This issue, of we are examining, notwithstanding the fact that independent witnesses to its recovery, namely Arun Kumar (PW-9) and Satish Kumar (PW-10), have not rt supported the prosecution. In the Daily Diary entry (Ext.
PW-4/A), the weapon of offence is recorded as "chaaku"
(knife). In the statement (Ext. PW-14/A) of Chetna Devi, so recorded under Section 154 Cr.P.C., it is recorded as an 'iron rod', which got twisted (bent) as a result of used force, whereas what police recovered and got scientifically examined is a 'sword' (Ext. PW-15/R).
34. It is a matter of record that weapon of offence was not found on the spot. Allegedly it was concealed by the accused who pursuant to disclosure statement (Ext.
PW-9/B), got it recovered. Witnesses to the alleged disclosure statement have not supported the prosecution ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 26 and despite their extensive cross examination, nothing fruitful could be elicited from their testimony. Be that as it may, these independent witnesses admit that it was .
the police who led them to the place of recovery of the said weapon. In our considered view, trial Court got swayed in assuming the prosecution case to be true, only, with the watching of the video (CD) so recorded by of the police. In this regard, observations of the Court below, even on facts are incorrect. It was the police who led the witness to the place from where the weapon of rt offence was recovered and not the other way round. In view of the independent witnesses having turned hostile, Court below, should have looked into some more reliable piece of evidence, corroborating such fact. The video was not taken by a professional photographer. Also no respectable persons from the society were associated.
There is serious doubt about the nature of weapon of offence used and its recovery, in the manner in which the police wants the Court to believe. Hence, it cannot be said to be a fact discovered, in accordance with law. Also we find the court below to have presupposed the weapon of crime, which assumption came from the fact that it ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 27 contained blood. But then it lost sight of the fact that blood so found was insufficient for further serological examination. It is nobody's case that evidence stood .
tampered by the accused. Moreover, if stains of blood were insufficient for scientific evidence, at least, finger prints thereupon, could have got matched with that of the accused. No such attempt was made by the police.
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35. Jurisprudentially, Court erred in observing that it was for the accused to have established as to how blood stains were found on the shirt worn by him. It be rt only observed that, in that regard, there is no scientific evidence on record. Any which way, Smt. Chetna explains in her uncontroverted and unrebutted testimony, by stating that after reaching the spot accused took the deceased on his lap and tried to wake her by shaking.
36. There was no basis for the Court below to have formed an opinion that the witnesses being close relatives were siding with the accused. In fact, from the testimony of Chetna (PW-14), it is clear that they did not enjoy best of relationship. Also it is not the case of prosecution that witnesses were won over by the ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 28 accused or that during trial, accused intimidated or threatened them.
37. It is a settled principle of law that absence of .
motive alone would not render the prosecution story to be doubtful. But then, prosecution has to stand on its own legs and establish its case, beyond reasonable doubt.
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38. In the instant case, suspicion alone, as has been discussed herein supra, cannot be a reason to hold the accusedrt guilty, which in the instant case, erroneously, has been so done, by the trial Court. There is no evidence that accused alone used to reside in the house. Also there is no evidence that the children were not at home. Also there is no evidence that none else, except the accused, had access to his house or the deceased. Also possibility of involvement of others has not been ruled out. It stands clarified that we have considered the case of the prosecution from both aspects. There is neither any direct nor any circumstantial evidence, worthy of credence, clinching affirmatively, factum of involvement of the accused alone, in the crime. As already observed, there was ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 29 nothing on record to establish that the witnesses chose to side with the accused. At least, police had no such apprehension. Had it been so, they would have neither .
associated them during investigation nor examined them in Court. They would have not given up witnesses during trial. Additionally they would have associated or examined other persons from the neighbourhood.
of Evidence, by way of photographs and CD is only corroborative in nature. In this case primary evidence, linking the accused to the crime, is missing. The rt circumstance of discovery of fact, as discussed earlier remains unestablished on record. With certainty, it cannot be said that the weapon of offence, contained blood, only that of the deceased. Through the testimonies of the witnesses, it has come on record that the accused did try to talk to the deceased. In fact, he made an attempt of reviving her.
39. From the material placed on record, prosecution has failed to establish that accused is guilty of having committed the offences, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of ::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 30 the prosecution witnesses. The guilt of the accused does not stand proved, beyond reasonable doubt, to the hilt.
40. Findings returned by the trial Court, convicting .
the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material of piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage rt of justice, inasmuch as accused stand wrongly convicted for the charged offence.
41. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 30.09.2015/03.10.2015, passed by the Sessions Judge, Hamirpur, H.P., in Sessions Trial No.02 of 2015, titled as State of H.P. Versus Rajinder Kumar, is set aside and convict acquitted of the charged offences. Convict, who is in jail be released forthwith, if not required under any other process of law. Release warrants be prepared accordingly. Amount of fine, if deposited by the convict, be refunded to him.
::: Downloaded on - 15/04/2017 22:06:28 :::HCHP 3142. Registrar (Judicial) to forthwith take appropriate action.
Appeals stand disposed of, so also pending .
application(s), if any.
(Sanjay Karol), Judge.
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(Ajay Mohan Goel),
April 3 , 2017 (PK) Judge.
rt
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