Himachal Pradesh High Court
Chandresh Sharma vs State Of H.P on 10 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 497/2018 Reserved on: 27.9.2023 Decided on : 10.10.2023 .
Chandresh Sharma .....Appellant
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 For the Appellant:
rt For the Respondent:
Mr. Ram Murti Bisht, Advocate.
Mr. I. N. Mehta & Mr.Yashwardhan Chauhan, Sr. Additional Advocate Generals, Ms. Sharmila Patial & Mr. Varun Chandel, Addl. A.Gs.
____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment, dated 20/25.9.2018 passed by the learned Additional Sessions Judge-III, Kangra at Dharamshala, whereby he has been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 20,000/- and, in default of payment of fine, to further undergo simple imprisonment for a period of six months under Section 302 of Indian Penal Code (for short, IPC) and to undergo rigorous imprisonment for a 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 2
period of 10 years and to pay a fine of Rs. 10,000/- and, in default of payment of fine, to further undergo simple .
imprisonment for a period of 3 months under Section 376 IPC.
Both the sentences were ordered to run concurrently.
2 The case of the prosecution, in brief, is that on 13.1.2013, at about 12.30 a.m., Ram Pal (PW9) visited the Police Post, Gaggal, and informed them that the room of of Archana Mahajan (since deceased), who used to live in his house on rent basis, was closed for the last two days, and when rt her room was opened by her mother, she was found to be dead in her room. On receipt of such information, HC Desh Raj, along with HHC Madan Lal and Constbale Nawal Bharti, rushed to the spot. The SHO, P.S. Kangra, and Dy. SP were also informed about the incident telephonically vide Rapat No. 16, and accordingly, SHO Mohinder Singh along with ASI Mehar Singh, Lady HC Raksha, and HHC Harbans Singh, visited the spot at place 'Ichhi' in a government vehicle bearing number HP-68- 2341. After reaching the spot, LHC Raksha inspected the body of the deceased, and after inspection, the inquest report, i.e., forms 25.35 A, B, and C, were filled in. During the course of the inspection, injury marks were noticed on the neck of the deceased, and blood was found oozing out of her private parts.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 3On 13.1.2013, the Investigating Officer, Dy. SP Mohinder Singh (PW42), recorded the statement of complainant Sudesh .
Mahajan (PW1) under Section 154 Cr.P.C. He also took photographs of the spot with the help of official camera. The dead body of the deceased was subjected to postmortem examination at Dr. RPGMC, Tanda, and after clicking photographs of the dead body, postmortem report was obtained, of wherein the cause of death was found to be that of neck compression by ligature strangulation being sufficient to cause rt death in the ordinary course of nature; therefore, an offence under Section 302 of the Indian Penal Code was made out, and F.I.R. 21/2013 dated 11.1.2013 came to be registered.
3 During the investigation, the investigating officer visited the rented accommodation of the deceased at Ichhi and found one blood-stained pillow cover alongwith one woollen glove on the floor. He clicked the photographs of the aforesaid articles and took possession of same after sealing them in a cloth parcel vide separate memo. During the search of the room, one mobile phone reliance LG, one mobile age charger, one greeting birthday card, one ATM card, lock, key, and one wrapper, over which 'Hit Killer Rats' was written, were recovered ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 4 and taken into possession vide separate recovery memo in the presence of witnesses Pawan Kumar.
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4 On 14.1.2013, on the basis of the statement of witness Nishant Khanna, one note bearing the signatures of the appellant, produced by Rakesh Kumar, was taken into possession vide a separate seizure memo in the presence of witnesses Vipan Sharma and Anish Kumar. During further of inspection of the room of the deceased, "Pakauras" Mutton and Pulao were taken into possession vide separate seizure memo in rt the presence of witnesses Ram Pal and Pawan Kumar. The photographs of the kitchen from where the aforesaid "Pakauras, Mutton, and Pulao were taken into possession, were also clicked. Thereafter, the appellant was arrested. While in police custody, the appellant made a disclosure statement under Section 27 of the Indian Evidence Act to the police in the presence of witnesses Pawan Kumar and Khem Singh to the effect that he had hidden the "Dupatta" in the almirah of the deceased, which had been used by him to strangulate her. The appellant further disclosed that he had thrown the rope, which was also used to kill the deceased, in the bushes near Mount View School, Ichhi. The appellant had also disclosed that after committing the offence, he had locked the room and concealed ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 5 the keys in the window, and he could get the same recovered and spot map qua recovery on the basis of the disclosure .
statement prepared by the investigating officer. Thereafter, in pursuance of the disclosure statement, the weapon of offence, i.e., rope, Dupatta, and the key, were taken into possession by the police vide separate memos in the presence of witnesses.
5 During further investigation, while conducting of search of the rented premises of the appellant, his two photographs, alongwith one lady and the deceased, were rt recovered and taken into possession vide separate memo in the presence of witnesses Jagdish Chand and Ashwani Kumar. The appellant was medically examined at Civil Hospital, Kangra, where the blood samples were preserved for DNA profiling by Dr. Arvind Sharma, who, after sealing the same, handed them over to the police. On the basis of the application moved by the investigating officer, Dr. Sushil Sharma (PW22) gave his opinion that the ligature mark mentioned in the postmortem report could be possible with plastic rope. On 28.1.2013, parcels containing a lock, blood-stained pillow, glove, and jar containing mutton Pulao and Pakora, alongwith plastic rope, dupatta, key, viscera of the deceased, and apparel, were sent to RFSL, Dharamshala, for analysis, and reports thereof were obtained.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 6On 1.2.2013, parcels containing lock and key were sent to RFSL Gutkar Mandi, and the report was obtained. During the .
investigation, nail clips, vaginal swab and blood on gauze of the deceased, and blood samples of the appellant on the FTA card were sent for DNA profiling to SFSL Junga, and a report was obtained. The note written by the appellant, diaries, birthday greeting cards, specimen handwriting, and his signatures were of sent to RFSL, Dharamshala for comparison, and a report thereof was obtained. The Investigating Officer also obtained the rt phone number of the appellant. On receipt of the result of DNA profiling from SFSL Junga, it was found that the deceased was subjected to sexual assault, and the Investigating Officer prepared the supplementary challan and filed the same in court. The statements of the witnesses were recorded under Section 161 Cr. P.C. as per their respective versions. After the completion of the investigation, Challan presented before the court for trial of the appellant.
6 Thereafter, an application was filed by the prosecution for amending the charge by adding additional charge under Section 376 IPC and the application was duly allowed and additional charge was framed on 4.8.2017 and put ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 7 to the appellant, to which he pleaded not guilty and claimed trial.
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7 In order to prove its case, the prosecution examined as many as 43 witnesses. Thereafter, the statement of the appellant was recorded under Section 313 Cr.P.C., wherein he claimed himself to be innocent and examined three witnesses in his defence.
of 8 It is pertinent to mention here that no additional evidence save and except re-examining the Investigating Officer rt was led by the prosecution on the additional charge and strangely enough, the learned trial court did not even bother to examine the appellant under Section 313 Cr.P.C. for an additional charge that was framed under Section 376 IPC.
9 The learned trial court, after evaluating the oral as well as documentary evidence convicted and sentenced the appellant, as aforesaid.
10 It is vehemently argued by Mr. R. M. Bisht, learned counsel for the appellant that the findings recorded by the learned trial court are totally perverse and therefore deserve to be set aside. He has pointed out certain discrepancies in the prosecution case, which, according to him, strike at the very ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 8 core of the prosecution case, making its story inherently improbable and absolutely untrustworthy.
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11 On the other hand, Mr. I. N. Mehta, learned Senior Additional Advocate General assisted by Ms. Sharmila Patial, learned Additional Advocate General, would argue that the learned trial court has painstakingly discussed each and every aspect of the case, more particularly, oral as well documentary of evidence that has come on record and it is only thereafter that the appellant has been convicted and sentenced and in such rt circumstances, no interference is warranted.
12 We have heard the learned counsel for the parties and have also gone through the records of the case.
13 At the outset, it needs to be observed that there is no eye witness in this case and it rests completely on circumstantial evidence. As per the settled legal position, in order to sustain conviction the circumstances taken cumulatively should form a chain, so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the appellant only and none else.
The circumstantial evidence must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the appellant and such evidence should not only be consistent with ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 9 the guilt of the appellant but should be inconsistent with her innocence as was held by a Bench of three Hon'ble Judges of .
the Hon'ble Supreme Court in Rahul vs. State (NCT of Delhi) 2023 (1) SCC 83.
14 However, in order to satisfy ourselves regarding the correctness of the findings recorded by the learned court below, we would have to first examine the evidence led by the parties.
of 15 PW1 Sudesh Mahajan is the father of the deceased, who stated that his daughter along with the appellant was rt working in Reliance Company at Ichhi for the last year. The deceased had rented accommodation at Ichhi, whereas the appellant was working at Kangra with his daughter. The appellant had rented accommodation at Mator and used to visit his house at Village Dhulara along with his daughter. The appellant was introduced as a friend. She had a mobile phone, but he did not know its number. His nephew Saurav also used to live with his daughter at Ichhi. On 11.1.2013, the appellant boarded his nephew on the bus at Gaggal and reached Dhulara.
On the same day, at about 8:00 p.m. his daughter talked to her mother on mobile. On the next day, he as well as his wife rang up the deceased several times, but she did not respond.
Afterward, his wife telephoned the appellant inquiring about her ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 10 daughter, who told him that the deceased had gone to appear in an interview and was likely to come afternoon. Thereafter, his .
wife telephoned twice and then the appellant told her that the deceased would be back by 2.00 or 3.00 O'clock. After that, he sent his wife Surendra, his sister-in-law, and nephew to Ichhi to inquire about the deceased. The rented house of the deceased was locked from outside. On this, his wife wanted to stay at of Ichhi because of night and thereafter broke open the lock of the door of the rented house and found Archana lying dead on the rt cot. The postmortem of Archana was conducted at Dr.R.P.G.M.C. Tanda. He had reasons to believe that the appellant had murdered his daughter Archana being her friend.
He made a statement under Section 154 Cr.P.C Ext.PW1/A. 16 In his cross-examination, he stated that his daughter was an undergraduate and had also done a computer course, but he feigned ignorance regarding the place where she had done a computer course. He further feigned ignorance regarding the place where his daughter was residing. He did not know who had provided rented accommodation to her. He voluntarily stated that his wife could tell him about the same.
He stated that he did not know anyone by the name of Rohit and stated that his daughter remained at Dharamshala for ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 11 about 4 years. He further stated that he had known the appellant for about 2 years as he used to visit his house at .
Dhulara. He admitted that his daughter never disclosed to him that the appellant had ever maltreated his daughter. He stated that Saurav Mahajan had met at about 4:30 p.m. on 11.01.2013 as he was at home. He voluntarily stated that it was the appellant, who boarded his nephew in the bus from Gaggal of on 11.1.2013. He stated that the distance between his house and that of Saurav Mahajan was about 200-250 metres. He rt admitted that he did not talk with Saurav Mahajan on 12.01.2013. He stated that he did not know Nishant Khanna and also feigned ignorance regarding his daughter having an affair with Nishant Khanna, who was also employed in Reliance Company in Hamirpur. He also feigned ignorance regarding the presence of Nishant Khanna along with the deceased at Ichhi on 10.1.2013. Lastly, he stated that he suspected the involvement of the appellant in the murder of his daughter since he was telling that his daughter had gone for an interview whereas, she had already died by that time.
17 The mother of the deceased, Surendra Kumari, appeared as PW2, and in addition to what was stated by the father of the deceased (PW1), she stated that Saurav Mahajan ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 12 had reached village Dhulara on 11.1.2013 at about 6:00 p.m. She had talked to her daughter on 11.01.2013 at about 8:00 .
p.m. who told her that she was eating 'BARANJ' and was all right. On 12.01.2013, she rang up her daughter at about 8:30 a.m., but she did not pick up the phone upto evening she kept on calling her daughter, but she did not respond and thereafter she rang up the appellant as he had visiting terms with her of daughter in her room being an employee of reliance company.
On being asked, the appellant told that her daughter had gone rt to Dharamshala for an interview and was likely to come back at 2:00 p.m. or 3:00 p.m. On 12.01.2013 at about 7:00 p.m. she along with her nephew and sister-in-law started from village Dhulara to Ichhi and when they reached at Ichhi, she inquired about her daughter from the owner of the house, namely, Rampal. The owner of the house informed that he saw Archana on 11.01.2013 in the morning hours. They wanted to stay in the room of Archana because it was night and it was then they broke open the lock of the door of the house and entered the room and found her daughter lying dead on the cot, upon which she rang up the police. Police personnel including one lady constable came to the spot. The lady constable examined the dead body of the deceased and then they noticed that the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 13 deceased had a ligature mark on her neck and the blood was oozing out from her nostrils and her tongue was out of her .
mouth. The blood was also oozing out from her private part. She suspected that the appellant had killed her daughter as the appellant had sent her nephew to the village. She remained associated with the police on 12.01.2013. Saurav Mahajan had told her that on 11.01.2013 appellant was at Ichhi. Saurav of Mahajan had also told her that Nishant, the appellant, and Archana had taken lunch together and thereafter Nishant had rt left for his house to Hamirpur and the appellant had brought him to Gaggal bus stand and boarded him in the bus to village Dhulara. The owner of the house, Rampal, and the appellant frequently used to visit rented accommodation of Archana.
18 In cross-examination, she admitted that she knew Rohit and that he used to trouble his daughter during her stay at Dharamshala. She also admitted that Rohit had criminally intimated her daughter and he had also gone to the computer centre where she was studying and had troubled her. However, she denied the suggestion that she had shifted her daughter's accommodation from Dharamshala to Ichhi due to problems created by Rohit. She voluntarily stated that she had shifted due to her job assignment. She admitted that the appellant was ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 14 on visiting terms for about 2 or 3 years. She further stated that the appellant used to misbehave with her daughter as well as .
with her and used to intimidate her. However, she did not state any specific words, which might have been uttered by the appellant. She further stated that her daughter used to tell her that she would not solemnize her marriage. She feigned ignorance that the appellant used to look after her daughter of before 11.01.2013. She admitted that the deceased Archana and Saurav Mahajan used to visit the village together on the eve rt of vacations. Saurav had reached village Dhulara at about 6:00 p.m. on 11.01.2013, but she admitted that she had not talked to him on 11.1.2013 and had talked to him only on 12.01.2013 when her daughter did not pick up the phone. She talked to Saurav in the presence of her sister-in-law Raksha and in her presence, he did not tell as to what had happened on 10.01.2013. She specifically stated that she did not know Nishant Khanna and Saurav also did not tell her about Nishant Khanna nor did she have any telephonic conversation with him.
She stated that she did not know Rita Khanna, Sonam Thapa, Negi, and Amit Chaudhary. She further stated that Saurav broke open the door with the help of stone in their presence.
She did not notice goods lying inside the room. She did not ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 15 know that Nishant Khanna had visited the room of the deceased on 10.01.2013. She did not know that Saurav was sent by her .
daughter to tell her that her friends were coming to stay with her in residential quarter. She did not remember the time when she had called the appellant. She admitted that the mother of the appellant had talked to her on 12.01.2013 at the instance of the appellant. She admitted that she suspected the involvement of of the appellant in the killing of her daughter since he had told a lie about her daughter having gone for an interview because rt she had died by that time.
19 PW3 Sangeeta Thapa stated that she had been residing at Lower Sham Nagar, Dharamshala with her daughter in a rented house. She knew Archana as they had been on visiting terms. On Friday, before Lohri of 2011, she got a telephonic call from the deceased that she would be coming to Dharamshala and staying in her house as on Saturday, she had an interview there. On Saturday, she got a call from her cousin Sandeep Verma that Archana was not picking up the phone and that her parents were worried. She told him that Archana was to come to her house, but she did not visit her. She on the askance of Sandeep Verma made calls to Archana and also forwarded messages, but she did not pick up the phone nor ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 16 gave reply to her messages. She then at the instance of Sandeep Verma made a call to her mother. She told that Archana had .
been found dead and her dead body was lying at Tanda Hospital. She on the next day in the early morning reached Tanda Hospital, where the father of Archana told her that she had been murdered and postmortem examination was being conducted on her body. Archana had told her that she had of friendship with the appellant and her friendship had now broken. She had also told her that they were not having good rt relations and the appellant had been getting annoyed with her.
She had tried to patch up the differences between Archana and the appellant but in vain. She further stated that the appellant and the deceased had been on taking terms even after the breakup. At this stage, she was declared hostile and cross-
examined by the learned Public Prosecutor. In cross-
examination, she denied that she had stated to the police that she suspected that due to differences between the appellant and the deceased, the appellant had committed the murder of Archana.
20 In cross-examination conducted by learned defence counsel for the appellant, she stated that she had known Archana and the appellant for last about 4-5 months and had ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 17 visited the residential quarter of Archana 2-3 times. During this period, she had also visited her 3-4 times. She talked to the .
mother of Archana for the first time on Saturday morning and got acquainted with her. She feigned ignorance regarding deceased friends and colleagues visiting her residential quarter.
She stated that the deceased and the appellant had told her that they were to get married. She feigned ignorance that the of appellant had been taking due care of Archana. She stated that Saurav Mahajan had been residing with Archana. However, rt Archana did not tell her on that day on the phone that Nishant Khanna was to visit her and was to stay with her on that night.
She denied the suggestion that Archana had an affair with Rohit Sharma and Nishant Khanna and stated that Archana had an affair with the appellant only. Archana was the adopted daughter of PW1 and PW2.
21 Saurav, cousin of the deceased, appeared as PW4 and stated that the appellant was working in Reliance company at Kangra and had been frequently visiting the residential quarter of Archana. The appellant had been asking Archana to get marry him but she had been refusing to marry him. On 10.1.2013, Archana told him that her friend was coming to her from Dharamshala and he should go to the quarter of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 18 appellant to stay at night. He and the appellant had meals in the appellant's residential quarter at Ichhi. On next morning, .
they came with an empty cylinder to the residential quarter of Archana at Ichhi, where Nishant was there. The appellant on noticing Nishant became sad. He also entered the quarter and noticed Nishant for the first time. They all had breakfast in the quarter of Archana. They took the cylinder and left it at Matour of and Archana went to her office, while the appellant returned to his quarter at Ichhi. Archana made a telephonic call to him at rt 12 noon to get green peas and at about 1:00 p.m. he not only got the peas, but Pakora also and went to her residential quarter. There he found the appellant, Nishant, and Archana.
Archana cooked rice Baranj and they all took the same and thereafter came to Ichhi bus stop. Archana went to her office and Nishant left for Hamirpur and he and the appellant came together up to Gaggal. Thereafter, this witness went to Chamba.
He later came to know that Archana's mother talked with her on 11.1.2013 at about 8.00 a.m. and on the next morning, Archana did not pick up her phone. The mother of the deceased called the appellant at about 12:00 noon, who informed her that Archana had gone to appear in an interview and would return by 5:00 p.m. The deceased mother again called her on mobile at ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 19 about 3.00 p.m but she did not receive the same. When she again called the appellant, she was informed by the appellant .
that Archana would return by 6.00-7.00 p.m. Thereafter, the deceased's mother, his mother, and he hired a taxi and reached the residential quarter of Archana at about 8.30 p.m. and found the door locked. They went to landlord Ram Pal and the deceased's mother gave a call to the appellant, who told her that of Archana was with her friend at Dharamshala. He broke open the lock to stay in the room and found the dead body of the rt deceased lying on the bed. They accompanied by landlord Ram Pal went to Police Post Gaggal to lodge a report. The police reached the spot and the dead body of Archana was taken to Tanda Hospital for post-mortem. He then again returned to the residential quarter with Pawan and the police took into possession mobile phone, mobile charger, ATM card, and one wrapper with Mark "Rat Killer" vide memo Ex.PW4/A. The pillow cover and gloves were sealed and taken into possession vide memo Ex.PW4/B. He also recognized the case property.
22 On being cross-examined, this witness stated that the appellant on noticing Nishant had remarked that Archana would have committed a wrongful act with Nishant and he had told him that she was his sister and she would not think of ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 20 doing such an act. He stated that the appellant had committed the murder of Archana. He further stated that the appellant .
used to quarrel with Archana and had been impressing her to marry him, but she refused. He admitted that he did not bring this fact to the notice of her parents his parents or other family members. He stated that he knew PW3 Sangeeta, who used to visit quarter of the deceased at Ichhi many times. He and the of appellant took meals in the normal course and were normal on that day. He further stated that he, Nishant Khanna, the rt appellant, and Archana did not talk on that day. He reached his native place in Chamba at 4:00 p.m. on that day and was given a call by Archana's mother that she was receiving the call and all other families including the parents of Archana were present there. He tried to contact Archana's friend and the appellant to ascertain the whereabouts of Archana on that morning. He did not know whether Archana's mother contacted the appellant at Dharamshala to find out the whereabouts of Archana on that day. He stated that he did not tell to any family member that Nishant was in the quarter of Archana. She did not tell him that she was having an affair with Nishant and wanted to marry him. He further stated that he, Archana and the appellant had the knowledge of the place where the key used to be kept, but ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 21 stated that he could not trace the key. He admitted that Pawan Kumar was his uncle (Taya) and was at Ichhi. He further stated .
that Archana was broad minded and her friends and office colleagues used to visit her in her quarter. The appellant used to take care of her like a guardian. He further deposed that since the appellant had told her mother that Archana had gone to appear in an interview, therefore, they suspected that he had of committed her murder.
23 Pawan, who is the uncle of the deceased, appeared rt as PW5 and stated that on 13.1.2013, he had come to Ichhi and visited the spot, which in his presence was inspected by the police. The Police had recovered one mobile phone, charger, greeting card, ATM card and one wrapper on which the words "Hit" Kill the rats were inscribed. He identified the case property besides one pillow cover and one woolen hand glove, that were taken into possession. He further stated that Khichri, meat and Pakora lying in the residential quarter of the deceased were taken into possession by the police in his presence. He further stated that on 15.1.2013, he had come to Police Station Kangra, where the Police was enquiring from the appellant as to where he had kept the articles. The Police had then taken him and Khem Chand to a place on the back side of the spot and the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 22 appellant had told that he had thrown the plastic rope there.
The appellant was then taken to the room. The appellant .
produced one Dupatta (chunni). The room was locked at that time and was opened by the Police. He identified the dupatta as also plastic rope.
24 On being cross-examined, he stated that when he reached the spot at 8.30/9.00 p.m., the mother of the deceased of and Saurav were present there and when Police reached, Archana was dead lying dead with her face on the surface. He rt stated that on 13.1.2013 he and Ram Pal visited the spot where the appellant got recovered the articles as mentioned. He again joined the Police on 14.1.2013 and at that time also the appellant was not present at the Police Station. He had accompanied the Police to the spot where the Police took into possession Khichri, Pakora and meat in the presence of Ram Pal. At that time, except for a telephonic call, they had no knowledge about the involvement of the appellant in the instant case. He further stated that on 15.1.2013, he along with Khem Chand again visited Police Station at 10.00 am. He admitted that blood stains were not visible on the pillow cover Ex.P-6. He however admitted that the appellant had not made any disclosure statement.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 2325 Khem Singh, witness of recovery of rope and dupatta was examined as PW6, who stated that the appellant in their .
presence told to police that he had knowledge of rope and dupatta and thereafter got the same recovered. However, in his cross-examination, he admitted that even though the deceased was not related to him, but Pawan was his friend and he had visited the police station at the insistence of PW5 Pawan.
of 26 Nishant, who is stated to have stated at night 10.1.2013 with the deceased in her residential quarter at Ichhi, rt the night before her alleged murder, was examined as PW7. He stated that was working as operation supporting engineer with Reliance Communications Ltd at Hamirpur. Archana was known to him for about 2 months prior to her death. He had only business terms with Archana as she was working in his office at Ichhi. She had given him her personal mobile number.
He once had visited her at Dharamshala. On 10.1.2013 Archana had invited him to Ichhi in her room and he stayed there for a night with her. During his stay, they enjoyed sex. In the morning, Saurav and the appellant came to the room of the deceased and had their breakfast there and thereafter Archana left for her office while he, Saurav and the appellant remained in the room. At noon, Archana came to her room and they all had ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 24 lunch. After lunch, he left for Hamirpur, whereas Archana, appellant and Saurav remained there. On the same evening, he .
telephonically informed Archana that he had reached Hamirpur.
Thereafter, he had no communication with her. Archana had told him that the appellant was her ex-boyfriend. At this stage, the learned Public Prosecutor got declared the witness hostile and was permitted to be examined. In cross-examination of conducted by the learned Public Prosecutor, he stated that he had not stated to the Police that the appellant had asked him to rt persuade Archana to marry him and he replied to him that Archana was not interested in him, rather she was interested in him (witness). He further denied that the appellant had become annoyed and nervous. He denied that he had made any statement to the Police that on 11.1.2013 during the night when he telephonically contacted Archana, she told him that she had taken meals, whereas the appellant was not taking meals and thereafter he telephonically asked the appellant as to why he was present there and the appellant replied that after taking meals he would leave the room. He further denied having made a statement to the police that at 8.30 p.m., he again gave a telephonic call to Archana, who had not attended the call and then he contacted the appellant on his mobile phone, who ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 25 replied that he was in his room and that Archana was sleeping in her room. He also denied having made a statement to the .
police that at 11 p.m. he again telephonically contacted Archana, but the call was not attended. He further denied having made any statement to the police that on 12.1.2013, he wished the mother of Archana on the eve of Lohri and also informed her that Archana was not attending his calls. He of further denied that he had made any statement to the police that on 13.1.2013, the mother of Archana had told him that rt Archana had died. He also denied the suggestion that the appellant had strangulated Archana as he wanted to marry her.
He also denied the suggestion that Archana was not interested in marrying him therefore, the appellant had killed her.
27 PW8, Jeewan Kumar, claims to have associated with the police. He stated that on 13.1.2013, he had visited the spot along with police, where photographs of the dead body were taken by the police. He further stated that the police prepared the inquest report in his presence. Rest of his testimony is based on hearsay and is not relevant.
28 PW9 Rampal is the owner of the premises, where Archana had been residing as tenant. He stated that on seeing the dead body of Archana, he had gone to Police Post Gaggal to ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 26 report the matter and the police had taken the sample of eatables in possession and sealed the same. However, he .
identified these samples but did not disclose anything else by stating that nothing was done in his presence and was declared hostile. On being cross-examined by the learned Public Prosecutor, he denied the suggestion that the scene of crime was photographed in his presence. On being cross-examined by of the learned defence counsel for the appellant, he stated that the mother, aunt and cousin of the deceased had reached the room rt at about 9.30 P.M.. He deposed that he had seen the appellant in the court for the first time after the date of the incident and had not seen him during the intervening period. He further deposed that colleagues of the deceased used to visit her and that Saurav had been frequenting her once in a month.
29 Suman Devi, another tenant of PW9 Ram Pal was examined as PW10. She deposed that she had been serving in Reliance Company and she was known to the deceased for the last about 2 ½ years. On 10.1.2013, the mother, aunt and cousin of the deceased had visited her room and enquired about the whereabouts of the deceased, whereupon she informed that she had no knowledge of the deceased. They waited for 1-2 hours. She left the place as her child was of tender age and later ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 27 on she heard noise of weeping and found out that Archana was no more. She further stated that the appellant had been visiting .
the deceased often.
30 On being cross-examined by the learned defence counsel for the appellant, she stated that their locality was thickly habituated and shops were also there. She further stated that she did not notice the appellant on 10.1.2013 or of 11.1.2013 at Ichhi.
31 PW11 Manoj Kumar claims to have known the rt appellant and the deceased and stated that he had been working as an Area Sales Manager based at Kangra, where the appellant was also working. He used to stay with the appellant.
One Peer Mohamed also used to stay with the appellant before the incident. He further deposed that Archana Mahajan was also working in the same company, but was posted at Ichhi. The appellant disclosed that Archana Mahajan was his fiancé. On 12.1.2013, before noon, he received a telephone of one Rakesh, who disclosed that they had to go to the room of the appellant because he had not been picking up the phone and there could be some problem there. He then went alone to the quarter of the appellant at Purana Mataur and found Anish, Vipin, Rakesh and Anil there. The appellant was found in a drunken condition ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 28 and was also smoking heavily and smoke was coming out from his room. Thereafter, he demanded food, which they arranged .
from outside and at that time he was not in a position to stand independently. In the meantime, Rakesh received a telephone call from the mother of the appellant and thereafter he also talked with her on the telephone and she told them to take care of him till they reached his room. After 10 minutes, again they of received telephone calls from her mother, who requested to bring him to Hamirpur. He along with Anil took him to rt Hamirpur in vehicle bearing No. HP-40A-6030 and after that, he came back. On the next morning, Distributor namely Narinder Sharma had contacted him on telephone and disclosed that Archana Mahajan was no more. He went to the office of the Distributor and he came to know this fact from the newspaper.
On the next day, he remained associated with the investigating agency. On 12.1.2013 when they went to the room of the appellant before taking him to Hamirpur, they had changed his clothes and from the clothes which he was wearing one letter Ex. PW11/A was recovered by Rakesh from the pocket of paints of the appellant. During the Investigation, he had seen the photographs of the dead body of Archana Mahajan, from which, he could not conclude that she had been killed by someone.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 2932 On being cross-examined, he stated that he knew Archana from the time when he and the appellant were .
roommates. He admitted that Archana used to visit the room of the appellant when we were roommates. He voluntarily stated that it was the reason of his leaving the room of the appellant.
He stated that he never visited the room of Archana and did not know that some colleagues of Archana like one Rohit used to of visit her room. He further deposed that he was not on talking terms with Archana. He denied the suggestion that the rt appellant was disturbed as he was having fever and having effects of epilepsy. He further denied that the appellant used to take tablet alprex. He further stated that when they were going to Hamirpur, the appellant was sitting beside him and he was getting repeated telephonic calls, but he was not picking up the same. He then requested the appellant to pick up the phone as he was getting disturbed while driving. The appellant had told him that the mother of Archana was calling to know whereabouts of Archana, whereas Archana had gone for an Interview.
33 PW12, Anish Kumar is another employee of Reliance Communication, who stated that he along with Manoj, Anil, Rakesh, Vipin and the appellant were working in the aforesaid ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 30 company. On 12.1.2013, one telephonic call was received from Rakesh at about 9.15/9.30 a.m., who disclosed that he had .
received the telephone call from the mother of the appellant, he was not picking up the phone and that he should go to the appellant to see why he was not picking up the phone.
Thereafter, he made a telephonic call to Anil regarding the aforesaid matter and later on he along with Anil went to the of room of the appellant at Purana Mataur, where they found the door to be locked from the inside and at that point of time, rt Rakesh also came there and they entered the room from the other door. They saw that the appellant was lying on the floor as there was no bed inside the room. Rakesh inquired the matter why he was not picking up the phone, but he could not answer as he was in a drunkard condition. When Rakesh asked him again then he told that he had consumed beer at night and had not taken food from night. Then, at the request of Rakesh, he went to Gaggal to get food for him. The appellant had taken food and by that time Vipin and Manoj also came there. Rakesh received a telephonic call from the mother of the appellant and thereafter Manoj also talked to his mother. When the facts were disclosed to the mother of the appellant, she requested Manoj to bring him to Hamirpur. Rakesh had changed the clothes of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 31 appellant and found one letter from his clothes, Ex. PW11/A, on which it was written that the appellant loved Archana and one .
another Nishant had come in between them. Thereafter Anil and Manoj went to leave him at Hamirpur and on the same day, they came to Kangra. Letter Ex. PW11/A was handed over to the police, which was taken into possession by the police vide seizure memo Ex. PW12/B. On the next day i.e. 13.1.2013 they of came to know from the office that Archana had expired. He further deposed that the appellant used to tell them that rt Archana was his fiancé and he would get married to her. He further deposed that the appellant used to proclaim that if Archana did not belong to him then she would not belong to anyone else.
34 On his cross-examination, he deposed that he had known Archana since he joined the office and came to know about the appellant. Vipin and Anil were also aware of the proclamation made by the appellant to the effect that he would now let Archana belong to anyone else. Archana never told him that she was engaged to the appellant and they were getting married. He never told Archana that the appellant had been maligning her image by saying that she was his fiancé and she ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 32 would get married to him. He further deposed that the appellant had never misbehaved or treated Archana badly in his presence.
.
35 Rakesh Kumar, another employee of Reliance Company appeared as PW13 and stated that 4-5 days prior to the occurrence, the appellant had not made payment of collection done by him, therefore, he was terminated by the company. At that time, the appellant used to reside at Ichhi. He of had also visited his quarter 2-3 times. On 12.1.2013 he received a telephonic call from the mother of the appellant that he was rt not picking up the phone, upon which he requested his colleagues Anish and Anil, who were residing near Kangra to go to the appellant and check whether there was any problem to the appellant. Rest of the statement is based on hearsay except that at about 11.00/11.15 a.m. he again received a telephonic call from the mother of the appellant-appellant, who told that in case the appellant was not feeling well, then he should make some arrangement to send him to house and would also bear traveling expenses. He got changed the clothes of appellant and had found one letter Ex. PW11/A from the pocket of his pants which he was wearing. He had gone through the contents of Ex.
PW11/A, in which he had written that he loved 'Archana' he did not remember the rest of the contents of Ex. PW11/A. He ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 33 further deposed that the appellant did not tell him regarding any dispute between him and Archana. He did not have any .
knowledge or suspicion who had killed Archana. At this stage, he was declared hostile and cross-examined by the learned Public Prosecutor and stated that he had gone through the contents of the whole of the letter Ex. PW11/A and voluntarily stated that they had procured a photocopy of the same.
of 36 PW14, Jagdish Chand, landlord of the appellant has been examined to prove tenancy of the appellant and stated that rt on 11.2.2013 at 3.00/4.00 P.M., the appellant had come through the main gate to his room. He enquired from him about his health but was not feeling well and wanted to take rest. He deposed that on 12.1.2013, he had gone somewhere to have a meal, as he had been invited by someone. At about 8.00/9.00 P.M., he received a telephonic call on his mobile from Kangra police and disclosed that they wanted to search his house and the main gate was locked from outside and informed that the appellant had killed somebody and in this regard, they had to search his room. During the search, the police recovered two photographs, Ext. PW14/A and Ext. PW14/B. He had told the police that the girl appearing in the photographs wearing red ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 34 Duptta was Archana, which was told to him by Manoj and Rakesh that she was the fiancé of the appellant.
.
37 On being cross-examined, the witness stated that he had never seen the appellant taking liquor or any intoxication or in drunkard condition nor had anybody complained against him. He further stated that the appellant had come home on 11.1.2013 and he did not see him leaving the room till the next of day. He admitted that on 12.1.2013, two-three friends of the appellant had taken him from the room to his house as he was rt not well. He feigned ignorance as to whether Archana had come to the room to meet the other boys other than the appellant. He voluntarily stated that she used to be mostly with the appellant.
38 PW15, Ashwani Kumar is Ward Panch, has proved recovery of two photographs, Ext. PW14/A and Ext. PW14/B. 39 PW16 Rajnish Shridhar, was posted as Area Manager in Reliance Communication Kangra and Chamba and stated that the deceased used to reside in the vicinity of the office. As per his opinion, she had worked till 6.00 P.M. on 11.1.2013, whereas she had not turned up to the office on 12.1.2013. He further deposed that they had tried to contact her telephonically, but she was not picking up the phone and on receipt of a telephonic call from the mother of the deceased, ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 35 he sent one Inderjeet to inquire about the whereabouts of the deceased, who after visiting room of the deceased, informed that .
room of the deceased was found locked from outside. He also told that he inquired about the whereabouts of Archana, but nobody had told him about his whereabouts. On 13.1.2013, he came to know that Archana was no more and had been murdered and it was through the newspaper that he learnt that of the appellant had committed the murder of Archana. On being cross-examined by the learned defence counsel, he stated that rt had not seen the appellant coming to his office to meet Archana.
40 PW17 Inderjeet is the office boy, who was sent by PW16 to the house of Archana and he stated so in his examination-in-chief.
41 PW18, Rita Khanna is the mother of Nishan Khanna, PW7 and stated that she did not know Archana and only learnt from the newspaper that one Archana, who was a colleague of her son had been murdered. On being cross-examined by the learned, she admitted that her son had gone to Chandigarh to appear in some test and reached back home on 11.1.2013 at about 6.15 P.M. She feigned ignorance when her son had reached, he had got a call from Archana and she had also talked to her. She admitted that on the next day, her son had ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 36 joined the duties. She admitted that she was informed by her son on the evening of 13.1.2013 that Archana had been .
murdered.
42 PW19 Rakesh Kumar is the brother of the appellant, who has not supported the story of the prosecution except identifying signature over memo, Ext. PW19/A. He denied that he had given any diaries of the appellant to the police.
of 43 PW20 Geeta Devi is also a witness to the recovery memo, Ext.PW19/A and has not supported the prosecution rt story except admitting her signatures on the recovery memo, Ext.PW19/A. 44 PW21 Rajinder Kumar has only tried to prove that his SIM was being used by the appellant.
45 PW22, Dr. Susheel Sharma, conducted post post-
mortem of the deceased and was re-examined on 3.7.2015 and stated that he had handed over the gauze of the deceased and sealed it in an envelope, Ext. PX with the seals of RPGMC Tanda and handed over the same to the police.
46 PW23, Dr.Minaskshi Mahajan, proved on record writing on questioned documents, Ext. PW11/A to be written by the same person, however in cross-examination, she admitted that she was not having any specific degree or diploma in ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 37 forensic science. She stated that she was recruited to the post of Assistant Director, Documents and Photographic Division in the .
year 2000 as per recruitment and promotion rules. She further admitted that she had not given any observations on the fact that the same pen was used on questions, specimen and admitted documents as the investigating agency had not asked for the same. She further stated that she had not determined of the age of the writing only on the ground that same had not been sought by the Investigating Officer.
rt 47 PW24 Rajesh Kumar, Assistant Director, Physics and Ballistics, RFSL Mandi proved the lock and key, Ext. P4 and Ext. P5 to be the same that were taken into possession by the police.
48 PW25 Gurdarshan Gupta, deposed that Stated on the application of the police dated 14.1.2013, he had medically examined the appellant, who was brought injured with the alleged history of sustaining injuries during fall last Saturday.
On examination following Injuries were noted:-
1) Abrasions over poster late aspect of right elbow 1.5 X 1.5 cm. in size irregular shaped, brownish in colour.
2) Partially healed lacerated wound over forehead right side obliquely placed. Margins ragged, brownish scab present.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 383) Contusion over right zygomatic area 1 X 1.5 Inches in size, bluish in colour.
These injuries were found to be simple in nature and the .
probable duration of injuries was more than 24 hours, caused by blunt weapon. He issued MLC Ex. PW25/B. He further stated that these Injuries were possible if a person assault another person and other person resists that assault and in a scuffle by fall.
49 On being cross-examined, he denied the suggestion of that if a person consumes a tablet of diazepam or alprax in the evening and if he resisted being forcibly taken to hospital, these rt injuries could be caused. He voluntarily stated that these tablets did not have the impact of drowsiness till morning.
50 PW26 Dr. Arvind Kumar Sharma, stated that on 18.1.2013, he on the application of the police had taken the blood sample of the appellant on the FTA Card and sealed the same with seal impression of 'CH' Kangra and then handed over the same to SHO Mohinder Singh Minhas. He proved identification Form Ex.PW26/B that was written and signed by him.
51 PW27 HHC Harbans Singh proved on record FIR, Ext. PW27/A that was registered based on the statement made by the father of the deceased.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 3952 PW28 HHC Arjun proved on record handing over of 4 parcels containing blood slides, vagina swabs, etc. vide R.C. No. .
19/13, Ext. PW28/A by MHC Sampooran Singh on 28.1.2013 along with sample seals and envelope, which he deposited at FSL Junga and then on 29.1.2013 handed over the receipt to MHC.
53 PW29 HHC Onkar Chand has proved on record of handing over of 9 parcels by MHC Sampooran Singh on 28.1.2013 that were deposited by him at RFSL Dharamshala, rt but was told that the parcel containing key and lock were to be deposited at RFSL Mandi and thereafter he had taken back the parcel and on the same day i.e. 30.1.2013 deposited 7 parcels along with sample seals and docket at RFSL Dharamshala. After depositing the parcels, he had handed over the receipts to MHC.
On 2.2.2013, MHC Sampooran Singh had handed over to him two parcels containing lock and key which were deposited by him at RFSL Mandi and thereafter handed over the receipt to MHC.
54 PW30 HC Sampooran Singh was MHC at the relevant time, who proved on record the case property that was deposited with him and thereafter sent the same to concerned laboratories and receipt thereof deposited with him and since ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 40 there is no cross-examination, his testimony need not be discussed in detail.
.
55 PW31 Sanjay Kumar deposed that he knew the appellant as he had employed the appellant to look after the whole work of the office regarding pre and post-paid SIMs. In cross-examination, he stated that the appellant used to do work of filling form for SIMs.
of 56 PW32 Mangat Ram was examined to prove that he had never taken SIM No.9817220823 and that his SIM had rt never gone missing and stolen.
57 ASI Santosh Raj appeared as PW33 and stated that on 24.1.2013, records had been handed over to him for further investigation and that he had produced the appellant before the JMIC-II Palampur and obtained his specimen signatures and handwritings, which were obtained before the aforesaid Magistrate vide Ext. P5 to Ext.P20.
58 PW34 Constable Gulshan Minhas, has proved on record receipt of one envelope from MHC Sampooran Singh on 5.2.2013 along with sample seals and docket, which were deposited by him at RFSL Dharamshala and thereafter handed over the receipt thereof to MHC.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 4159 PW35 HHC Ujagar Singh, is the witness, who handed over the post-mortem report, Ext. PW22/A along with .
seven parcels bearing seals of RPGMC Tanda along with sample seal to MHC.
60 PW36 Shiva Malhotra, deposed that he was running a Photo Studio for the last 10 years being a photographer. SHO, Police Station Kangra, had given him a memory card from which of he developed photographs, Ext. PW36/A1 to Ext. PW36/A54 and prepared CD Ext. PW36/B and Ext. PW36/C and handed rt over the same to SHO.
61 PW37, Dr. Neeti Prakash Dubey, deposed that he two seals parcels that were received by the laboratory in February 2013. Parcel No.1 was a cloth packet (cardboard box) bearing eight seals of impression 'ssq. Parcel No.2 was a cloth packet bearing three seals of impression 'R'. Seals were intact and tallied with the specimen seals. Parcel No. 1 contained four exhibits each bearing one seal of impression 'ssq'. Exhibit No.1 plastic jar was stated to be containing parts of stomach and small intestine with contents marked as P/1-1, Exhibit No.2 plastic jar containing parts of liver, spleen and kidney marked as P/1-2, Exhibit No.3 plastic tube containing blood marked as P/1-3, Exhibit No.4 plastic tube containing preservative marked ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 42 as P/1-4 and Parcel No.2 containing three exhibits. Exhibit No.1 polythene packet was stated to be containing cooked rice .
marked as P/2-1, Exhibit No.2 polythene packet containing cooked mutton was Marked as P/2-2, Exhibit No.3 mala polythene packet containing Pakorey Marked as P/2-3. He examined the parcels/exhibits physically/chemically and bromadiolone (anticoagulant rodenticide) was detected in the of contents of parcels/exhibits P/1-1, P/1-2, P/1-3, P/2-1 and P/2-3, but the same could not be detected in contents of rt exhibits P/1-4 and P/2-2. Accordingly, he issued report Ex. PX.
The bromadiolone present in the cooked rice etc. was a sort of pesticide which was used to kill rats and the same was easily available in the market.
62 On being cross-examined, he admitted that if a poison is put in an uncooked material and it is cooked, then the poisonous effect of some of the poison is negated except metallic poison and pesticide. He admitted that the quantity of poison found in the cooked food had not been mentioned in the report.
He admitted that that he had given the report regarding the cooked food only, but voluntarily stated that poison was detected in the viscera of the body of the deceased. He however denied the suggestion that the poison for killing rats is not toxic ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 43 enough to kill a human being and voluntarily stated that it is highly toxic. He denied the suggestion that the type of poison .
found in the viscera of the deceased was not the same that was detected in the cooked food. He further denied that the poison was neither detected in the viscera nor in the cooked food. He lastly denied that his report was not based on scientific reasoning but was based on his personal observation.
of
63 PW38, Dr. Surender Kumar Pal was posted as
Assistant Director
rt Biology and Serology Division, RFSL
Dharamshala. He had examined five parcels that were sent to Biology and Serology Division and based on examination, the result was as under:-
Human blood of group 'A; was detected on exhibit-2a (pillow cover), exhibit 2b (cloth piece), and exhibit -8d(T- shirt/top, Archana Mahajan). Semen could not be detected on the exhibits.
Blood was detected in traces on exhibit-2c (glove), exhibit-4 (rope piece), exhibit-9 (belongings, Archana Mahajan) and exhibit-8b (lower/pajama, Archana Mahajan), but it was insufficient for serological examinations. Semen could not be detected on the exhibits.
Human blood of group 'A' was detected on exhibit-Bc (underwear, Archna Mahajan). Human semen was detected on the exhibit.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 44
Human blood of group 'A' was detected in exhibit- 7(blood sample, Archna Mahajan).
Blood and semen could not be detected on exhibit-5 .
(dupatta, Archna Mahajan), exhibit 8-a (vest, Archna Mahajan), exhibit 8e (bra, Archna Mahajan), exhibit 8-f (shawl, Archna Mahajan) and exhibit 8-g (socks, Archna Mahajan).
Hairs found in exhibit-9 (belongings, Archna Mahajan) were identified as human head hairs.
of The rope found in exhibit-4 and dupatta in exhibit-5 were strong enough for strangulation. He accordingly issued report, Ext. P38/A. 64 rt In cross-examination, he admitted that blood group mentioned at Sr. No.1 could not be individualized. He volunteered that the blood group of Archana Mahajan was found on clothes, pillow cover and underwear. He admitted that the blood group mentioned at Sr. No.4 could not be individualized. He admitted that he had not conducted DNA test to confirm that the blood sample sent by the police was that of Archana only, but voluntarily stated that he had only conducted serological examination to confirm it.
65 PW39, Dr. Tushar Sontakke has proved the treatment given to the appellant when he was admitted on 26.12.2012 at 5 A.M. with the alleged history of consumption of 10 tablets of alprazolam of 0.25 mg, per tablet.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 45
66 PW40 ASI Mehar Singh proved two diaries, Ext.
PWPA1 and Ext. PW23/C that were taken into possession vide .
seizure memo, Ext. PW19/A. 67 PW41 Madan Lal Sharma is Assistant Nodal Officer in Reliance Communication. He deposed that in January, 2013 an information was sought by SP Kangra regarding the call detail record of cell phones No. 93180-11555 (appellant), of 93181-36555(deceased) and 98172-20823 (Nishant) regarding some correspondence between SLEAC operation and SP Kangra rt was made. He had made endorsements on letters Ex.PW-41/A and Ex.PW-41/B. The call detail record pertaining to the above mentioned phone numbers with effect from 01.12.2012 to 16.01.2013 were taken through computer generated system totaling 794 pages. A certificate Ex.PW-41/D was issued by him in this regard.
68 On being cross-examined, witness stated cell phone No. 93180-11555 belonged to Mr. Rajinder Kumar S/o Sh.
Bhandari Ram R/o Vill. Kuthera, P.O. Jalari, Teh. Naduan, Distt. Hamirpur, Cell phone No. 93818-36555 belonged to Sh.
Sanjay Kumar S/o Sh. Roshan Lal R/o Bara Tikka Dhagdu, Block No. 105, Teh. Bangana, Distt. Una and cell phone No. 98172-20823 belonged to Mangat Ram R/o Sub. Teh. Kotli, ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 46 Distt. Mandi. He admitted that cell phone No. 93180-11555 was a postpaid number. He could not state that when a post-paid .
number is allotted, proper verification of the identity of that person is done. He voluntarily stated that it pertained to some other department and did not pertain to his work. He could not state that there had been conversation between Sanjay Kumar, Mangat Ram and Rajinder Kumar. He voluntarily stated that he of could only supply information regarding the phone numbers from which the calls had been received by the other numbers.
rt 69 PW42, Dy.SP Mohinder Singh Minhas, is the Investigating Officer, who narrated the entire prosecution story and the same therefore is not being reiterated.
70 On being cross-examined, he stated that the police station Kangra was informed about the incident by the police officials at Police Post Gaggal and then they had reached the spot and on receiving the information they had also reached the spot. He admitted that when he reached the spot the police from Police Post Gaggal was already present there. he admitted that Naval Bharti and Madan Lal had not been made witnesses in this case. He voluntarily stated that Sandeep had been made witness in this case. He admitted that the name of Sandeep was not mentioned in the list of witnesses. He admitted that LHC ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 47 Raksha Devi, who had seen the dead body first had not been made witness. He deposed that on 13.1.2013, he started from .
the police station at about 12.30 p.m. and reached the spot within 20 minutes. He admitted that when he reached the spot the mother, aunt(Massi), cousin brother Sourabh of the deceased and owner of the house were present on the spot, but only the mother was inside the room. The mother of the of deceased had informed that they had reached Ichhi in the evening on 12.1.2013. He denied the suggestion that no RFSL rt Team was called on the spot during the entire investigation. He voluntarily stated that Dr. Arun Sharma had visited the spot and had instructed them. He admitted that he had not been made a witness in this case. He denied that neither Arun Sharma had come to the spot nor had inspected the spot. He admitted that the police team did not take any fingerprints from the door, window, Almirah and table from the spot. He voluntarily stated that they did not find any fingerprints. He admitted that on the intervening night of 12/13.1.2013 at 12.30 a.m. when the the police party reached the spot, he did not record the statement of the mother, aunt (Massi) and cousin brother of the deceased on the spot at that time. He voluntarily stated that he first carried out the proceedings of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 48 investigation. He denied that he did not record the statement of the above witnesses as they did not have suspicion on anyone.
.
He voluntarily stated that he had asked about the incident from the mother of the deceased, on the basis thereof, he had made relevant entries in Form No. 25-35 on reaching the spot at about 1.00 a.m. He denied that the case was registered against the appellant after a lapse of about 15 hours. He denied the of suggestion that the police team had not sealed the place of crime when the dead body was taken for postmortem. They took rt about 2 to 2½ hours to complete the proceedings of the investigation on the spot. He admitted that during that 2 to 2½ hours, no food or any articles lying on the spot were taken into possession. He voluntarily stated that they had sealed the place of occurrence. He denied there was no mention of any person being left on the spot when they proceeded for post-mortem of dead body of the deceased in the entire case file. He voluntarily stated that they had left H.C. Desh Raj, Constable Nawal Kishore and HHC Madan Lal of Police Post Gaggal on the spot.
He admitted that all these police officials had not been made witnesses in this case. He voluntarily stated that they had not done any proceedings in this case, therefore, they were not made witnesses. He denied that neither none of the above ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 49 witnesses were present on the spot nor they had protected the scene of the crime. He admitted that the rented accommodation, .
which was a place of occurrence, was on the national High Way, which goes to Mandi-Dharamshala- Pathankot and there was rush of vehicles 24 hours including night. He admitted that the owner lives in that building along with other tenants. He denied that no one had seen the appellant near the place of occurrence of on 11.1.2013 after lunch and on 12.1.2013. He voluntarily stated that the owner Ram Pal had seen the appellant on the rt evening of 11.1.2013. He stated that it had not come in his investigation that a boy named Rohit had an affair with the deceased and he used to criminally intimidate the deceased and that he had not interrogated him. He was not in a position to state that on 12.1.2013, PW-4 Saurabh had a telephonic talk with PW2 Surendera Kumari, mother of the deceased. He voluntarily stated that Saurabh had gone home during that time. He denied that it had come in his investigation that the deceased had any interview at Dharamshala. He voluntarily stated that the mother of the deceased Surendera had disclosed that the appellant had told her that her daughter had gone for an interview, then her daughter had not picked up her phone and she had called the appellant. He denied that the deceased ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 50 had any interview at Dharamshala that is why he did not investigate regarding any interview of the deceased at .
Dharamshala on 12.01.2013. He admitted that the statement of the complainant was not recorded on the spot. He voluntarily stated that the statement was recorded after the post-mortem of the deceased, however, he did not remember the time. He admitted that he had not collected ATM card, one wrapper and of mobile charger immediately upon reaching the spot. He voluntarily stated that the spot was sealed and the above rt articles were collected after registration of an FIR. He denied the suggestion that later on ATM card, one wrapper, mobile charger were falsely fabricated against the appellant to implicate him and the memo Ex.PW-4/A was falsely prepared subsequently.
He admitted that PW5 Pawan Kumar uncle (chacha) of the deceased was also a witness in memo Ex.PW14/A. He did not know that PW-6 Khem Singh was a friend of Pawan Kumar. He voluntarily stated that Khem Singh was Pardhan of Gram Panchayat Dulara, District Chamba. He was not in a position to tell how many times the appellant was interrogated after his arrest till 15.01.2013. He admitted that police station Kangra where the disclosure statement was made allegedly by the appellant is in the heart of Kangra city where the Judicial ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 51 Complex and office of the Tehsildar were nearby. He admitted that except for Khem Singh and Pawan Kumar no independent .
witness from the locality was involved during the disclosure statement. He voluntarily stated that when he was interrogating the appellant, these witnesses had come to the police station to know about the case. He denied that the disclosure statement Ex.PW-42/H was the result of third-degree method of of interrogation. He denied that the place from where the alleged recovery of rope was effected was an open area that was rt accessible to the general public. He voluntarily stated that on the demarcation of the appellant, recovery of rope was effected under bushes on one side. He admitted that the place where the recovery was effected was near the national highway. He admitted that anyone could come on the national highway. He voluntarily stated that the bushes from where the recovery was made were not accessible. He denied that no effective recovery was effected on the demarcation of the appellant and later on the rope was falsely implanted against the appellant. He also denied that neither the appellant had given any disclosure statement nor any recovery had been effected on the disclosure.
He denied that no dupatta and key were recovered from an almirah near the window of his house at the instance of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 52 appellant on his disclosure and demarcation. He denied that dupatta and key were later falsely implanted against the .
appellant. He denied that Nishant was having physical relation with the deceased. He voluntarily stated that Nishant wanted to marry the deceased. He admitted that the utensils in the house of the deceased were not sent to RFSL for examination. He denied that the deceased was a girl with a modern outlook and of generally had friendship with many boys. He denied that the appellant did not have any dispute with the deceased. He rt voluntarily stated that they had some dispute between them as earlier they had an affair. He admitted that he had not taken blood sample of Nishant for DNA profiling. He denied that at the instance of father of the Nishant, he had not interrogated him in this case. He had handed over the case file to PW-14 ASI Mehar Singh approximately 3-4 times mostly for going to Hamirpur regarding the investigation. He admitted that the blood sample and the vaginal swabs were not sealed on the spot. He voluntarily stated stated that the Doctor had sealed them and handed it over to the police.He admitted that he had not obtained any certificate under section 65 of the Indian Evidence Act from the person who had developed the photographs and CD from a computer. He admitted that no recovery was made ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 53 from the house of the appellant from 13.1.2013 till 16.1.2013.
He voluntarily stated that on 16.1.2013, they had made .
recovery of photographs from the rented accommodation of the appellant appellant. He denied that he had recorded the statement of Jeevan Kumar, Pawan Kumar, Naresh and Harbans of his own just to facilitate the case of the prosecution.
He denied that all the above witnesses were the relatives of the of deceased. He further denied that note Ex.PW- 11/A was not presented by witness Rakesh to the police allegedly written by rt the appellant and memo Ex.PW-42/G was falsely prepared against the appellant. He denied that it was prepared in the presence of Vipin Kumar and Ashish Kumar. He denied that Ram Pal and Pawan Kumar were made witness later on in seizure memo Ex.PW-9/A to falsely implicate the appellant. He denied that Pawan Kumar and Khem Singh were made witnesses later on and disclosure and recovery memos were falsely made later on to implicate the appellant. He also denied that the procedure of making seizure memo, spot map and recording the statements of the witnesses was done later on. He denied that on 16.1.2013 nothing had been recovered in presence of witnesses Jagdish Chand from the rented accommodation of the apellant and memo in this regard, ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 54 Ex.PW-14/C, was falsely prepared. He denied that at the time of obtaining opinion alleged duppata and rope were not shown to .
Dr. Sushil Sharma. He also denied that the diaries Ex.PA1, Ex.PA23/C and birthday greeting card Ex.PW-23/A did not belong to the appellant and later on were planted against the him. He denied that the appellant was not involved in this case and simply on the basis of suspicion he had been falsely of implicated. He denied that statements of witnesses were recorded falsely to facilitate the case of the prosecution. He also rt denied that he did not conduct a fair investigation in this case and that the present FIR was a result of afterthought, deliberation and consultation with the family of the deceased.
He denied that he was deposing falsely being a police official.
71 PW-43 Dr. Vivek Sehajpal, Assistant Director, DNA Reports, SFSL Junga stated that four sealed parcels were received in his Division. Three parcels were sealed with seal impression of 'RPGMC Tanda' and one parcel was sealed with seal of 'CH Kangra'. Parcel-1 was containing exhibit-1 sealed with seal of 'RPGMC' Tanda. On opening the parcel, it was containing exhibit-1, having five nail clips packed inside a small plastic container. Parcel-2 was containing two sealed tubes, each bearing one seal of 'RPGMC Tanda'. Parcel containing ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 55 exhibit-2, was having two cotton wool swabs kept inside the tubes, stated to be vaginal swab. The third parcel was again .
sealed with five seals of 'RPGMC Tanda'. The parcel was containing exhibit-3, stated to be one cloth piece bearing a faint brownish stain and blood sample of deceased on gauze. The fourth parcel was sealed with three seals of 'CH Kangra', which contained exhibit-4, having one FTA card bearing brownish of stain. The exhibit was stated to be blood sample of the appellant on FTA card. DNA isolation was carried out from aforesaid rt exhibit through Organic Method, Differential extraction method and FTA protocol. DNA isolation from Exhibit- 2(vaginal swab) was carried out through differential extraction method to separate out the male and female DNA fractions. The isolated DNA was checked for quality and quantity by 0.8% agarose gel electrophoresis and ethidium bromide staining. The DNA was subjected to Multiplex PCR for co-amplification of 15 STR loci and Amelogenin Identifier Plus PCR Amplification Kit. The amplified product alongwith controls was run on automated DNA sequencer. A DNA profile laws prepared and analysis was carried out using Gene Mapper ID Software. He accordingly issued report Ex. PW-43/A, with the following conclusions:-
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 561) The DNA profile obtained from exhibit-1 containing nail clips is consistent with the DNA profile obtained from exhibit-3, blood sample of gauge of victim.
.
2) The DNA profile obtained from male DNA fraction of exhibit-2 Vaginal Swab matches completely with DNA profile obtained from exhibit-4, which is blood samples of FTA card of Chandresh Sharma.
72 As per his conclusions as regards exhibit-2 and exhibit- 4 DNA of the appellant was found in the vaginal swab of of the deceased, which was suggestive of the fact that there was sexual intercourse between the appellant and the deceased.
73rt In cross-examination, he admitted that he had not mentioned about the fact of sexual intercourse because it was not in the purview of his observation, which was actually to be given by the Medical Expert.
74 PW22 Dr. Sushil Sharma was re-examined on 29.5.2017 and stated that on on 13.1.2013, after postmortem, he had handed over sealed parcels to the Police containing viscera, blood in gauze, nail clips, two vaginal swabs, wearing clothes and parcels regarding belongings of the deceased. The police had taken opinion from him with respect to viscera report, but the police had never obtained opinion with respect to opinion of vaginal swabs, nail clips etc. As per report Ex. PW-
43/A, there was possibility of sexual intercourse with the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 57 deceased as the DNA profile obtained from DNA fraction of Ex. 2 (Vaginal swabs) matched completely with DNA profile obtained .
from Ex.4 i.e. blood samples on FTA Card of the appellant as per the report of RFSL.
75 On being cross-examined, he denied the suggestion that from the postmortem report Ex. PW-22/B, there was nothing to suggest that the deceased was subjected to forcibly of sexual intercourse. He admitted that as per the postmortem report Ex. PW-22/B, there was no other external injury present rt on the body of the deceased except neck. He however denied that he had handed over the samples of vaginal swabs and nail clips etc. directly to the police. He voluntarily stated that the samples were first sealed and then handed over to the police.
Lastly, he denied that his opinion was not based on scientific reasoning.
76 The appellant has examined three witness in his defence.
77 DW1 Sushma, stated that she used to work in the reliance office in Dharamshala in the year 2007-08 alongwith deceased Archana and had worked with her for two years. She had good relations with Archana. Archana used to live in Dharamshala. She used to study as well as was doing the job at ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 58 the Reliance office. Archana had told her that Rohit used to come to her room and threaten her. She once had gone to the .
room of Archana on being called by her, where she had noticed Archana being badly treated by Rohit, who was also sitting there in her room and things were scattered here and there. She had told Rohit not to manhandle Archana. She had taken Archana to her home, but Rohit had followed her there also.
of She had told Archana to tell about the behaviour of Rohit to her parents, but she was scared of her parents, therefore, she did rt not share this with her parents. Archana had told her that Rohit used to tell her not to talk to any other person without his permission. Archana had changed her room twice due to the fear of Rohit, but he had searched her there also. Rohit had threatened Archana in her presence. He had also threatened her for helping Archana. After some time, Archana changed her room to Kangra as she was working in the office at Kangra. She remained in contact telephonically for some time, but after some time, she changed her number.
78 On being cross-examined, she stated that she did not know about the District Headquarters of Reliance in Dharamshala. She voluntarily stated that that they were working in a shop and were given the contact number of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 59 appellant to contact him in case of any emergency or difficulty.
She stated that she had not worked in Reliance company .
anywhere outside Dharamshala. The appellant used to work in Reliance office at Hamirpur and he used to come to their office for imparting training etc. The appellant had come to their office twice, when she had met him. She denied that there was no office of reliance in Dharamshala in the year 2007. She stated of that there were two girls only i.e. she and the deceased working in Dharamshala office. She feigned ignorance as to whether the rt appellant used to like Archana and stated that she never disclosed about him. She stated that she did not know that Archana, Nishant and the appellant sued to meet daily. She admitted that it was the mother of the appellant, who approached her to state some facts in the case.
79 DW2 Rajbansh stated that he is a private civil contractor and knew the appellant, who was his neighbour at Purana Mataur. He had met the appellant last time on 11.1.2013 to invite him for Lohri to have food with them. On 11.1.2013, when the appellant met him he told that he was not well and was going to his residential quarter.
80 On being cross-examined, he stated that he had not gone to the room of the appellant to see whether he was there or ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 60 not. He admitted that he could not tell whether the appellant had come late night that evening or not and the time when the .
appellant had returned at night.
81 DW3 Jeevan Kumar, deposed that he was running a 'dhaba' at Ichhi. He knew the appellant because quarter of the appellant was in front of the dhaba and often appellant used to get food packed from the dhaba. On 11.1.2013, he had seen the of appellant going with one more person near his dhaba as at that time, he was opening dhaba. He further deposed that some girl rt used to live in that quarter. He had seen one girl and the appellant going in front of the dhaba during lunchtime at about 02:30 PM. He did not know who was that girl. He further stated that at about 6:30 PM, he noticed one girl going alone from the chowk when he was in his dhaba and thereafter, he did not see anything, and at about 09:30 PM he left for home.
82 On being cross-examined, he stated that the girl referred to above used to live in the house of Ram Pal as a tenant, which was nearly 50 meters away from his dhaba. He admitted that in January it gets dark at 05:30 PM and it is not possible to recognize the person in the dark from a distance of 50 meters. He however deposed that apart from attending to the customers having food, he used to keep vigil on the person(s) ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 61 going on the road also. He could not tell that after 5:00 PM whether the appellant had again gone to the quarter of that girl.
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83 As observed above, the instant case is one of circumstantial evidence, but we find that there are major lapses in the prosecution case as would be evident from further discussion.
84 The evidence reveals that the police had reached at of the spot within 20 minutes i.e. before 12.00 midnight. The situation at the spot indicated that it was a case of homicide.
rt The mother of the deceased (PW2), her sister-in-law, and nephew Saurav (PW4) were already present on the spot after breaking open lock of the room. Once cognizable offence had been made out, it was incumbent upon the Investigating Officer to have recorded statements of any of the aforesaid persons under Section 154 Cr.P.C. and thereafter registered an FIR, but no such statement was recorded. There is no reason or explanation given by the Investigating Officer.
85 This assumes importance because FIR in the instant case came to be registered only on the next day at 4:00 P.M. after more than 16 hours that too after preparing the inquest report and conducting postmortem. The time elapsed cannot, ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 62 as rightly argued by the learned counsel for the appellant, rule out the possibility of manipulation.
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86 It is the case of the prosecution that when the Investigating Officer along with his team reached the spot, three police officials of Police Post Gaggal were already present at the spot. It was with the assistance of Lady HC Raksha Devi that the dead body of the deceased was examined and the of Investigating Officer proceeded to prepare the inquest report. In the inquest report, Ext.PW42/B besides giving details of the rt position of the dead body, the version as narrated by mother (PW2) and cousin (PW4) of the deceased finds mentioned. It is specifically mentioned that the statements of the witnesses were also recorded, however, no such statement was placed on record, which compels the Court to draw an adverse inference.
87 After all, whose statements were recorded and why those were withheld and not made part of the investigation record? Why none of these statements were not sent to the police station as rukka for registration of an FIR?
88 In the absence of any explanation coming on record, the only inference that can be drawn is that the statements did not suit the investigating agency and were, therefore, deliberately withheld from the court casting a serious doubt in ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 63 the prosecution story. Moreover, none of the aforesaid three police officials have been examined in the case about position of .
the place of crime, more especially, articles lying there. After all, those police officials were the best witnesses, who could depose about the fact situation on the spot.
89 As per the prosecution case, poison in the form of rodenticide was found in Pulao and Pakoras lying in the room of of the deceased, but surprisingly no investigation was conducted by the Investigating Officer to ascertain as to who had rt purchased the poison, wrapper whereof was found lying in the deceased's room. When and from which shop it was purchased was also not ascertained. After all, Ichhi is a small village and this fact could have been easily ascertained.
90 It needs to be remembered that in case of poisoning, it is absolutely essential on the part of the investigating agency to complete the chain of circumstantial evidence given the fact that there are different versions even with the rodenticide alleged to have been used in the instant case. PW4 described rodenticide to be "rat killer" while Investigating Officer PW42 claimed that it was "Hit Kills Rats". At about 12:30 P.M., the deceased asked her cousin (PW4) to bring green peas from the market. He in addition to green peas also got Pakoras. The ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 64 deceased after coming back from her office cooked Pulao, which was consumed by Nishant (PW7), the appellant, the deceased .
and Saurav (PW4). When these items were sent for chemical analysis, poison was detected in Pulao. If that be so then whether other persons excluding the deceased suffered any reaction has not at all been investigated.
91 Evidence further reveals that cooked mutton was of also found in the room of the deceased, however, no poison was detected in the mutton, but was detected in the pakora, which rt as per prosecution and as admitted by PW4 was brought by him.
92 That apart, it has come in the investigation that the articles lying in the room were taken into possession only on the next date i.e. 13.1.2013 that too in the evening after registration of an FIR at 4:00 P.M. 93 What was the reason for not taking into possession the left-out articles including food items lying in the kitchen, which were subsequently taken on 14.1.2013 i.e., 3rd day, that too, without taking fingerprints from objects and utensils lying in the room and kitchen, is not at all forthcoming, which, in itself, creates a grave suspicion in the prosecution story. It was incumbent upon the Investigating Officer to have lifted ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 65 fingerprints from the spot and this would have gone a long way to nab the culprit.
.
94 Even call details record, Ext. PW41/C in the absence of proof of identification of the mobile number of the appellant is of no avail to the prosecution. PW41 Mandan Lal Sharma has simply placed CDR on record and has not stated anything about the location of even identified numbers. In the absence of any of proof of linking the appellant with mobile No. 93180-11555, the CDR loses its significance. It was incumbent upon the rt prosecution to prove that the appellant was using the aforesaid mobile number. The mere fact that the mobile number was not being used by the person, in whose name the same was registered, would not automatically suggest much less mean that it was the appellant, who had been using the same.
95 What is still worse is that there is no substantive evidence on record to prove this fact because the Investigating Officer has not even cared to take into possession the mobile phone of the appellant nor established that it was being used by him during the period in question.
96 The learned trial court has gone astray by assuming that the mobile number was being used by the appellant only ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 66 because the same was not being used by the person in whose name the same was registered.
.
97 It is the prosecution case that Nishant (PW7), another friend of the deceased, had sex with the deceased on the previous night on 10.1.2013, but his blood samples were not taken nor was any investigation on the role of Nishant was conducted, which is indicative of the fact that the investigation of was conducted with a pre-conceived or closed mind.
98 Apart from the above, we are of the considered view rt that the investigation in this case is far from being fair. This is evident from the following circumstances: -
I. The Investigating Officer did not record the statement under section 154 Cr.P.C immediately upon arrival at the spot and took time to register the FIR only after 14 hours.
II. The Investigating Officer withheld the statements of witnesses recorded during inquest proceedings.
III. The Investigating Officer did not investigate or ascertain the factum of the interview, which the deceased was to attend at Dharamshala on 12.1.2013. Had he investigated so, reasons subsequently introduced through the testimony of PWI, PW2 and PW4 for suspecting the involvement of the appellant may not have been there.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 67
IV. The Investigating Officer did not take blood samples of Nishant (PW7) for the purpose of DNA test .
V. Lady HC Raksha Devi who assisted the Investigating Officer in examining the dead body and was aware of the spot position was not examined.
VI. The Investigating Officer did not care to investigate the role of Rohit and without conducting any investigation deposed that Rohit was not of involved in this case. Even the role of other friends and colleagues who frequently visited the deceased had not been investigated.
rt 99 Apart from the above, so-called incriminating material, cognizance of which was taken by the learned trial court, could not have been used against the appellant because it was not put to him under Section 313 Cr.P.C. for the purpose of seeking his explanation. In this behalf, the circumstances, the cognizance of which was taken against the appellant and were not put to the appellant are enumerated below: -
I. Reason disclosed by PW1, PW2 and PW4 that the appellant misled them by stating that she had gone to Dharamshala for an interview. II. There is no evidence of last seen but Ld. Trial Court on the version of I.O (who could not be a witness of last seen) has taken cognizance of last seen.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 68
III. The learned Trial Court based on an improved and doctored version of PW4, cousin (though he has not specifically stated so) has recorded that .
appellant was frustrated because of Nishant (PW7) relationship with the deceased; therefore, it was the motive for him to commit the offence.
IV. Report of DNA was just stated to be received. But the specific question that "your DNA has matched and what you have to say in this regard"
of has not been put to him, hence it cannot be used against him.
V. rt No question was put to the appellant that he was using Mobile No.93180-11555. Note Ext.PW11/A which was produced by PW Rakesh Kumar before 1.0 was allegedly taken out from the pants of the appellant at his residence. But no question in this behalf was put to the appellant under section 313 Cr.P.C for seeking his response. Hence it cannot be used against him.
VI. While interpreting the Call Detail Records, the learned Trial Court on its own has observed in detail regarding the timings of the conversation between Nishant, the deceased and the appellant, but the question of timings of the conversation, etc. was not even put to appellant u/s 313 Cr.P.C.
VII. Although CDR or oral testimony of PW Madan does not reveal the location of the appellant nor connect the appellant in any manner, but learned Trial Court on its own has taken that his location at ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 69 Icchi is proved. But this question was not even put to appellant u/s 313 Cr.P.C. for seeking his explanation.
.
VIII. The allegation that the handwriting of the appellant in note PW11/A matches with his admitted handwriting. But no such question was put to the appellant under section 313 Cr.P.C. IX. Similarly, no question was put to the appellant u/s 313 Cr.P.C. that you have committed sexual of intercourse without consent when she was under the effect of intoxication on account of poisoning. X. rtAfter framing the charge for an offence under section 376 IPC, neither any evidence was led, nor any opportunity of cross-examining the witnesses already examined qua this charge was afforded to the appellant. Commission of offence u/s 376 IPC was not put to the appellant u/s 313 Cr.P.C consequent to farming of Change subsequently.
100 In a landmark judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 (4) SCC 116, the Hon'ble Supreme Court held that the circumstances, which were not put to the appellant in his examination under Section 313 Cr.P.C., must be completely excluded from consideration because he did not have any chance to explain them.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 70101 The legal position has thereafter been reiterated in one of the latest judgments of the Hon'ble Supreme Court in .
Kalicharan vs. State of Uttar Pradesh (2023) 2 SCC 583, wherein it was observed as under: -
27. Questioning an appellant under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the appellant must be explained the circumstances appearing in the evidence against him so of that the appellant can offer an explanation. After an appellant is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence rt witnesses and leading other evidence. If the appellant is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the appellant will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself.
28. In paragraph 21 of the decision of this Court in the case of Jai Dev v. State of Punjab, it was held thus: -
21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060: AIR 1953 SC 468] . In that case, this Court has no doubt referred to the fact that it was important to put to the appellant each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 71 observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the appellant person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The .
examination of the appellant person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the appellant person. It would not be enough to put a few of general and broad questions to the appellant, for by adopting such a course the appellant may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the rt appellant person detailed questions which may amount to his cross- examination. The ultimate test in determining whether or not the appellant has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the appellant person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the appellant person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the appellant person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material." (Emphasis added) ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 72 29 In paragraph 145 of the well-known decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, it was held thus:
.
"145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."
(emphasis supplied) of 102 The learned trial court has considered and thereafter rt taken following thirteen circumstances to convict and sentence the appellant: -
(1) From the direct evidence adduced by the prosecution i.e. PW-1 Sudesh Mahajan, PW-2 Surendra Kumari, PW-3 Sangeeta Thapa, PW-4 Sourav Mahajan and PW-7 Nishant, it has been proved on record that appellant Chandresh and deceased were very close to each other and Chandresh used to visit her room very often. On 11.1.2013, he also visited her room in the morning, in the afternoon and also at night, thus, last seen has been proved by these witnesses as both Nishant and Saurav had left the spot and only the deceased and appellant were left there. It is also proved on record that Nishant now had a relationship with the deceased, which the appellant did not like, because, he loved Archana, but, there is no evidence that Archana also still loved the appellant. The appellant was in a habit of taking drugs and had lost his job four days before the incident.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 73
Therefore, he was already frustrated and had all reasons and motive to commit the offence.
(2) The circumstantial evidence, which includes the .
telephone call details between the deceased and the appellant and between deceased and Nishant with telephone locations of all three of them, proves the location of the appellant at the place of incident at the time when the incident had occurred and the presence of Nishant is negated as his location was found to be of Hamirpur and of Sourav had left for Chamba and had reached in his house at 6.00 p.m. (3) The recovery of "Dupatta" and plastic rope with which the appellant had strangulated the deceased, which was rt made at the instance of the appellant on the basis of his disclosure statement made under Section 27 of the Indian Evidence Act, which is also proved by the witnesses to the disclosure statement. The appellant had concealed the "Dupatta" in the almirah and had thrown the plastic rope in the bushes near the Mount Carmal School. The disclosure statement also stands proved.
(4) The key of the lock was got recovered after the confession of the appellant from the window of the kitchen of the room of the deceased, which proves that he had locked the room of the deceased and had concealed the key, recovery of which had been got done by the appellant and the dead body of the deceased was found from the locked room.
(5) The food articles i.e. cooked rice, mutton Pulao and Pakouras, which were recovered from the room of the deceased, were sent for chemical examination and in the report of the Chemical Examiner, it was found that the rat ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 74 killer poison (rodenticide) was mixed in the cooked food of Archana and also from inside the stomach and intestine as well as viscera of the deceased and this rat killer was .
also recovered from her room, which establishes that the deceased was intoxicated with poison of rodenticide rat killer.
(6) Further, the postmortem report confirms that the deceased was also killed by strangulation with the help of rope and "Dupatta". Further, from the report of Chemical of examiner, it was found that the deceased was killed under intoxication bromadiolone by strangulating her with rope and "Dupatta" and she was sexually assaulted and strangulated when she was still alive, but, under rt intoxication of poison i.e., rat killer.
(7) Forensic reports show that the key so recovered at the instance of the appellant is the key, which can lock and unlock the lock, which was found on the door of the room of deceased, in which, her dead body was found. The forensic report also establishes the handwritings of the appellant on the letter Ex. PW-11/A and diaries of the appellant, which was written by the appellant, when, it matches with the admitted handwriting of the appellant.
(8) The inner garments of the deceased containing blood stains, which were oozing from her private parts of the deceased, further confirms the sexual assault on the deceased.
(9) The medical of the appellant confirms that he had received injuries 2-3 days before, which can be caused in a scuffle if a person resists any assault as the deceased was strangulated on the left side by putting pressure from backward and the appellant had received injuries on the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 75 forehead on the right side. He had also received injuries on the elbow, which might have been received by applying force during the assault on the deceased. These injuries .
on the person of the appellant, also remained unexplained.
(10) There is no evidence led by the defence nor any witness has been examined to show that Archana also loved appellant. Therefore, it is love triangle and the knowledge of the appellant that Nishant is involved with Archana, was the motive to kill Archana, because, he of could not see anyone else loving Archana. (11) DNA report also proves that the DNA of the appellant was found on the vaginal swab of the deceased, which is a conclusive proof regarding any sexual assault on the rt deceased by the appellant, because, the deceased was involved with someone else, therefore, it would not have been consensual. Moreover, the deceased was under
intoxication of poison administered to her in the food by the appellant, therefore, no question of consent arises as the appellant had made her helpless with predetermined mind to kill her and if there had been any consent, then, there would not have been any reason for the appellant to kill Archana. The report of DNA as proved by the prosecution is the conclusive proof that sexual assault has occurred with Archana before her death as DNA profiling is the latest technique and is a perfect science. (12) The conduct of the appellant on seeing Nishant in the room of the deceased that he had become very sad and he asked brother of deceased (PW-4) Sourav Mahajan that whether they had committed something wrong together, then calling the deceased by the appellant again and again that day. The conduct of the appellant after the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 76 incident that he had not eaten anything and he asked food from his friends in the morning when they came to him nearly about 10.00 O'clock and he was drunk and .
was smoking badly as his room was full of smoke. The friends have also testified that he was under intoxication and was not able to stand himself, therefore, his mother told them to drop him at Hamirpur.
(13) On the other hand, the defence taken by the appellant that Rohit was earlier involved with the deceased, could of not be established on record. DW-2 Rajbansh does not know the name of his uncle in his evidence and has been shattered. He cannot tell as to at what places, he went to after lunch time. He had also gone to Ghurkari and other rt places. He had stated that he did not go to the room of the appellant to see, whether he was there and had admitted that he could not tell whether the appellant had gone somewhere late at night in the evening or not. Similarly, DW-3 Jeewan Kumar has established that the appellant was with a girl at lunch time in his Dhaba at about 2.30 p.m., which also establishes that the appellant person was the last person seen with the deceased. In his cross- examination, he stated that in the dark, he could not see more than a distance of 50 meters and the house of Chandresh was more than 50 meters away. He has also testified that he cannot say that after 5.00 p.m., Chandresh again had gone to the quarter of the girl or not.
103 Father (PW1), mother (PW2) and cousin ((PW4) of the deceased suspected involvement of the appellant solely on the ground of his responding to the telephone call made by PW2 ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 77 when he stated that the deceased had gone to Dharamshala for an interview, whereas as per prosecution case, she was lying .
dead at that time.
104 This could be at best a strong suspicion, but could not have formed basis for conviction of the appellant as the same does not appear to be well founded for the following reasons.
of 105 The learned Trial Court in Sub-para 1 of para 82 of the judgment has recorded that "on 11.01.2013 he (appellant) rt also visited her room in the morning, in the afternoon and also at night thus last seen has been proved by the witness as both Nishant and Saurav had left the spot and only, deceased and appellant were left there."
106 This finding of the Trial Court is absolutely incorrect and contrary to the evidence on record. Evidence on record in this behalf is the testimony of PW4 Saurav cousin of the deceased, which reads as under: -
"Archana made a telephonic call at 12 noon to get green peas and at about 1 PM, I with peas and Pakoras went to her quarter. There I found appellant, person, Nishant and Archana. Arcahna cooked rice Baranj and we all four took the same and we all four came to Ichhi bus stop. Arcahnawent to her office. Nishant left for Hamirpur. I and appellant came together upto Gaggal.::: Downloaded on - 10/10/2023 20:36:16 :::CIS 78
107 In cross examination also he again stated that after taking meal, all four came out of her residence to their .
respective destinations.
108 The next witness, who could have stated about presence of appellant, is PW9 Ram Pal (Landlord), but he has not stated anything and has rather not supported the prosecution case. Similarly, PW10 is immediate neighbor of of deceased Archana and she states that "I did not notice the appellant person at Ichhi on 10.01.2013 and 11.01.2013". On rt the other hand, it has come in the testimony of PW14 Jagdish Chand, who is landlord of appellant at Purana Mataur that "on dated 11.02.2013 at 3.00/4.00 pm appellant came through main gate to his room. I enquired from him about his health, but he replied that he was not feeling well and want to take rest." In cross examination, he also states that "After Chandresh came home on 11.01.2013, I did not see him leaving the room till next date."
109 There is no evidence whatsoever on record that in the evening or night of 11.01.2013, appellant was seen with deceased at Ichhi. It is also relevant to point out here that PW16 Rajnish Area manager of Reliance Co. who was boss of deceased (Archna) has specifically stated in 7th line of his statement that ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 79 "she worked till 6 PM on 11.01.2013". It proves that deceased was in her office till 6 PM and may have proceeded to her .
residence only thereafter.
110 Hence, the findings recorded by Trial Court about last seen are contrary to the evidence on record. In this behalf, Trial Court has rather picked up a line in the testimony of Investigating Officer. PW42 who voluntarily states that "the of owner Ram Paul has seen the appellant in the evening of 11.01.2013". Whereas, PW9 Ram Pal has not stated anything in rt this behalf. Statement of Investigating Officer was not admissible.
111 In this behalf inadmissible evidence of PW42 Investigating Officer has been relied by Trial Court, without even noticing that it was not worth putting to the appellant u/s 313 Cr.P.C being not proved. Deceased made her last call to mother PW2 at 8 PM, when she stated that she was eating Branj, meaning thereby she took her dinner at about 8 PM and till that time, she was alright.
112 In sub para 1 of para 82, it is also recorded by Trial court that the appellant was frustrated after deceased developed relations with Nishant, therefore he had all reasons and motive to commit the offence. But, there is no evidence whatsoever to ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 80 prove it. This observation of the trial court is simply based on its own assumption.
.
113 Evidence on record reveals that deceased was very bold and frank lady. Her friends and colleagues used to visit her residence. It is so stated by PW4 her cousin.
114 DWI Smt. Sushma, who was colleague of deceased in Dharamshala has specifically stated that "one Rohit use to tell of her not to talk to any other person without his permission.
Archana had changed her room twice due to fear of Rohit to avoid rt him. But Rohit had searched her there also. Once I had gone to room of Archana, where I saw that she had been treated badly by Rohit".
115 PW2 mother of deceased in her cross-examination (4th line) has specifically stated that "I know Rohit. It is correct that Rohit used to trouble my daughter".
116 DWI colleague of deceased has stated that Archana had never told me that Chandresh used to insist time and again to get married with him. Therefore, story introduced by prosecution that the appellant wanted to marry her is not at all established. Moreover, appellant was knowing her relationship with other friends, even father, mother and her friend (PW1, PW2 and PW3 respectively) who were well aware of the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 81 appellant's friendship with deceased have not stated that the appellant wanted to marry her.
.
117 The Trial Court in absence of any cogent evidence has taken and accepted it as one of proven incriminatory circumstance against the appellant that too without even putting it to the appellant under section 313 Cr.P.C.
118 Under sub- para 2 of para 82 of the judgment much of reliance has been taken of call detail records (CDRs) of the deceased, appellant and Nishant. It is observed that these CDRs rt prove location of appellant at the place of incident.
119 However, these findings are contrary to the evidence on record. Deceased was putting up at Ichhi, whereas appellant's residence was at Purana Mataur.
120 As per story of prosecution it is alleged that the appellant Chandresh was using sim bearing No. 93180-11555, but record reveals that neither the mobile nor the SIM was recovered or taken into possession to prove that the same was being used by the appellant.
121 No evidence oral or otherwise is on record to connect the appellant with this number. No witness has stated that appellant was using this number. Even PW21, Rajinder Kumar, in whose name sim card bearing no. 93180-11555 was found ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 82 registered during investigation, has not supported the case of prosecution. He has simply stated that he came to know from .
the police that appellant was using this sim. His knowledge is based on police information. Even Investigating Officer is silent on this aspect and does not even state that the appellant was found using this number.
122 Mere Mentioning of the mobile number in the FIR by of PWI (father of deceased) would not suffice, more particularly when he in his statement before the court stated that "I did not rt know the telephone number of appellant." Moreover, this question has not been put to the appellant under section 313 Cr.P.C by asking him that he was using phone number 93180- 11555.
123 In view of the above position, in absence of any linking evidence/material on record, CDRs have no relevance.
Otherwise also PW41 Madan Lal Nodal officer has simply placed on record the CDRs of three phone numbers given to him by the police. He neither stated anything qua location of these numbers nor linked the appellant with one of these numbers.
124 The evidence of CDR in absence of link evidence connecting appellant with the alleged number is liable to be ignored/ discarded.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 83125 In sub-para 3 of para 82 of the judgment, the Ld. Trial court has recorded that the disclosure statement stands .
proved and further recovery of dupatta and plastic rope at the instance of appellant is also proved.
126 This finding also appears to be wrong and incorrect as in this case key witnesses associated to prove prosecution version are PW5, uncle (chacha) of deceased and his close friend of PW6 Khem Singh. Both are from Chamba. No locals were associated for the reasons best known to the Investigating rt Officer. PW5 Pawan Kumar in his examination-in-Chief states that: -
"On 15.01.2013. I came to police station where the police was enquiring from the appellant person as to where he had kept the articles. The police than took me and Khem Chand to a place on the back side of the spot. The appellant person had told he had thrown the plastic rope there. The appellant was then taken to the room. The appellant then produced one dupatta."
127 PW5 Pawan Kumar is absolutely silent regarding recovery of plastic rope. His above version indicates that the place was probably already known. His version further reveals that the appellant was taken to the room and he produced one dupatta. This witness does not state that dupatta was recovered ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 84 at the instance of appellant from almirah of deceased which is otherwise the prosecution story. This witness does not state .
anything about the place near Mount View School wherefrom the alleged recovery of rope is shown. In cross examination, this witness states that "it is correct to suggest that appellant person had not made any disclosure statement." This version of the key witness has falsified the prosecution story in respect of so called of disclosure statement as well as recovery of rope and dupatta at the instance of appellant. His testimony is contrary to PW6, who rt states that the rope was recovered from near Mount View School and even qua disclosure statement has given an altogether different story. Moreover, the so-called place of recovery was an open place adjoining the main road.
128 As per sub para 4 of para 82, it is recorded that the key of the lock was got recovered after confession of the appellant from window of the kitchen. which proves that the appellant had locked the room of deceased.
129 This finding again is without any basis because the prosecution case is that key was recovered consequent to disclosure statement, however the same is not proved by cogent evidence. Witnesses are absolutely silent about this. The Trial Court observed that it was recovered on the basis of confession.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 85If that be so, then the recovery is not admissible being based on confession. There is no evidence on record that the appellant .
had locked the room of deceased. Even if it is assumed that after locking the door, key was kept inside the window, even then the further question as to why the finger prints of the key were not taken is not at all forthcoming.
130 Moreover as per PW4, the key used to be kept inside of window. Once that be so, then the role of PW4 cousin also creates doubt as to why he had not searched for the key inside rt the window when he was aware of the same and then where was the need to break open the lock.
131 In sub para 5 of para 82 of the judgment, it is recorded that cooked rice, mutton, pulao and pakoras were recovered. Further it is also recorded that rat killer poison was found mixed in the food, which proves that the deceased was intoxicated with poison rodenticide.
132 However, report reveals that poison was found in Pakoras and Baranj (Pulao) only and not in mutton. Who had brought the mutton in the evening as it was not in lunch has at all not been investigated. No explanation from Investigating Officer has come on record.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 86133 On the other hand, evidence on record reveals that PW4 cousin of deceased on her asking had brought green peas .
and pakoras at about 12.0. clock on 11.01.2013, whereafter deceased cooked Pulao/rice and all four deceased, Nishant, Appellant and Saurav took lunch together. No investigation has been conducted as to who had brought the poison and from where, whereas this could have easily been ascertained.
of 134 Pakoras, which were brought by Saurav (PW4), were found to be containing poison, but yet no investigation was rt carried out in this regard qua the role of PW4, who was knowing that deceased was an adopted daughter of his Taya and thus not within his blood relations.
135 The circumstance of poisoning in absence of any evidence connecting appellant therewith could not have been used against the appellant.
136 In sub para 6 of para 82 of the judgment, it is recorded that deceased as per Post mortem was killed under intoxication by strangulation with the help of rope and dupatta and was sexually assaulted before her strangulation when she was alive.
137 However, as per evidence on record, both rope and dupatta individually were strong enough for strangulation. Once ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 87 that be so, then the possibility of either of the two being planted cannot be ruled out and rather creates a serious doubt .
about the prosecution case.
138 As per post mortem report no external injuries were found on the body of deceased except ligature mark on her neck. No sign of sexual assault. Inquest report as well as medical evidence on the record does not support sexual assault.
of Merely because the Doctor had stated on the basis of the report of DNA that there was possibility of sexual intercourse with the rt appellant would not prove that before strangulation she was sexually assaulted, especially when he could not tell the exact duration from the time the vaginal swab had been collected.
139 In absence of clinching evidence of sexual assault immediately before her death it could not be assumed solely on the basis of so called DNA report which otherwise is only corroborative and not conclusive (as would be discussed later on).
140 In sub para 7 of 82 of the judgment, in concluding lines it is recorded that handwriting of appellant on the letter Ex PW11/A and diaries which are allegedly written by appellant matches with the admitted handwriting of the appellant.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 88141 In this regard we may firstly notice that the so-called letter Ext.PW11/A which is stated to be written by appellant .
has not been recovered from appellant or from his room. It, in fact, has not been proved by any direct evidence that it is written by appellant. How and in what manner it happened to be with PW Rakesh Kumar, who of his own handed it to the police on 14.01.2013, when appellant was in custody also, does of create a serious doubt. Secondly, the opinion of hand writing expert cannot be taken to be a conclusive proof to prove that it rt was written by appellant only given the manner in which the letter is alleged to have been recovered.
142 Apart from the above, the recovery of written note PW11/A as alleged by the prosecution has not been put to the appellant under section 313 Cr.P.C. Hence it is of no significance to the prosecution case and could not have been used against the appellant. Handwritings on diaries have also not been proved, hence opinion of the experts based thereon is liable to be discarded.
143 In sub para 8 of para 82 of the judgment it is recorded that inner garments of the deceased contained blood stains, which was also oozing from her private part, further confirms the sexual assault on the deceased.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 89144 We have considered this aspect in detail and are of the considered view that even this finding is not supported by .
the evidence on record, which reveals that the dead body of the deceased which was lying on a cot was found to be fully clothed.
The blood stains were found on underwear of deceased as is apparent from inquest report Exbt.PW42/B prepared on the spot. Inquest report also reveals that no external injuries were of found on the body except on neck as noticed by I.O. and witnesses present on the spot. Post mortem report also ruled rt out sexual assault as no indication qua the same was found while examining the dead body. In absence of any proof of blood oozing out from private part of the deceased, the version given by PW2 and PW42 I.O. to the contrary was clearly an improvement and thus, liable to be discarded.
145 It also needs to be noticed that the prosecution has not examined the lady H.C Raksha, in whose presence the body was examined at the spot. Similarly, the three police officials of police post Gaggal, who had already reached at the spot before arrival of I.O. (PW 42) have also not been examined. Hence, findings of Trial Court that the evidence confirms the sexual assault are not supportable for want of conclusive evidence.
::: Downloaded on - 10/10/2023 20:36:16 :::CIS 90146 Under sub para 9 of the para 82, the Trial court has taken the cognizance of three minor injuries on the person of .
appellant to come to the conclusion that the appellant had received injuries in a scuffle with the deceased.
147 This observation/finding as recorded by the Trial Court does not appear to be based upon any material but appears to be based upon mere assumption, more particularly, of in view of the MLC of the appellant, Ext.PW25/B, wherein the injuries found on his person were minor. One injury partially rt healed over forehead was apparently old. Moreover, the Doctor has specifically stated that injury Nos.1 and 3 were unlikely to have been caused by nails. Further, it is also stated that these injuries could have been caused by fall.
148 Above all, no explanation qua sustaining the injuries has been sought from the appellant u/s 313 Cr.P.C. Hence no cognizance thereof could have been taken against the appellant.
149 Even the finding as recorded under sub para 11 of para 82 that DNA of appellant was found on the vaginal Swab of the deceased and was thus a conclusive proof of sexual assault on the deceased by the appellant appears to be based on mere assumption. Firstly, it ought to be remembered that that DNA is not conclusive test and is only corroborative as held by the ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 91 Hon'ble Supreme Court in Prakash Nishad vs. State of Maharashtra, AIR 2023 SC 2938.
.
150 Secondly, it has specifically come in the statement of PW38 Dr. Surinder Kumar Pal that semen was detected on the underwear of the deceased, but could not be individualized to be that of the appellant as no DNA test was conducted to confirm the same and this underwear was not even sent for of conducting DNA and what was sent for DNA vide Ext.IV was blood samples of the appellant, which, in no manner could have rt established commission of sexual intercourse, that too, at the time and place, as alleged by the prosecution.
151 Apart from the above, this important incriminating circumstance of matching of DNA with vaginal swabs has not been specifically put to the appellant under section 313 Cr.P.C.
for seeking his explanation. This too is again a serious lapse, hence DNA report could not have been used against the appellant.
152 Similarly, the observations of the Trial Court made in sub paras 12 and 13 of para 82 in respect of conduct of appellant after occurrence appear to be perverse. The evidence on record does not show any abnormality in his conduct so as ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 92 to jump to a conclusion as has been done by the learned trial court.
.
153 Further, the finding in concluding lines of these sub paras that the appellant was last seen with the deceased, as already discussed above, is absolutely wrong and contrary to the evidence on record.
154 It would be noticed that initially the appellant was of charged under Section 302 IPC, however subsequently after matching DNA, charge under Section 376 IPC IPC was also rt framed, however after framing the charge no further evidence was led to substantiate the same.
155 What is more glaring is that the appellant was not even examined under Section 313 Cr.P.C. for the subsequent charge. Hence, no cognizance of the same could have been taken against the appellant in absence of affording him an opportunity for furnishing reasonable explanation. In view of the settled law (supra), hence his conviction under Section 376 IPC was absolutely illegal.
156 In view of the aforesaid discussions and in the given facts and circumstances, it can conveniently be held that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Therefore, the impugned ::: Downloaded on - 10/10/2023 20:36:16 :::CIS 93 judgment and order of conviction and sentence passed by the learned trial court are set aside. Consequently, the appellant, in .
the instant case, is ordered to be released immediately, if not required in any other case.
157 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, rt which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
158 The instant appeal is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 10.10.2023 Judge (pankaj) ::: Downloaded on - 10/10/2023 20:36:16 :::CIS