Himachal Pradesh High Court
Hema Ram vs State Of Hemachal Pradesh on 8 May, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 223 of 2009
Reserved on: May 06, 2015.
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Decided on: May 08, 2015.
Hema Ram ......Appellant.
Versus
State of Hemachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Umesh Kanwar, Advocate.
For the respondent: Mr. M.A.Khan, Addl. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 23/26.05.2009, rendered by the learned Sessions Judge, Shimla, H.P. in Sessions Trial No. 16-S/7 of 2008, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Sections 302 IPC, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for one year.
2. The case of the prosecution, in a nut shell, is that Hitender Kumar was posted as Asstt. Lineman, in the HPSEB at Drabla, Sub Section. On 3.7.2008, at about 8:30 AM, Hitender Kumar left from his house for duties to Drabla and did not return in the evening and also till the evening of 4.7.2008. On 4.7.2008, at about 11:00 PM, PW-5 Devloo Ram, resident of Village Malyan, telephonically informed his brother PW-1 Tikhu Ram, that one dead body was lying in Jug Forest, upon which PW-
::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 21 alongwith his elder brother Hukmi Ram proceeded to the forest in search of his brother Hitender Kumar. But, they could not locate the .
dead body in the forest and they returned back. On the following day, PW-1 alongwith PW-4 Kamlesh Kumar, his brother Hukmi Ram and Mathu Ram proceeded to the Jungle in search of his brother Hitender Kumar. During their search, they found that Hitender Kumar was lying dead facing downward at a distance of 100-120 meters down from the path in the Jungle. Hitender Kumar had suffered injuries on his head and forehead, apparently caused with heavy object. PW-1 telephonically informed PW-12 Deep Ram, who in turn informed the police. The police reached the spot and recorded the statement of PW-1 Tikhu Ram under Section 154 Cr.P.C., vide Ext. PW-1/A. The FIR was registered vide Ext.
PW-19/A. PW-23, proceeded with the investigation of the case and inspected the dead body of Hitender Kumar. He took photographs of the spot and also prepared the site plan. The articles lying near the body were seized and taken into possession. PW-23 also lifted blood with cotton swab from the spot. The dead body was sent for post mortem examination. The post mortem on the dead body was conducted by PW-
24 Dr. Piyush Kapila. The report is Ext. PW-24/B. According to the report, the deceased died as a result of gross head injury leading to laceration of brain and death. The accused was arrested. Disclosure statement was recorded vide Ext. PW-6/B, on the basis of which, the recoveries were effected. The case property was sent for chemical ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 3 examination. On completion of the investigation, challan was put up after completing all the codal formalities.
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3. The prosecution, in order to prove its case, has examined as many as 24 witnesses. The accused was also examined under Section 313 Cr.P.C. He specifically denied the incriminating circumstances put to him. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Umesh Kanwar, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. M.A.Khan, Addl. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 23/26.5.2009.
5. We have heard learned counsel for both the sides and gone through the records of the case carefully.
6. PW-1 Tikhu Ram, deposed that his brother was posted as Asstt. Lineman in HPSEB. On 3.7.2008, his brother Hitender Kumar, left for his duties to Drabla. He did not return from his duties in the evening.
He also did not return from his duty till the evening of 4.7.2008. On 4.7.2008, at about 11:00 PM, PW-5 Devloo Ram, resident of Village Malyan, telephonically informed him, that one unknown person was lying in Jug Forest. He alongwith his elder brother Hukmi Ram proceeded to the forest in search of his brother Hitender Kumar. But, they could not locate the person who was lying in the forest and they returned. On the ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 4 following day, he alongwith Kamlesh Kumar, his brother Hukmi Ram and Mathu Ram proceeded to the Jungle in search of his brother Hitender .
Kumar. During the search, they found that Hitender Kumar was lying dead by his face downward at a distance of 160/170 feet down from the path in the said Jungle. Hitender Kumar had suffered injuries on his head and forehead. It appeared that he had been inflicted injuries with some heavy object. The police was informed. The police reached the spot. He further deposed that on 4.7.2008, at 11:00 PM, while Devloo Ram informed him telephonically that there was a person lying in the jungle. He also informed him that in the evening of 3.7.2008, Hitender Kumar, Kamlesh Kumar and Hema Ram were together at Baldian and all the three were proceeding downwards. The police reached the spot and recorded the statement Ext. PW-1/A. In his cross-examination, he admitted that Devloo Ram is the father-in-law of his brother Hitender Kumar. Atma Ram is the brother-in-law of Hitender Kumar. The house of Devloo is at a distance of 5-6 km. from his house. The house of Devloo Ram is at a distance of about half kilometer from the place where dead body was found. They did not inquire about the whereabouts of Hitender Kumar during the night intervening 3rd and 4th July, 2008 because sometimes, he was deputed on night duty. He reiterated in his further cross-examination that only Devloo Ram had disclosed on telephone on 4.7.2008 at 11 PM that a person was lying in Jug Jungle and blood was also lying there. He received the telephone of Atma Ram after one hour ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 5 after receipt of the telephone of Devloo Ram on 4.7.2008. He admitted in his cross-examination that the path below on which the dead body was .
found in Jug Jungle, is sloppy and rocky in the shape of Dhank (cliff).
7. PW-2 Kamlesh Kumar, deposed that he had gone in search of Hitender Kumar with PW-1 Tikhu Ram. In his cross-examination, he admitted that Hitender Kumar and Hema Ram were not inimical to each other. Both of them were friends. The land was sloppy but not steep.
The land was not rocky. There were no stones from the path where blood was lying up to the dead body of Hitender Kumar.
8. PW-3 Const. Tek Singh, has apprehended the accused from the rain shelter alongwith his cousin Bal Krishan.
9. PW-4 Kamlesh Kumar, is the most material witness. He knew accused Hema Ram from his childhood. He also knew Hitender Kumar from childhood. On 3.7.2008 at about 7-7:30 PM, Hema Ram accused and Hitender Kumar both together met him at Baldian. Both were drunk and were under the influence of liquor. Both of them asked him to bring bottle of country liquor and to purchase the said bottle of liquor Hema Ram handed over to him Rs. 70/-. They also asked him to accompany them. He brought the bottle from the liquor vend and handed over to Hema Ram accused. He accompanied Hema Ram accused and Hitender Kumar towards his house. When they reached in the next bazaar of Baldian, Hema Ram accused purchased two disposable glasses and Namkieen from the shop of Rakesh Kumar alias Bhaiya. All of them ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 6 proceeded from the said shop together towards their houses. When they were proceeding on a path through the forest named Jug Jungle, they .
stopped near a water tank. At that place, both Hema Ram and Hitender Kumar took liquor. He did not take liquor. Both of them consumed about 3/4th bottle of liquor. While they were taking liquor, he asked both of them to proceed to their houses as they were getting late. They walked on the path for about 15-20 minutes and reached a curve at place Dudladhar in the jungle. Both of them stopped at the said place and wanted to take more liquor.
r He asked them to proceed further, upon
which, Hema Ram accused abused him. At that time, Hema Ram
accused was in anger and also abused him and Hitender Kumar. He also threatened Hitender Kumar by saying that he would see him. Thereafter, he left the spot alone. On the following day, at about 8/8:30 AM, he came to Baldian on his duty from his house. When he was proceeding through the same path to Baldian, Devloo Ram, father in law of Hitender Kumar alongwith his wife met him at place curve of Dudladhar, where he had left Hitender Kumar and Hema Ram accused on the previous evening. He disclosed to Devloo Ram that in the previous evening two persons were sitting there taking liquor and abusing each other. He had disclosed that they were Hitender Kumar and Hema Ram. Thereafter, they left for their own houses and he left for his duty. On 5.7.2008, he was called by SHO, PS Dhalli and upon asking, he disclosed to him about the occurrence which was witnessed by him. From SHO he came to know that Hitender ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 7 Kumar had died. In his cross-examination, he admitted that the dead body was found below the kenchy more (curve) on the path where he had .
left their company. When he started from Baldian, Hitender Kumar was heavily drunk and was not walking properly. While he was walking on the steep path, he was unable to walk properly and walking with jerks by holding grass and bushes. The jungle below the kenchy more (curve) was sloppy having trees and stones.
10. PW-5, Devloo Ram deposed that on 4.7.2008 at about 8:15/8:30 A.M., he was returning to his house from Baldian.
r He was alone. While he was proceeding to his home through a path which passes from Jug-Ka-Jungle, PW-4 Kamlesh Kumar met him at place Dudladhar.
He was proceeding from Baldian for his work. He disclosed to him that on the previous evening two persons, namely Hema and Hitender were sitting there on the path taking liquor. He asked about as to whether they have reached home or not. PW-4 had left the spot. On 4.7.2008 at about 8:00 p.m., his son Atma Ram came back. He asked Atma Ram to telephone at the house of Hitender Kumar and enquire as to whether he had reached home or not. It was disclosed on telephone to Atma Ram by PW-1 Tikhu Ram that Hitender Kumar had not come neither on 3rd nor on 4.7.2008.
During the night, they remained at home. On 5.7.2008 at about 5:00 a.m, he received a telephone of PW-1 and his daughter. They disclosed that the dead body of Hitender Kumar was found in the jungle. He alongwith his son and other persons proceeded to the spot. The police reached the ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 8 spot and prepared the inquest papers vide memo Ext. PW5/A. The police took into possession bag Ext. P1, folding umbrella Ext. P2, two diaries .
Ext. P3 and P4 alongwith passbook Ext. P5. The blood stained hair were also taken into possession. The police had lifted the blood from the scene of occurrence. In his cross-examination, he deposed that he along with PW-4 Ramesh Kumar remained at the spot named Dudladhar for about 10-15 minutes. There was no blood or any other symptoms of struggle or quarrel. He reached at his house at about 9:00 a.m., in the morning. He did not try to enquire about the whereabouts of Hitender Kumar. He did not ring or talk to Tikhu on the night of 4.7.2008. Volunteered that his son Atma Ram had talked. The place in front of path was sloppy having rock and forest trees. Tikhu Ram told him in the morning of 5.7.2008 that the dead body of his son-in-law was found.
11. PW-6 Khem Raj deposed that the accused made disclosure statement vide Ext. PW6/B, on the basis of which, recoveries were effected. He signed the memo along with Besar Dass. The accused got recovered the clothes stained with blood.
12. PW-7, Bal Krishan deposed that on 5.7.2008 before 1:00 p.m., Hema Ram accused met him at village Jagalru near nullah. Hema Ram had handed over a key of the lock of his room.
13. PW-8, Atma Ram is the brother-in-law of the deceased. He deposed that on 4.7.2008 at about 10:00 a.m., his father came home from Baldian bazaar. Kamlesh disclosed to his father that some quarrel had ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 9 taken place between Hema Ram and Hitender Kumar. In the evening, his father asked him to telephone at the house of Hitender Kumar and .
enquire about his welfare. He rang him up. The phone was attended by PW-1 Tikhu Ram. He talked with his sister. He enquired the whereabouts of his brother-in-law Hitender Kumar. His sister disclosed that Hitender Kumar had not come home for the last 2-3 days. He had seen blood in the path in Jug Jungle. He telephoned to them at about 9:30 p.m. On the next morning, the dead body of Hitender Kumar was recovered.
14. PW-11 Besar Dass has deposed the manner in which the disclosure statement was made by the accused vide memo Ext.PW6/B and he signed the same. The recoveries were made on the basis of disclosure statement made by the accused.
15. PW-12 Deep Ram has informed the police of police post Mashobra.
16. PW-13 Dr. Soma Negi has examined the accused and issued MLC Ext.PW13/B.
17. PW-14 Rakesh Kumar deposed that Hitender Kumar was an employee of the electricity department. In the rainy season on 3rd of that month of 2008 at about 8:00 p.m., Hema Ram accused along with accused Kamlesh Kumar came to his shop and purchased Namkeen and two disposable glasses.
::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 1018. PW-15 HHC Subhash Chand deposed that he received telephone of Deep Ram son of Rattan Dass to the effect that dead body of .
Hitender Kumar, his brother-in-law, was lying in Jug Jungle.
19. PW-16 HHG Chander Mohan deposed that he along with SHO left for the spot of incident. The statement of PW-1 Tikhu Ram was recorded by the SHO vide memo Ext. PW1/A.
20. PW-18 HC Shiv Kumar deposed that the case property was deposited with him. He entered the same in malkhana register. The case property was sent through Constable Sant Ram to FSL Junga.
21. PW-21 Constable Sant Ram deposed that he had taken 13 sealed parcels to FSL Junga.
22. PW-23 Insp. Manohar Lal deposed that he received a telephone message from P.P. Mashobra at about 6:45 a.m., that dead body of Hitender was lying in Jug Jungle. He deputed SI Shyam Sunder, to the spot. He along with other staff reached at the spot. The dead body was lying facing downwards. It had injury marks on the head. He recorded the statement of Tikhu Ram under Section 154 Cr.P.C. vide memo Ext.PW1/A. He prepared the site plan. The case property was taken into possession. In his cross-examination he admitted that when they visited the spot, the stone was got recovered by the accused on 9.7.2008. He had removed Section 34 IPC against the accused and Kamlesh as during the investigation, it was found that Kamlesh had left accused Hema Ram and deceased Hitender. Except Kamlesh, nobody told ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 11 him that Kamlesh had left the company of accused Hema Ram and deceased Hitender.
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23. PW-24 Dr. Piyush Kapila has issued post mortem report Ext.
PW24/B. According to the final opinion the deceased died as a result of gross head injury leading to laceration of brain. In his cross-examination he admitted that at 316.25 mg % urine alcohol concentration, the person can loose his equilibrium and balance and can fall. He also admitted that the chances of loosing balance and inconsequence of that falling from height are more in case of the heavy alcohol concentration than in a normal person. He also admitted that there were more chances of fall with the concentration of 316.25 mg% if the path is sloppy and narrow.
24. The case of the prosecution, precisely, is that the deceased left his house at 8:30 PM on 3.7.2008. The deceased did not return home on the evening of 3rd and 4th July, 2008. On 4.7.2008, as per the averment contained in rukka Ext. PW-1/A, at about 11:00 PM, Atma Ram son of Devloo Ram telephoned PW-1 Tikhu Ram and told that the dead body was lying at Jug jungle. Then, they went in search of their brother.
However, when PW-1 Tikhu Ram appeared in the Court, he testified that on 4.7.2008, at about 11:00 PM, PW-5 Devloo Ram, resident of Village Malyan, telephonically informed him, that one unknown person was lying in Jug Forest, upon which he alongwith his elder brother Hukmi Ram proceeded to the forest in search of his brother Hitender Kumar. Devloo Ram is the father-in-law of his brother Hitender Kumar. Atma Ram is the ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 12 brother-in-law of Hitender Kumar deceased. Thus, according to PW-1 Tikhu Ram's statement in the Court, PW-5 Devloo Ram told him that the .
dead body was lying in Jug Jungle. However, PW-5 Devloo Ram, categorically deposed that he asked his son on 4.7.2008 at 8:00 PM to telephone at the house of Hitender Kumar and enquire whether he had reached home or not. It was disclosed on telephone to Atma Ram by PW-
1 Tikhu Ram that the deceased has not come home. He has also admitted in his cross-examination that he did not ring Tikhu Ram on the night of 4.7.2008.
r PW-8 Atma Ram also deposed that on 4.7.2008, at 10:00 AM, his father came home from Baldian bazaar. In the evening his father asked him to telephone at the house of Hitender Kumar and enquire about his welfare. He accordingly telephoned to the house of Hitender Kumar. However, according to the statement made under Section 154 Cr.P.C. by PW-1 Tikhu Ram, it was Atma Ram, who has told him about the body lying in the forest.
25. PW-1 Tikhu Ram, as noticed above, testified that PW-5 Devloo Ram has informed him about the incident. PW-5 Devloo Ram stated that it was his son who informed Tikhu Ram. PW-8 Atma Ram also deposed that he contacted PW-1 Tikhu Ram. An important information has been supplied to Tikhu Ram about the dead body lying in the Jug Jungle. The deceased has not come home in the evening of 3rd July, 2008 and also in the evening of 4th July, 2008. The family members of the deceased have not made any efforts to find out the whereabouts of the deceased. The ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 13 only explanation given by PW-1 Tikhu Ram is that at times, he was put on night duty. There is no contemporaneous material placed on record to .
establish that Jitender Kumar deceased was put on night duty on 4.7.2008.
26. The father-in-law of the deceased PW-5 Devloo Ram was apprised by PW-4 Kamlesh that he had seen Hitender and Hema Ram fighting at a particular spot. If that was so, it was expected from PW-5 Devloo Ram to contact his daughter who was residing only at a distance of 5 kms. from his house. He waited till evening and only told his son on 4.7.2008 at night to inquire about the whereabouts of Hitender Kumar.
The conduct of PW-5 Devloo Ram is not the one which is expected from a normal person. Rather the conduct of PW-5 Devloo Ram is not worth credence. He should have made inquiries since PW-4 Kamlesh Kumar in his statement has stated that he has told PW-5 Devloo Ram that he has seen Hema Ram and deceased abusing each other. The normal human conduct of PW-5 Devloo Ram and PW-8 Atma Ram would have been to reach the house of the deceased to know about his whereabouts instead of waiting till 5:00 AM.
27. PW-4 Kamlesh Kumar was in the company of accused and Jitender Kumar deceased. His version is that the deceased and Hema Ram were taking liquor and were intoxicated. They asked him to bring bottle of country liquor and to purchase the bottle of liquor Hema Ram handed over to him Rs. 70/-. They also asked him to accompany them.
::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 14He brought the bottle from the liquor vend and handed over to Hema Ram accused. He accompanied Hema Ram accused and Hitender Kumar .
towards their houses. When they reached in the next bazaar of Baldian, Hema Ram accused purchased two disposable glasses and Namkieen from the shop of Rakesh Kumar alias Bhaiya. In his cross-examination, he admitted that when he started from Baldian, Hitender Kumar was heavily drunk and was not walking properly. While he was walking on the steep path, he was unable to walk properly. He was walking with jerks by holding grass and bushes. The jungle below the kenchy more (curve) was sloppy having trees and stones.
28. The quantity of ethyl alcohol found in the blood sample of deceased was 316.25 mg %. PW-24 Dr. Piyush Kapila, in his cross-
examination has admitted that at 316.25 mg % urine alcohol concentration, the person can loose his equilibrium and balance and can fall. The deceased died due to gross head injury leading to laceration of brain. Since the deceased was heavily drunk and was going down the steep path, the possibility of his fall from the height cannot be ruled out, more particularly when his body was recovered at a distance of more than 100 meters below the path.
29. Mr. M.A.Khan, learned Addl. Advocate General has vehemently argued that the accused was last seen in the company of deceased by PW-4 Kamlesh Kumar. It has come in the statement of PW-2 Kamlesh Kumar that the accused and deceased were not inimical to each ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 15 other but were friends. While relying upon the theory of 'last seen together', all the circumstances have to be taken into consideration .
including the relationship of the deceased with the person last seen together. The case in hand is based on circumstantial evidence. There is no eye witness. There is variance in the statements made by PW-1 Tikhu Ram, PW-5 Devloo Ram and PW-8 Atma Ram about the inquiries made about the whereabouts of the deceased and who telephoned PW-1 Tikhu Ram.
30. The statement of PW-4 Kamlesh Kumar, does not inspire confidence for the simple reason that he was also made accused in the case at one point of time. His name was subsequently struck off, as per the statement of PW-23 SI Manohar Lal, only on the ground that he had left Hitender Kumar and Hema Ram at a particular spot and gone to his house. Nobody has told him except Kamlesh Kumar that he had left the company of accused Hema Ram and deceased Hitender Kumar and gone home.
31. Mr. Umesh Kanwar, Advocate, appearing on behalf of the accused has drawn the attention of the Court to Ext. PW-23/E, FSL report of the viscera, whereby the quantity of ethyl alcohol in urine was found to be 316.25 mg%. According to Ext. PW-24/C, final opinion of Dr. Piyush Kapila, the deceased died due to gross head injury leading to laceration of brain in case of consumption of alcohol. The doctor has noticed urine alcohol concentration i.e. 316.25 mg%. The prosecution ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 16 has failed to prove the case against the accused beyond reasonable doubt.
There are major contradictions, embellishments in the statement of .
witnesses. The conduct of PW-1 Tikhu Ram of not searching his brother till 4.7.2008 and the conduct of PW-5 Devloo Ram, who despite claiming that PW-4 Kamlesh had told him about the fight between the deceased and the accused in the morning of 4.7.2008, has not made inquiries from his daughter, is not worth belief.
32. Mr. M.A.Khan, Addl. AG, has also argued that the blood stained clothes of the deceased were recovered and has also drawn the attention of the Court to Ext. PW-23/D, report of FSL, whereby human blood was found on exhibit-1, 5, 6(a), 6(b), 8(a), 8(b) and 8(c).
33. Their lordships of the Hon'ble Supreme Court in the case of Parkash vrs. State of Karnataka, reported in (2014) 12 SCC 133, have held that when the blood stained clothes are recovered, a serological comparison of blood of deceased and appellant and blood stains on his clothes was necessary and that was absent from evidence of prosecution.
In this case, the prosecution has sought to prove that blood group of deceased was AB and blood stains on appellant's seized clothes also belong to blood group AB. This does not lead to any conclusion that bloodstains on appellant's clothes were those of deceased's blood. There are millions of people who have blood group AB and it is quite possible that even appellant had the blood group AB. Thus, merely since clothes of appellant were bloodstained and stains bore same blood group as that ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 17 of deceased, circumstances could not be used against the appellant.
Their lordships have further held that in a case of circumstantial .
evidence, there has to be some degree of trustworthiness and certainly about existence of circumstances. It has been held as follows:
"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood stained clothes were already seized by the police and kept on the table. We are not sure whether the actual statement made by Shivanna has been lost in translation.
41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB.
45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution."
34. Their lordships of the Hon'ble Supreme Court in the case of Ashok vrs. State of Maharashtra, reported in 2015(4) SCC 393, have ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 18 held that 'last seen together' itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between the .
accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt. In the instant case, we have already noticed that the relations of accused with the deceased were cordial. Their lordships have held as under:
"8. The "last seen together" theory has been elucidated by this Court in Trimukh Marotiu Kirkan v. State of Maharashtra, (2006)10 SCC 106, in the following words:
"22. Where an accused is alleged to have committed rthe murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him."
9. In Ram Gulab Chaudhary v. State of Bihar, (2001) 8 SCC 311, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy.
10. In Nika Ram v. State of H.P., (1972) 2 SCC 80, it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a "Khukhri"
::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 19and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.
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11. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715. In this case this Page 10 10 Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused.
12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarized as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of Indian Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of Page 11 11 weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt.
20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of last seen together theory so as to shift the burden of proof on the accused-appellant. In light of this, the prosecution has evidently failed to prove the guilt of the accused-appellant beyond doubt. Therefore, the appeal is allowed and the judgment and order passed by the High Court as also by the Trial Court are set aside. The appellant is directed to be released forthwith if not required in connection with any other case."
35. Their lordships of the Hon'ble Supreme Court in the case of Bhim Singh and another vrs. State of Uttarakhand, reported in (2015) 4 SCC 281, have held that there should not be any snap in the ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 20 chain of circumstances and if there is a snap in the chain, the accused is entitled to benefit of doubt. Their lordships have held as under:
.
"22. In the present case, the guilt or innocence of the accused has to be adduced from the circumstantial evidence. The law regarding circumstantial evidence is more or less well settled. This Court in a plethora of judgments has held that when the conviction is based on circumstantial evidence solely, then there should not be any snap in the chain of Page 22 22 circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. Gurpreet Singh v. State of Haryana (2002) 8 SCC 18 is one of such cases. On the question of any reasonable hypothesis, this Court has held that if some of the circumstances in the chain can be explained by any other reasonable hypothesis, then the accused is entitled to benefit of doubt. But in assessing the evidence, imaginary possibilities have no place. The Court considers ordinary human probabilities.
23. On circumstantial evidence, this Court has laid down the following principles in Sharad Birdhichand Sardar v. State of Maharashtra, (1984) 4 SCC 116:
"(1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved and, (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Whenever there is a break in the chain of circumstances, the accused is entitled to the benefit of doubt; State of Maharashtra v. Annappa Bandu Kavatage (1979) 4 SCC 715."
36. In the instant case, there was no eye witness and the case is based on circumstantial evidence. It is the duty of the prosecution to link ::: Downloaded on - 15/04/2017 18:08:30 :::HCHP 21 the accused with the alleged incident. The prosecution could not link the entire chain of events. It is settled law that in a case based on .
circumstantial evidence, the chain must be complete and the circumstances should point towards the guilt of the accused. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
37. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 23/26.5.2009, rendered by the learned Sessions Judge, Shimla, H.P., in Sessions trial No. 16-S/7 of 2008, is set aside.
The accused is acquitted of the charges framed under Sections 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.
38. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
May 08, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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