Himachal Pradesh High Court
Asha Devi vs State Of Himachal Pradesh on 8 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 558 of 2016 Reserved on: 01.08.2023 .
Date of decision: 08.08.2023
Asha Devi ...Appellant
Versus
State of Himachal Pradesh ...Respondent
Coram
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
rt Whether approved for reporting? Yes.
For the Appellant : Mr. Surinder Thakur, Advocate-cum-
Legal Aid Counsel.
For the Respondent: Mr. Anup Rattan, A.G. with Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs., Mr. J. S. Guleria, Dy. A.G and Mr. Rajat Chauhan, Law Officer.
Tarlok Singh Chauhan, Judge.
The appellant has been convicted under Sections 302 and 201 IPC and aggrieved thereby has filed the instant appeal.
2. The case of the prosecution in brief is that on 01.07.2012 at about 4:40 P.M., some unknown person informed Police Post Saproon that a dead body was lying in a vehicle near the LIC office. To verify the veracity of such information, ASI Dharam Sain Negi (PW-28) and S.I. Nishant Kumar (PW-34) alongwith other police officials went to the ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 2 spot. There Smt. Vandana wife of the deceased Sushil Kumar, who was working as a teacher in Pine Grove School, Kasauli, got recorded her statement under Section 154 Cr.PC. Ext.
.
PW7/A. She stated that she was married in the year 1989 with the deceased Sushil Kumar. They have two daughters Kavya and Nabhya who were studying in Pine Grove School. She too was residing in the residential quarter of Pine Grove School.
of Her Husband was working as A.G.M. in B.S.N.L., Solan and he used to come at about 9:00 a.m. from Kasauli in his vehicle rt bearing No. HP-14B-1718 to join his duty and come back in the evening at about 8:00/9:00 p.m.
3. On 30.06.2012, at about 12:00 p.m., during day time, the complainant's husband had gone to Solan in his vehicle and had not returned till 9:30 p.m., upon which she called her husband from her mobile No. 94180-08800 on her husband mobile No. 94184-08800, and her husband informed that he was sitting with his friend and would come back shortly. however, when he did not return by 11:00 p.m., she again enquired from her husband, he again replied in the same manner that he would come back. However, again when her husband did not return by 3:10 a.m. on 01.07.2012, she again called him up, then he replied that he had proceeded from Solan and would reach in half an hours time. Thereafter, his mobile phone was switched off.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 34. The complainant remained waiting but her husband did not turn up even on the next day i.e. 01.07.2012 till lunch time. It is then that she alongwith her daughter .
Nabhya went in search of her husband and when they reached the B.S.N.L. office, Solan at about 4:30 p.m., then they saw a vehicle of her husband parked near the road. When she peeped into the vehicle, she saw her husband was lying dead of in the back seat and his intestines were coming out from the stomach. There were many wounds over his body and there rt were huge blood stains thereupon. On raising hue and cry, many people assembled there, out of whom, someone informed the police and then the police came to the spot. She stated that her husband had been killed knowingly and intentionally. Her statement Ext. PW7/A/rukka was sent through HC Parveen Kumar (PW-17) to the Police Station and on the basis of this Rukka FIR Ext. PW25/A was registered in the police Station Sadar, Solan. The Rukka was endorsed in the Police Station vide endorsement under red circle in Ext.PW7/A.
5. Initially, the case was investigated by ASI Dharam Sain, thereafter by SI Nishant Kumar and Inspector Chaman Lal. In the investigation of ASI Dharam Sain, he got prepared the spot map of the vehicle where it was parked vide Ext.
PW1/A from Krishan Dutt Sharma, J.E. Municipal ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 4 Committee, Solan (PW-1) and the same was taken into possession vide memo Ext. PW1/B in the presence of Naresh Kumar and HC Hem Raj. Site plan was forwarded by the .
Executive Officer of the M.C., Solan vide his letter Ext. PW1/C. ASI Dharam Sain had noticed that the dead body of Sushil Kumar was lying in the back seat of Scorpio Car bearing No HP-14B-1718 in half naked condition having several wounds of on the stomach, chest, arm and private parts. The vehicle was unlocked. It was noticed that the button of the shirt of the rt deceased were opened and his underwear and trouser were also put off till his knee. On the foot mat, window panes, roof, seat of the vehicle there were blood stains. The clothes of the deceased were badly soaked in the blood. Photographs Ext.
PW20/A-1 to Ext. PW20/A-19 except photographs Ext. PW20/A-
11, Ext. PW20/A-14 and Ext. PW20/A-19 were the photographs that were taken at the spot. He also filled form No. 25.35(1)(a)(b) Ext. PW28/B and Ext. PW28/C and sent the dead body vide docket Ext. PW12/A to the M.S. District Hospital, Solan for postmortem.
6. A Board comprising Dr. Lalit Gupta, Dr. Sandeep Jain and Dr. Vinod Bhardwaj, was constituted and conducted the postmortem of the deceased Ext. PW12/B and the viscera was also preserved. In the opinion of the doctors who conducted the autopsy of the dead body, the deceased had ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 5 died due to shock as a result of multiple injuries over the body including injuries to lungs, heart, private parts by sharp edged weapon and all the wounds seems to be antemortem. Viscera .
alongwith the sample of the urine, blood, clothing, pubic hair, urethral wash preserved and handed over to the police for chemical examination.
7. After the receipt of the FSL report from Junga, final of opinion from the team of the doctors was obtained on the postmortem report vide Ext. PW12/D vide which it was opined rt that as per the report of the chemical examiner ethyl alcohol was detected in the contents of parcel P/7 and traces of the same were also detected in the contents of parcel P/3, P/6 and P/8. The quantity of the ethyl alcohol in the contents of the parcel P/4 and P/5 was as under:-
P/4 (blood): 324.61 mg%
P/5 (Urine): 324.87%
8. No poison was detected in the contents of these parcels. The final opinion remained the same. The dead body of the deceased was handed over to his brother vide memo Ext. PW5/A in the presence of the witnesses Kuldeep Mehle and Virender Singh. Dead body of the deceased Sushil Kumar was searched upon which pocket two currency notes amounting to Rs. 100/- each were recovered and sealed in a parcel with seal impression 'X'. The same was taken into ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 6 possession vide memo Ext.PW8/B in the presence of Ram Singh and Aman Sethi. Sample of the seal as also withdrawn on a piece of cloth Ext. PW8/A and after use of the seal, it was .
handed over to the witness Aman Sethi.
9. The vehicle of the deceased was got inspected through Forensic Expert from FSL, Junga and Finger Print Bureau, Bharari. On 02.07.2012, Dr. Vivek Sehajpal preserved of four vials, water bottle swab, spit swab from the front door, right glass and left glass swabs of the vehicle bearing No. HP-
rt 14B-1718. He has also prepared 7 vials, blood from roof, rear seat left side, boot window, space floor, left rear door, right rear door, floor under rear seat, spit from front left door (outside). He also preserved hair, pieces of rexin of the seat and sealed these articles in two parcels with seal having impression 'I' and took the same into possession vide memo Ext. PW2/B in the presence of HC Sohan Lal and ASI Bihari Lal and on the day Inspector Rahul Sharma, In-charge Finger Print Bureau, Bharari also lifted the chance print from the vehicle sealed in an envelope with seal having impression 'T' and handed over the same to the police vide memo Ext. PW2/C in the presence of Sohan Lal.
10. On the same day a pint of liquor Make Solan No. 1, two unbreakable glasses, a mineral water bottle (brand name Kinley), two goggles (Raybans), one hair band, a ladies ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 7 umbrella, two scrap books, a wallet containing currency notes of Rs. 455/-, driving licence of the deceased, PAN card, membership card, three I cards, Voter I card, registration card .
Fortis, PAN card of Vandana, ATM of PNB, visiting card, receipts, one ATM PNB unused, one leather belt, one RC and foot mat were sealed in a parcel with seal having impression 'R' and the same were taken into possession vide memo Ext.
of PW1/E in the presence of HC Sohan Lal and ASI Bihari Lal.
Finger prints Ext.PW4/A-1 to Ext. PW4/A-6 were taken from the rt vehicle and certificate of the Inspector Rahul Sharma that he had handed over the six chance prints that had been lifted to SI Nishant Kumar vide memo Ext. PW4/C and the report Ext.
Ext.P4/B was handed over to the I.O. The Vehicle bearing No. HP-14B-1718, in which the body of Sushil Kumar was stated to be lying was taken into possession vide memo Ext.PW8/C in the presence of witnesses Ramesh Singh and Aman Sethi.
11. On 02.07.2012, footage of the hotel VASUZ FLAVOUR Resort, Galog, converted in the form of CDs Ext. P-
31 and Ext. P-32 were taken and sealed in a parcel with seal impression 'A' vide memo Ext. PW9/A in the presence of witnesses Ajit Kumar and C. Pawan Kumar and the same were handed over to Navin Kumar, Manager of the Resort. It had come in the investigation that deceased Sushil Kumar with his ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 8 friend Sanjeev Sharma, owner of PIAGGIO Three Wheeler Agency, Deonghat had gone in his vehicle to the VASUZ FLAVOUR RESORT on 30.06.2012 in the evening. The Resort .
had CCTV cameras inside and outside the premises. The CCTV footage between 30.06.2012 after 6:00 p.m. till 01.07.2012 6:00 a.m. had been seen and in this footage Sushil Kumar could be seen entering the Resort with his friend and of thereafter consumed liquor. At about 1:53 a.m. Sushil Kumar is seen to be parking his vehicle in the Resort parking and from rt this vehicle Sushil Kumar and Asha Devi (Appellant) can be seen coming out. These two persons were identified by Ajit Kumar, JTO, BSNL, Naveen Kumar, Manager of the VASUZ Resort and C. Pawan Kumar. CDs of the CCTV footage of the Resort are Ext.P-31 and Ext. P-32.
12. The call details of Mobile No. 94184-08800 of Sushil Kumar were obtained, which revealed that on 30.06.2012 there were constant calls from the Mobile of the deceased on Mobile Nos. 94184-62940 and 94180-27937. Call details of these numbers and village address was obtained and it was found that Mobile No. 94184-62940 was in the name of the appellant Asha Devi, whereas Mobile No. 94180- 27937 was though found to be in the name of Sanjeev Sharma, but the same was being used by Asha Devi.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 913. It is on the basis of the call details and the CCTV footage that the I.O. raised suspicion that the appellant could be involved in this case. When the police reached at the .
residential quarter of the appellant at place Aanji on 01.07.2012, she was not found there and stated to have gone to her village Karoli.
14. The appellant was arrested on 03.07.2012 and in of the investigation conducted it was transpired that the appellant was engaged in the BSNL on contract basis by the rt deceased in the year 2008 and the contract was terminated in the year, 2012. Thereafter, the deceased Sushil Kumar had got her re-employed in PIAGGIO Agency, Deonghat belonging to his friend Sanjeev Sharma. It was further revealed that the appellant was involved in a physical relation with the deceased.
15. It is the further case of the prosecution that during the course of interrogation of the appellant, she got recorded her disclosure statement Ext. PW11/A in the presence of Krishan Lal and Nand Lal wherein she stated that in the morning of 01.07.2012 she had taken the mobile phone of the deceased from his vehicle and opened its cover, battery, SIM and had thrown the same and she could get recovered these articles. On the basis of her statement, she got recovered body of the mobile Nokia and its battery near Ganpati Bottle ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 10 Store, Rabon, which were sealed in a parcel with seal impression 'H' and taken into possession vide memo Ext.
PW11/B in the presence of the witnesses. But the SIM card and .
the back portion of the body of the mobile could not be recovered.
16. On 05.07.2012, the appellant got recorded her disclosure statement Ext. 11/D in the presence of Krishan Lal of and Nand Lal and stated that she put her shirt, salwar, duppatta into a carry bag, which she was wearing in the rt intervening night of 30.06.2012/01.07.2012 and got burnt these in a forest near Shalaghat and could demarcate the place where she burnt these articles. On the basis of this statement, she led the police party in the forest area near Kararaghat, where the ashes of the burnt clothes, a hook of bra and a part of the green colour cloth half burnt recovered and sealed into a parcel with seal impression 'X', which was taken into possession vide memo Ext. PW3/A. Controlled samples were also taken.
17. On the same day i.e. 05.07.2012, the appellant got recorded her disclosure statement Ext. PW11/F before the police where she stated that she could make the recovery of slipper that she had been wearing on 30.06.2012 that had been concealed in her residential quarter. Her statement was recorded in the presence of Mukesh Kumar and Krishan Lal ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 11 and thereafter she led the police and got recovered a pair of slipper V-shape which was sealed in a parcel with seal 'E' and was taken into possession vide memo Ext. PW11/J in the .
presence of witnesses Mukesh Kumar and Krishan Lal.
18. On 07.07.2012, the appellant identified the spot and memo of the demarcation was also prepared. Parcel containing residue of the burnt clothes, unburnt clothes, a of hook of the bra, controlled samples, parcel containing slipper, parcel containing mobile of deceased Sushil Kumar were sent rt to FSL, Junga. It had come in the investigation that at the time of incident the Mobile of Asha Devi was with her. The messages were transmitted to her Mobile No. 94183-62536 deciphered. Mobile phone of Asha Devi was also sent to FSL, Junga, for forensic opinion.
19. The report of the Forensic expert received in the police station. As per forensic report:
i. Identical DNA profile was obtained from Exhibit-Elc (swab from right glass). Exhibit-E2a (blood from roof). Exhibit-E2b (blood from boot window). Exhibit-
E2c (blood from boot space floor), Exhibit E2d (blood from left rear door), Exhibit-E2e (blood from right rear door), Exhibit-E2f (blood from under rear seat), Exhibit-2d (rexin), Exhibit-8 (nail clipping, Sushil Kumar) and this profile matches completely with the DNA profile obtained from Exhibit-9 (blood sample, Sushil Kumar).
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 12ii) Exhibit Ela (swab from water bottle) yielded mixed DNA profile from which two DNA profiles could be interpreted,one DNA profile match with the DNA profile obtained from Exhibit-9 (blood sample, Sushil .
Kumar) and other profile matches with the DNA profile obtained from blood sample of Asha Devi, received as Exhibit-5, vide letter No. 4075/5A dated 09-07-2012 (SFSL report No. 1012C/SFSL/DNA(80)/12 dated 31.08.2012). iii) The DNA profile obtained from Exhibit-E2g (spit from lift front door) pertains to male of and does not match with the DNA profile obtained from Exhibit-9 (blood sample, Sushil Kumar) and with the DNA profile obtained from blood sample of Asha rt Devi, received as Exhibit-5 vide letter No. 4075/5A dated 09-07-2012 (SFSL Report No. 1012/SFSL/DNA (80)/12 dated 31-08-2012). iv) The partial DNA profile obtained from Exhibit-Eld (swab from left glass) matches with the DNA profile obtained from Exhibit-9 (blood sample, Sushil Kumar).
v) Exhibit -2a (hair from near seat), Exhibit -2b (hair from left side of rear seat). Exhibit-2e (hair from below the left front seat). Exhibit-9 (urethral wash, Sushil Kumar) Yielded highly degraded DNA from which no DNA profiles were obtained.)
20. The viscera of the deceased Sushil Kumar was also sent to FSL, Junga for analysis and its report was also received with the following opinion:
"the contents of all parcels have been analyzed physically and chemically. Ethyl alcohol was detected in the contents of parcel P/7 and traces of the same were detected in the contents of parcel P/1, P/2, P/4 and P/5 no alcohol could be detected in the contents of parcels ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 13 P/3, P/6 and P/8. The quantity of ethyl alcohol in contents of parcels P/4 and P/5 is as under, P/4 (blood) = 324.61mg%, P/5 (urine) 324.87mg%. No other poison could be detected in the contents of these .
parcels.
21. The report of the Finger Print Bureau, Bharari received with the following opinion:
of "(i) the chance prints on the backing pads indexed as 1 to 4 and 6 are either sufficiently faint, blurred, smudged or superimposed having no required data.
Hence these all are unfit for comparison. (ii) the rt remaining chance prints pasted on backing pad marked as 5 is also very partial. requisite decipherable ridge However requisite characteristics detail in some portion is available.
After thorough and careful analysis/study this comparable chance print on the backing pad marked as 5 has found identical with the sample thumb print (RTI) on abovesaid sample slips dated 6-7-2012 of Asha Devi. There are many points of similarities in the corresponding portions of these identical chance print and sample thumb print to their relative position, at many similar points are impossible to locate in the prints of different thumbs/fingers. Out of them 08similar points in respect of chance print marked as "5" and sample thumb print marked as "RT" have been shown with red projected lines, enclosed as Annexure- A. Life size photographs of chance prints 1 to 6 are enclosed also.
Hence, it is opined beyond reasonable doubts that these both prints i.e. chance print on backing pad ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 14 marked as "5" and sample thumb print (RTI) are the prints of one and same thumb of same person.
22. The report of the mobile phone of Asha Devi, her .
nail clipping, sample of the blood, report of the mobile phone of the deceased Sushil Kumar, half burnt piece of cloth of Asha Devi, Ashes, hook of the bra, slipper of Asha Devi received from FSL, Junga and the analyst has opined as under:
of
i) A mixed DNA profile was obtained from Exhibit-1 (mobile, Asha Devi) from which one DNA profile could be interpreted and this profile matches completely with rt the DNA profile obtained from blood sample of deceased Sushil Kumar (received as Exhibit-9, vide letter No. 3925/5A dated 03.07.2012 and reported vide SFSL report number 970- A/SFSL/DNA (76)/12&972-
C/SFSL/DNA- (77)/12 dated 31-08-2012.
ii) The DNA profile obtained from Exhibit-3 (nail clipping of hand of Asha Devi), Exhibit-4 (nail clipping of feet, Asha Devi) matches completely with the DNA profile obtained from Exhibit-5 (blood sample, Asha Devi).
Iii) Exhibit 9 (mobile, Sushil Kumar), Exhibit-11 (burnt cloths, ash and soil), Exhibit-12 (steel hooks) and Exhibit-15 (chappals, Asha Devi) yielded highly degraded DNA which showed no amplification with AmpF/STR identifier plus PCT Amplification Kit; hence no DNA profiles could be generated from these exhibits.
23. I.O. has prepared the spot map vide Ext. PW2/D, spot map Ext. PW34/A of the place near Railway track where mobile phone and battery of the mobile phone of the deceased ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 15 were recovered, spot map of the place near Kararaghat where the accused burnt her clothes was prepared vide Ext. PW34/B, and spot map of the quarter of the accused at place Aanji was .
prepared vide Ext. PW34/C. The report of the FSL, Junga Ext.
PW12/C, Ext. PW30/A, Ext. PW30/B, Ext. PBB, Ext.PCC, Ext. PR, Ext. PS and Ext. PT were received.
24. On the basis of the investigation, the I.O.
of concluded that the appellant had been employed by the deceased in the BSNL on contract basis in the year, 2008 as a rt data feed operator and her contract has been rescinded in the year, 2011. Thereafter, with the assistance of deceased she was employed in PIAGGIO Agency, Deonghat belonging to the friend of the deceased, namely, Sanjeev Kumar. During this period, the appellant had physical relation with the deceased.
The deceased used to keep a knife behind his seat in his vehicle and this fact was only in the knowledge of Asha Devi.
25. The appellant was under mental agony due to the illicit relation with the deceased. In the intervening night of 30.06.2012/01.07.2012, deceased Sushil Kumar had been roaming in his vehicle No. HP-14B-1718 with the appellant and had been under the influence of liquor. He parked his vehicle near the office and sat in the back seat as he wanted to have sexual intercourse with the appellant but due to the menstruation period, she refused and then the deceased ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 16 wanted to have unnatural sex with the appellant. To resist the act of the deceased, the appellant took up the knife from the back seat of the vehicle and gave many blows on the private .
parts, stomach, chest and arms of the deceased resulting his death.
26. After killing the deceased, the appellant took the mobile phone of the deceased and the knife and it was thrown of in a vehicle of un-known number and also thrown the mobile, SIM card, memory card and battery of the mobile phone of the rt deceased near the railway track. She replaced her blood stained clothes in her residential quarter.
27. Thereafter, on 01.07.2012, the appellant had gone to her sister's house and on 02.07.2012 she had gone to her village Karoli. She put the blood stained clothes, such as trouser, shirt, bra and duppatta in a carry bag and burnt it near Kararaghat in the forest. The knife which was used to kill the deceased could not be recovered, nor it could be investigated in which vehicle the appellant had thrown the knife.
28. The appellant was mentally harassed by the deceased and this was further revealed through her SMSs transmitted to her brother-in-law Suresh Kumar. Finally, I.O.
prepared the challan under Sections 302 and 201 IPC. The appellant was charge-sheeted accordingly and the prosecution ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 17 examined as many as 35 witnesses and after completion of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded, wherein her defence .
was that of denial simplicitor and that she had been falsely implicated. However, no evidence in defence was led.
29. The learned Court below after recording evidence and evaluating the same, sentenced the appellant to undergo of imprisonment for life and to pay a fine of Rs. 20,000/- for the offence under Section 302 IPC. In default of payment of fine, she rt was further ordered to undergo rigorous imprisonment for six months. She was also sentenced under Section 201 IPC to suffer simple imprisonment for three years and to pay a fine in the sum of Rs. 10,000/-. In case of default of payment of fine, she was further to undergo simple imprisonment for six months.
30. Learned counsel for the appellant Shri Surinder Thakur, learned Advocate, would vehemently argue that the entire case of the prosecution is based on circumstantial evidence and the chain of such corollary collaborative evidence is not complete and hence the judgment of conviction is erroneous and liable to be set aside.
31. On the other hand, Shri J. S. Guleria, learned Deputy Advocate General for the respondent-State would contend that learned Trial court had discussed the evidence at length and only thereafter recorded findings of conviction.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 1832. It would be noticed that in the instant case there is no eye witness, therefore, it is a case of circumstantial evidence. As per the settled legal position, in order to sustain .
conviction the circumstances taken cumulatively should form a chain, so as to complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else. The of circumstantial evidence must be complete and incapable of explanation of any other hypothesis, then that of the guilt of the accused and such evidence should not only be consistent with rt the guilt of the accused 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.
33. The circumstances against the appellant as alleged by the prosecution are :-
i. Last seen theory based upon CCTV footage ii. Hair and finger prints from vehicle iii. Blood of the deceased found in the mobile of the appellant iv. Mobile of the deceased got recovered by the appellant v. Burnt clothes and chappal got recovered by the appellant.
vi. Call details of the mobile of the appellant.::: Downloaded on - 08/08/2023 20:41:51 :::CIS 19
Vii. Messages sent by the appellant.
vii. DNA of the accused and DNA of deceased match with the vial taken from water bottle by forensic team .
viii. Weapon of offence thrown by the appellant.
ix. Motive i. Last seen theory based upon CCTV footage
34. According to the prosecution, the deceased was last of seen in the company of the appellant as is evident from the statement of PW 9 Ajit Kumar, PW 10 C. Pawan Kumar, PW 15 rt Naveen and PW 29 S.I. Ajay Kalia. However, then it would be noticed that the depositions of all these witnesses are based upon the CD that was prepared by PW 15 Naveen and handed over to PW 28 ASI Dharam Sain, and there is no certificate as required under Section 65-B(4) of the Indian Evidence Act (for short 'Evidence Act').
35. The prosecution has examined and then relied upon the testimonies of PW-9 Ajit Kumar, PW-10 C. Pawan Kumar, PW-15 Naveen and PW-29 S.I. Ajay Kalia to establish that the deceased was last seen in the company of the appellant. However, it would be noticed that the testimony of all these witnesses is based upon the alleged CCTV footage, which is required to be kept out of consideration as being inadmissible.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 2036. No doubt, the prosecution has examined the Manager of the VASUZ Flavour Resort where the deceased is alleged to have been last seen with the appellant but then this .
witness in his statement has categorically stated that on 30.06.2012, this witness was not there till evening of 30.06.2012 nor he stated that even thereafter he visited the hotel. He rather states that one of the waiter of the hotel had of told that the deceased had come to the hotel at 2:00 p.m. but the prosecution has not bothered to examine the said waiter.
rt As per version of this witness, he had downloaded the CCTV footage in a pen drive and thereafter prepared CDs with the help of computer and, therefore, his statement would be hit by the provisions of Section 65 (b) of the Act and consequently inadmissible in evidence.
37. Even PW 29 (S.I. Ajay Kalia) has deposed only on the basis of the CCTV footage and therefore, even his statement regarding the deceased having been last seen in the company of the appellant has to be discarded.
38. It shall be apt to reproduce Section 65B of the Evidence Act in its entirety, which reads as under:-
65B. Admissibility of electronic records.-
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 21 be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or .
production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
of
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or rt process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 22 clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or .
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or of more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of rt this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 23 stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,--
(a) infomation shall be taken to be supplied to a computer .
if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being of stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that rt computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
39. In Anvar P.V. vs. P. K. Basheer & Ors. 2014 (10) SCC 473, the Hon'ble Court over-ruled its earlier decision rendered in State (NCT of Delhi) vs. Navjot Sandhu 2005 (11) SCC 600, wherein it had been held that Section 65 (b) was only one of the provisions through which secondary evidence by way of electronic record could be admitted and there was no bar on admitting evidence through other provisions and held as under:-
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 2422. The evidence relating to electronic record, as noted here-in-before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the .
same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is of wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as rt stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65- B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
40. Accordingly, the aforesaid decision for admitting any electronic evidence by way of secondary evidence, such CDR, the requirement of Section 65(b) would be necessary to be satisfied and no other route under the Indian Evidence Act can be adopted for the admission of such evidence.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 2541. This legal position has been reiterated by three judges of the Hon'ble supreme Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal 2020 (7) SCC .
1.
42. It shall be apt to reproduce the relevant observations, which read as under:-
22. It will first be noticed that the subject matter of of Sections 65A and 65B of the Evidence Act is proof of information contained in electronic records. The marginal note to Section 65A indicates that "special provisions" as to evidence relating to electronic records are laid down rt in this provision. The marginal note to Section 65B then refers to "admissibility of electronic records".
23. Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that "document" as defined by Section 3 of the Evidence Act does not include electronic records.
24. Section 65B(2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being included in conditions 65B(2(a)) to 65(2(d)) is that the computer be regularly used to store or process information for purposes of activities regularly carried on in the period in question. The conditions ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 26 mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively.
25. Under Sub-section (4), a certificate is to be produced .
that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a of person who is in the management of "relevant activities"
- whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to rt the "best of the knowledge and belief of the person stating it". Here, "doing any of the following things..."
must be read as doing all of the following things, it being well settled that the expression "any" can mean "all" given the context (see, for example, this Court's judgments in Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 331 and 1 "3. The first contention is based on an assumption that the word "any one" in Section 76 means only "one of the directors, and only one of the shareholders". This question as regards the interpretation of the word "any one" in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word "any one" should be interpreted there as "every one". Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public Om Parkash v. Union of India (2010) 4 SCC 172). This being the case, the conditions mentioned in sub-section (4) must also be interpreted as being cumulative.
32. Coming back to Section 65B of the Indian Evidence Act, sub-section (1) needs to be analysed. The sub-section ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 27 begins with a non-obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only .
takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the "document" shall then be admissible in any proceedings. The words "...without further proof or production of the original..." make it clear that once the of deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the "deemed document" now becomes admissible in evidence without rt further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible.
33. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the "original" document - which would be the original "electronic record" contained in the "computer" in which the original information is first stored -and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom - the former being primary evidence, and the latter being secondary evidence.
34. Quite obviously, the requisite certificate in sub- section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 28 computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases .
where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in theInformation Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in of accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). This being the case, it is necessary to clarify what is contained in the last rt sentence in paragraph 24 of Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
60. It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a 'responsible official position' in relation to the operation of the relevant device, as also the person who may otherwise be in the 'management of relevant activities' spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief"
(Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time).::: Downloaded on - 08/08/2023 20:41:51 :::CIS 29
61. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly .
"clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section of 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section
43. rt 65B(4) otiose.
It would be noticed that even though the defence has cited the case of Anvar P.V. case (supra) before the learned Court below, yet the learned Court below treated the CD as primary evidence by according the following reasons in para 89 of the judgment, which reads as under:-
89. Admittedly in the present case certificate pertaining to the preparation and taking the CD's Ext.
P-31 and Ext. P-32 on the record are not obtained by the investigating officer at the time of the collection of the evidence. But on the contrary prosecution examined Naveen kumar, Manager of the hotel (PW-15) who operate the CCTV footage of his hotel and prepared the CD's Ext. P-31 and Ext. P-32 and also examined two witnesses PW-9 Ajit Kumar JTO and PW- 10 C. Pawan Kumar who identified the accused in the CCTV footage. But now the question is in the absence of above certificate, can evidence be given by the person who was In-charge of the server at that time. This point has been clarified in a case 2016 CRI.L..J. ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 30 1542 titled as K. Ramajayam alias Appu V. Inspector of Police, Chennai, Para(C) and (L) in which it is held that certificate was not obtained at the time of collection of evidence. Yet, at the time of trial, evidence aliunde can .
be given through person who was in charge of server in terms of Section 65B. Hon'ble High Court of Madras in this case also relied the judgment of the Hon'ble
-Supreme Court cited AIR 2015 SC-180, (para 33). Therefore, DAY in view of the law laid down by the Hon'ble Supreme Court in the above case and also the of law laid down by the Hon'ble High Court of Madras, it is absolutely clear that the person who was in-charge of the server can give his evidence in terms of Section 65 rt B in the trial also as done in this case by PW-15. Even otherwise also CD's, pen drive, memory card, hard disc etc containing relevant data in electronic form, are "documents" as defined under Section 3 of the Indian Evidence Act. Court has the power to view CCTV footage and video recording, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether
44. Obviously, the reasoning given by the learned Trial Court for admitting the CDs as evidence are not only erroneous but are in the teeth of the judgment rendered by the Hon'ble Supreme Court in Anvar P.V. case (supra).
45. Since the CDR is inadmissible in absence of Section 65B certificate, we deem it appropriate to consider the other evidence by eschewing the electronic evidence in the form of CDR. Accordingly, we analyse the evidence considered by the Court below without relying upon the CDR.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 3146. As observed above, the waiter of the hotel could have been the best witness to establish the last seen theory and having failed to do so, it calls for drawing an adverse .
inference and this Court has no hesitation to conclude that the prosecution has failed to prove that the deceased was last seen in the company of the appellant.
ii. Hair and finger prints from vehicle of
47. As per the prosecution case, the finger prints were lifted by PW4 Rahul Sharma Dy. S.P., Finger Prints Bureau, rt Bharari, who was telephonically called and reached Police Station, Solan at 8:00 a.m. on 02.07.2012 and it was asked by the Investigating Officer to find the finger prints inside and outside the Scorpio vehicle, which was parked in the Police Station complex and covered with tarpaulin. This witness has claimed to have examined the aforesaid vehicle and found six finger prints inside the aforesaid vehicle, which he lifted and handed over the same to PW 34 SI Nishant Kumar, the Investigating Officer, who in turn put these finger prints in an envelope sealed it with seal impression 'T', specimen impression Ext.PW2/A is stated to have been taken separately and the seal after use was stated to have been handed over to H.C. Sohan Lal and in this behalf seizure memo Ext. PW2/C has been prepared.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 3248. PW 2 Sohan Lal, in turn, has stated that a team from FSL Junga, headed by Dr. Vivek Sehajpal had examined the vehicle bearing Registration No. HP-14B-1718 in the Police .
Station and he lifted some samples containing four vials of saliva and 7 samples vials of blood and some samples of hair and pieces of rexin of the cover of the seat from inside the vehicle and handed over the same to SI Nishant Kumar, who in of turn, had put all these samples in a cloth and prepared a separate parcel thereof and sealed it with the seal impression rt 'T' and specimen impression thereof was drawn separately vide Ext. PW2/A and seizure memo Ext. PW2/B was prepared, which was signed by him, ASI Bihari Lal and Dr. Vivek Sehajpal. He further claims that Inspector Rahul Sharma had also lifted finger print impression, six number from inside the vehicle and thereafter handed over the same to SI Nishant Kumar who, in turn, had put them in an envelope and thereafter sealed the envelope with seal impression 'T' and on the basis of seizure memo Ext. PW2/C had been prepared and signed by him, SI Bihari Lal and Inspector Rahul Sharma and the seal after use was handed over to him.
49. PW 34 Insp. Nishant Kumar in his examination has stated that forensic team after removing the tarpaulin from the Scorpio first of all lifted finger prints from the vehicle. The sample so lifted were handed over to him. All these samples ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 33 thereafter were put into two separate parcels and thereafter sealed with seal impression 'T', each containing three seals impression, specimen impression Ext. PW2/A thereafter was .
taken separately. In this behalf he further claims to have prepared a detailed seizure memo Ext. PW2/B, which is stated to have been signed by PW 30 Vivek Sehajpal and attested by HC Sohan Lal and HC Bihari Lal. He further states that finger of prints team headed by Inspector Rahul Sharma had handed over an envelope containing lifted fingerprints, which was also rt sealed by him with five seals of seal impression 'T' and in this behalf he had prepared seizure memo Ext. 2/C, which was signed by Rahul Sharma and attested by the above said witnesses. The seal after use was stated to be handed over to HC Sohan Lal.
50. It would be noticed that when PW2 Sohan Lal sealed finger prints on the spot without numbering the same, then it is not known how the same got numbered later on. PW 4 Dy. S.P. Rahul Sharma in his cross-examination had categorically stated that numbering of the finger prints must have been done subsequently by the concerned Investigating Officer which would mean that after sealing the finger prints by PW 2 H.C. Sohan Lal, the envelope was opened and numbering of the finger prints was done subsequently. If that ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 34 be so, the possibility of tampering with the finger prints lifted from the spot cannot be ruled out.
51. However, what is more glaring is the fact that in .
the entire process of lifting the finger prints, hair etc., no independent witness was associated, rather no efforts were made to join an independent witness. On account of this the case of the prosecution is to be eyed with suspicion.
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52. Since, the offence in which the appellant has been charged was extremely stringent, the provisions of the Code of rt Criminal Procedure relating to search, seizure and arrest were to be scrupulously followed in both letter and spirit and, therefore, it was imperative on the part of the Investigating Officer to join an independent witness at the time of alleged search and lifting of the sample.
53. The search and seizure before an independent witness would have imparted, much more authenticity and credit worthiness to the proceedings so conducted. It would have also verily strengthened the prosecution case.
54. The safeguards in the Code are otherwise intended to avoid criticism of arbitrary and high handed action by the prosecution. The Investigation Officer was bound to follow reasonable, fair and just procedure as envisaged under the Code.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 3555. No doubt, in absence of corroboration through an independent source, the evidence of the official witness cannot be disbelieved and distrusted, blind foldedly, if the .
same is found to be trustworthy. However, when the evidence of the official witness is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source certainly doubt is cast of on the prosecution story.
56. In the cases like instant one where it is imperative rt to join an independent witness, to vouchsafe the fair investigation. On account of non-joining of independent witness, normally the accused is entitled to be given benefit of doubt. On account of non-joining of independent witness at the time of alleged search and seizure the case of the prosecution becomes highly doubtful. Be that as it may, the circumstances will have to be seen alongwith the other circumstances, which shall ultimately have to be seen with the other circumstances.
57. Even if the hair found in the car and the finger prints match, even then the same are of no avail for the prosecution as it is the story of the prosecution that the appellant was having illicit physical relations with the deceased, its but natural that her hair or for that matter even finger prints would be found inside and even possibly outside ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 36 the car but this in itself would not carry the case of the prosecution any further.
iii. Blood of the deceased found in the .
mobile of appellant
58. The case of the prosecution is that the appellant was arrested on 03.07.2012 and at that time was having a mobile phone with dual SIM was taken into possession by the Investigation Officer. The mobile phone of the appellant was of opened by the Investigation Officer, who noted down the IMEI number of the same and also noted down certain SMSs. While rt doing so, the Investigation Officer admittedly has not associated any independent witness and even the messages alleged to have been written down by the Investigation Officer vide memo Ext. 16/A. The mobile phone was thereafter put in a cloth parcel and sealed with seal impression 'S' in the presence of PW 16, who is an official witness LC Pratima and mobile phone thereafter was taken into possession vide seizure memo Ext. PW16/C. The seal after use is stated to have been handed over to LC Reena. The mobile phone is stated to have been deposited by the Investigation Officer with PW 26 MHC Narinder Prakash. It has been stated by PW 6 that the mobile phone of the accused deposited by the Investigating Officer was in transparent box and he had made entry qua this in the Malkhana Register. As per the Malkhana Register, Investigating Officer deposited one mobile phone ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 37 make Samsung alongwith rexin body cover and two SIMs in transparent container to the MHC and made the entry at serial No. 1029 of the Malkhana Register. However, it would be .
noticed that while taking the mobile of the appellant in possession no independent witness has been associated and no explanation whatsoever has been given by the prosecution for not associating independent witness while taking vital of piece of evidence i.e. mobile phone of the appellant.
59. Moreover, the DNA conducted on the phone of the rt deceased Ext. 9, as per the report of the FSL, yielded highly degraded DNA which showed no amplification and hence no DNA profile could be generated from the phone and thus again vital link in the evidence of the prosecution connecting the phone of the deceased with that of the prosecution has not been proved.
iv. Mobile phone of the deceased got recovered by appellant
60. Mobile phone of deceased is alleged to have been recovered at the instance of the appellant on the basis of the disclosure statement Ext. PW11/A, which has been recorded by the Investigating Officer. On the basis of the disclosure statement, the mobile of the deceased is stated to have been recovered and thereafter taken into possession vide Ext.
PW11/B. Now, in this background, it would be necessary to advert to the statement of PW11 Krishan Lal, who at the ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 38 relevant time was working as SDO, BSNL and was working under the deceased. He stated that he was called to the Police Station by the police official and when he was present in the .
police station, Solan alongwith Nand Lal, the appellant had made a disclosure statement and on the disclosure statement, the parts of the mobile phone of the deceased was recovered by the appellant. This witness also identified the mobile phone of of the deceased.
61. As per PW 11 Krishan Lal, battery Ext. P26 was rt inserted in mobile Ext. P25 by the Investigating Officer before preparing a parcel thereof but it was found out of order.
However, when another battery was put in mobile Ext. P25, it started working and then IMEI number of the phone was noted. Whereas, the PW 34 Nishant Kumar states that "I also recorded IMEI number of Mobile phone Ext. P 25, however, it was not found to be in working order as it had rained during that period".
62. The aforesaid statement creates a serious doubt as to whether the alleged mobile phone was in fact recovered in the presence of PW 11 Krishan Lal or not. As per PW 11, police official had another battery, which also creates a further doubt that the alleged mobile phone could have been planted by the Investigating Agency ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 39
63. As per the case of the prosecution, the alleged mobile phone was got recovered by the police at the instance of the accused having IMEI number 352724044495538, .
whereas the police relied upon the call details of mobile phone of the deceased having IMEII number whereof was 35272404449553. Under these circumstances it has not been proved from the IMEI number of the mobile phone used by the of deceased so got recovered at the instance of the accused.
64. As observed above, PW 11 in his statement has rt clearly stated that the police inserted another battery in the phone and got recovered the IMEI number, clearly goes to establish that the Investigating Agency already had the knowledge with regard to the make of the mobile.
v. Burnt cloth and chappal got recovered by appellant
65. The case of the prosecution is that during the course of investigation, the appellant had made statement to the effect that she had burnt clothes somewhere at Kararaghat. This statement was recorded by the I.O. in the presence of PW 11 Krishan Lal and Nand Lal and on the basis of the disclosure statement the ashes of the burnt clothes were recovered in presence of PW3 Om Prakash and PW 11 Krishan Lal and the same were taken into possession vide memo Ext. PW3/A. As per the statement of PW3 Om Prakash, memo Ext. PW3/A was prepared and the same was sent by ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 40 him, however, the official of the telecom department states that the same was prepared in the vehicle at the spot.
However, PW11 Krishan Lal clearly deposed that he could not .
tell as to by whom memo Ext. PW3/A has been written and has further stated that the same was written in the police station.
66. Apart from above, the so called disclosure statement of the accused has not been put to PW 11 Krishan of Lal and the same has also not been put to this witness. As per PW 11 Krishan Lal, the statement of the appellant is stated to rt have been recorded by head constable at the instance of ASI, which is contradicted by the Investigating Officer PW 34 Nishant Kumar and he states that the statement of the accused Ext. PW11/D had been written by H.C. Om Prakash on his dictation.
67. That apart, the case of the prosecution is that the Investigating Officer PW 34 had called PW 3 Om Prakash at the place of recovery, which was 300 metres ahead of Kararaghat, whereas PW 3 states that he met the police party at Kararaghat and then went to the place of recovery in the vehicle of the official of the telecom department and only 3-4 persons were sitting in the vehicle.
68. Whereas PW11 Krishan Lal states that "we have arrived at Kararaghat around 9:00 am and had waited thereafter for 10-15 minutes for Pradhan", while PW34 further ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 41 proceeds to state that "I could not say as to whether PW3 Om Prakash has arrived before our arrival again stated that he was already present." Meaning thereby, that PW3 Om Prakash .
has not corroborated the version of the prosecution and has further denied portion 'a' 'b' and 'c' of his statement Ext. D2 recorded under Section 161 Cr.P.C. Strange enough, the I.O.
has not associated any witness from Kararaghat where the of accused person is stated to have visited on 01.07.2012, particularly, when it has come in evidence that there are rt shops and houses situated at Kararaghat.
69. As per the case of the prosecution the nephew of the accused was also in the company of the accused on 01.07.2012 at kararaghat but then no steps were taken to associate nephew either as a witness or interrogative. It needs to be noticed that only ashes of the burnt clothes and hooks so recovered from the spot but then it has not been proved by any proper evidence that the burnt clothes and hook belonged to the appellant.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 4270. As per the appellant she was taken into custody by the police on 02.07.2012 and this fact is otherwise corroborated by P13 Sanjeev Kumar and PW14 Bhupinder .
Minhans. As per PW 10 Pawan Kumar, he had identified the appellant in the CCTV footage on 01.07.2012 on the basis of her features and way of walking and on the basis of clothes worn by her.
of
71. Clearly this statement is blatant lie because he further goes to state that he had never met the accused after rt the year 2000 after leaving the school and had never personally met the accused. At this stage, it would be relevant to note that the prosecution examined PW9 Ajit Kumar, who after seeing CCTV footage had not identified the accused in the said footage, even though he was working in the office of PW9 Ajit Kumar and was familiar to the appellant.
72. That apart, as observed above, the CCTV footage contained in the CD has to be kept out of evidence for want of certificate under Section 65B of the Evidence Act. Thus, there is no proof whatsoever regarding the clothes that were worn by the appellant on the date of the alleged incident. The prosecution has further failed to connect the accused with the recovery of chappal through disclosure statement Ext. PW11/F. The prosecution alleged that the appellant had identified the scene of occurrence vide identification memo Ext. PW11/G ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 43 and the same is not admissible in evidence with regard to identification at the spot because the police and other witnesses had already visited the spot.
.
73. Lastly and more importantly, the FSL in Clause (iii) of its report has categorically observed as under:-
Iii) Exhibit 9 (mobile, Sushil Kumar), Exhibit-11 (burnt cloths, ash and soil), Exhibit-12 (steel hooks) and Exhibit-15 (chappals, Asha Devi) yielded highly of degraded DNA which showed no amplification with AmpF/STR identifier plus PCT Amplification Kit; hence no DNA profiles could be generated from these rt exhibits.
74. Thus, the prosecution has miserably failed to link the burnt clothes and chappal i.e. alleged to have been recovered from the accused, beyond reasonable doubt and thus even this circumstance is held against the prosecution.
vi. Call details of the Mobile of the appellant
75. As per the prosecution case, the Investigating Officer after taking the mobile phone of the appellant had recorded the sent messages from the message box vide memo Ext. P 16/A. However, while doing so, the Investigating Officer has again not bothered to associate any independent witness. As per Ext. 16/A, more than 13 messages had been sent from the mobile phone of the appellant i.e. Mobile No. 94183-62536, even if messages are to be taken into consideration, even then in the messages, does the name of ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 44 the deceased appear. The motive of murder cannot also be inferred from the messages.
76. It was incumbent upon the prosecution to have .
examined the brother-in-law, (husband of the sister of the appellant) who had received the messages and having failed to do so, it cannot be held that the messages have to be excluded from consideration as lawful evidence.
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77. Lastly and more importantly, the statement of PW 16 HHC Pratima regarding the SMS sent messages Ext. PW16A rt is inadmissible in evidence as the same is hit by Section 65B of the Indian Evidence Act. The witness did not produce the primary evidence i.e. mobile but has only produced the alleged transcript which according to her was the summary of the SMS sent messages.
vii. DNA of the accused and DNA of deceased match with the vial taken from water bottle by forensic team
78. The case of the prosecution is that PW 30 Dr. Vivek Sehajpal had taken the swab from the ring of water bottle unsealed found inside the car during its inspection.
Needless to say that PW 30 as already observed above, had not associated any independent witness at the time of taking swab inside the car during inspection. As per PW2 HC Sohan Lal, unsealed water bottle of Kinley brand was found lying inside the car and the same had been taken into possession ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 45 by the Investigating Officer, whereas the sealed water bottle containing water Ext. P1 was found to be half filled. This witness has nowhere stated that PW30 had taken swab from .
the ring of the unsealed bottle.
79. As per PW 26 HHC Narinder Prakash, SI Nishant Kumar, the then in-charge of Malkhana has deposed that SI Nishant Kumar has deposited the sealed water bottle of Kinley of brand sealed with seal 'R' and the water bottle was almost half filled. However, as per the report of FSL, the bottle was rt full of water containing 1015 ml colourless liquid.
80. Now adverting to the statement of PW 30 i.e. Dr. Vivek Sehajpal, the sample taken by him from the car had been sealed by the Investigating Officer with seal 'T' unlike PW 26 who states that the same was sealed with seal 'R'.
81. Therefore, keeping in view the material contradiction, it cannot be said that the sample taken from the car was the same sample that was sent to FSL, not only on account of the aforesaid inconsistency and contradiction but also because the prosecution failed to associate any independent witness.
82. As per the case of the prosecution, PW 24 Dr. Mukta, Rastogi, who conducted the medical examination and took blood sample, hair sample, nail clipping etc. These samples were taken in four vials with the hospital seal and ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 46 handed over to the accompanying police officials. As per MLC PW20/B, these samples had been received by LC Meenakshi No. 303. Whereas, as per the Malkhana register the aforesaid .
articles have been received through PW 26 HHC Narinder Prakash from PW31 Krishan Chand.
83. Therefore, in such circumstances, it is not understandable that when the sample had been received by of LC Meenakshi, then how and in what condition the same has been deposited by PW 31 Krishan Chand and obviously in such rt circumstances, the possibility of tampering with the sample cannot be ruled out.
viii. Weapon of offence thrown by appellant
84. The case of the prosecution is that accused after killing the deceased had thrown knife which had been used by her in some vehicle and the same could not be traced.
Admittedly, the appellant was arrested on 03.07.2012 and there is no explanation whatsoever as to why her statement was not immediately recorded under Section 27 of the Indian Evidence Act for the recovery of the weapon of offence.
85. However, as per the statement of PW 35, in order to trace the weapon of offence, he had visited the place on 10/11.07.2012. No explanation has been given by the prosecution as to why they have not visited the place where the alleged weapon of offence is stated to have been thrown ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 47 by the appellant. The Investigating Officer has not even cared to prepare any site plan nor recorded the statement of the appellant in the presence of any independent witnesses with .
regard to the story regarding the throwing of the weapon of offence.
ix. Motive
86. The case of the prosecution is that the accused of stabbed the deceased to death as the deceased used to sexually assault her and compel her to indulge in unnatural rt sex and prepare MMS thereof.
87. Evidently, no MMS was retrieved by the prosecution either from the mobile phone of the appellant or the deceased. Rather none of the witnesses except PW W34 Ins. Nishant Kumar and PW 35 Chaman Lal have stated about this fact.
88. PW 34 has stated that during investigation, the appellant disclosed that she had killed the deceased as she had been fed up with the abnormal behaviour of the deceased in subjecting her to demand of unnatural sex. To similar effect is the statement of PW 35 Chaman Lal, who attributed motive of killing on the accused because the deceased used to sexually assault her and compelled her to indulge in unnatural sex and to prepare MMS thereof.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 4889. Needless to say, the statement in the nature of extra-judicial confession by its very nature is rather a weak type of evidence and require appreciation with great deal of .
care and caution. Where an extra judicial confession is surrounded by suspicious circumstances its credibility become doubtful and it loses its importance. It is equally settled that it is a rule of caution where the Court would generally look for of an independent reliable collaboration before placing any reliance on extra judicial confession.
90. rt However, it does not mean that a confession cannot be sustained on the basis of extra judicial confession, but that would only be in cases where the confession is proved voluntary and truthful. It has to be free from any inducement.
The evidential value of such confession also depends on the person to whom it is made. Going by natural course of human conduct, normally a person would confide about a crime committed by him/her only with such person in whom she/he has implicit faith.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 4991. Normally, a person would not make a confession to someone who is a total stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession .
keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra judicial confession is corroborated by other evidence on record it requires credibility.
of
92. As regards the disclosure statement of the appellant in the instant case, recorded in the police custody, rt the same could not have been exhibited by the learned Trial court as it was hit by Section 25 of the Indian Evidence Act.
93. The conviction based on circumstantial evidence requires each and every link of the chain to be clearly established by reliable and clinching evidence.
94. The law with regard to conviction in the case of circumstantial evidence is very well crystallized by the Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and we may gainfully refer to the following observations as contained in Paras 153 and 154 thereof which reads as under:-
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.::: Downloaded on - 08/08/2023 20:41:51 :::CIS 50
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and .
'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance of between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
rt(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(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.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 5195. Equally settled is the principle of law that however strong is suspicion may be, it cannot take place of a proof beyond reasonable doubt.
.
96. It has thus been seen that the Hon'ble Supreme Court has repeatedly held that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It has been held that the circumstances of concerned 'must or should' and not 'may be' established. It has been held that there is not only a grammatical but a legal rt distinction between 'may be proved' and 'must be or should be proved'. It has been held that the fact so established should be consistent only with the hypothesis of the guilt of the accused, i.e. to say, this should not be explainable or any other hypothesis except that the accused is guilty. It has been held that circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved and there must be a chain of evidence so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show in all human probabilities the act must have been done by the accused.
97. Applying the aforesaid principles to the instant case and what can be gathered from the discussion thus so far is that the prosecution has miserably failed to connect the ::: Downloaded on - 08/08/2023 20:41:51 :::CIS 52 linkages in the chain of circumstantial evidence. It is firstly relied upon inadmissible evidence and then on account of its overzealousness has tried to effect the alleged recoveries that .
too without associating any independent witnesses. The entire investigation is shrouded with suspicion and cannot, therefore, be relied upon.
98. The prosecution has even failed to establish the of motive and the entire case hinges around grave suspicion, however, so strong, cannot be allowed to take place of legal proof.
rt
99. In view of the aforesaid discussion and for the reasons stated above, the judgment of conviction and sentence, as recorded by the learned trial Court, cannot sustain and the same is accordingly set aside. Accordingly, the appeal is allowed and the appellant is ordered to be released immediately if not required in any other case.
::: Downloaded on - 08/08/2023 20:41:51 :::CIS 53100. 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 Rs.25,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in any event of SLP being filed against this of judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
101. rt Pending application(s), if any, stands disposed of.
Record be sent back.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 08.08.2023 Judge (sanjeev) ::: Downloaded on - 08/08/2023 20:41:51 :::CIS