Himachal Pradesh High Court
State Of Himachal Pradesh vs Sunil Kumar @ Sonu & Another on 15 November, 2019
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 13 of 2011
Reserved on : October 16 , 2019
Date of Decision : November 15th , 2019
State of Himachal Pradesh ...Appellant
Versus
Sunil Kumar @ Sonu & another ...Respondents.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Vinod Thakur, Additional Advocate General with Mr. Bhupinder Thakur, Ms. Svaneel Jaswal and Mr. Narender Thakur, Deputy Advocates General for the appellant-State.
For the respondent : Mr. Ashok Kumar Thakur, Advocate, for the complainant.
Mr. Nimish Gupta, Advocate, as Legal Aid Counsel, for respondent No. 1.
Mr. K. S. Banyal, Senior Advocate with Mr. Inder Rana, Advocate, for respondent No. 2.
Per : Anoop Chitkara, Judge.
Challenging the acquittal of the respondents-accused, for culpable homicide amounting to murder, and destruction of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 2evidence, the State has come up before this Court by way of the present criminal appeal.
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2. The gist of the facts, apposite to arrive at a just conclusion, traces its origin to the General Diary No. 6(A), dated 19.5.2009 (Ext.PW-22/A), recorded at 6.25 a.m., in Police Station, Dehra, District Kangra, HP, wherein the President of Gram Panchayat Nehran Pukhar made a telephone call to Police Station Dehra, informing that one person is lying on the roadside at Nehran Pukhar.
On receipt of this information, ASI Mukesh Kumar (PW-27), along with the other Police officials, reached the spot.
3. On reaching the spot, ASI Mukesh Kumar recorded the statement of Pradeep Sharma (PW-1) under Section 154 CrPC (Ext.PW-1/A). Pradeep informed the Police that on May 19, 2009, in the morning at around 6 a.m., his Mausi (mother's sister) Smt. Santosh, made a phone call to him, and informed him that Rajeev Sharma @ Vicky is lying on the roadside at Nehran Pukhar. Smt. Santosh told Pradeep to visit the spot. On reaching the place, Pradeep Sharma found Rajeev @ Vicky lying dead on the side of the road. He also noticed injuries on his head and chest and saw that a lot of blood had oozed out from such injuries. On seeing the spot, Pradeep inferred that during the intervening night of May 18, ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 3 and May 19, 2009, Rajeev met with an accident with some vehicle, in a hit and run case.
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4. On receipt of this information, FIR No. 60, dated 19.5.2009 (Ext. PW-18/A), under Sections 279 and 304-A of the Indian Penal Code, 1860, and Section 187 of the Motor Vehicles Act, 1988, was registered in the file of Police Station Dehra, District Kangra, HP.
5. The Investigating Officer filled up the inquest form (Ext.
PW-3/B) and inspected the scene of crime. From the spot, Police found one plastic flap (of some vehicle), and seized the same. The Police also sent the dead body, along with the requisite letter, to RPGMC Tanda, for conducting post mortem examination. In this letter sent to Doctors, the investigating officer mentioned the probable cause of death as a result of accidental injuries.
In RPGMC Tanda, Dr. Anita Mahajan (PW-3), under the
6. guidance of Dr. D.P. Swami (PW-11), conducted the post mortem examination on the body of Rajeev Sharma @ Vicky (deceased), and gave post mortem report (Ext. PW-3/C). During post mortem examination, the Medical Experts noticed a fracture on the skull, and congestion in larynx and trachea, which were full of blood. The experts also noticed smell of alcohol from the contents of the stomach. The opinion of the Medical Officer Dr. Anita Mahajan (PW-
3) reads as follows:
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 4"Opinion given under the guidance of Dr. Swamy. In my opinion the deceased died due to Asphyxia & Neurogenic Shock due to Ante mortem Head Injury .
under circumstances of inhalation of Blood into trachea and the possibility of death due to Accidental Injury cannot be ruled out. However, the final opinion will be given after report from Chemical."
7. After the post mortem examination, the Doctors preserved contents of the body as well as the blood, for forensic science examination, and handed over the same to the Police. Vide report Ext.
PW-3/D, the State Forensic Science Laboratory, Junga, detected 277.93 mg% ethyl alcohol in the blood obtained from the body of Rajeev Sharma (deceased).
8. The Police also sent the plastic flap and the blood sample for testing, and as per report Ext. PX of State Forensic Science Laboratory, Junga, the laboratory detected blood of group 'AB' in the blood sample of the deceased as well as from the blood obtained from the plastic flap.
9. It is the case of the Prosecution that there was an agitation by the villagers and blockage of roads, who were not satisfied with the case registered as a result of an accident. On May 30, 2009, the Superintendent of Police Kangra, transferred the investigation to Subhash Shastri (PW-28), who was posted as Incharge of CIA Staff.
10. On June 10, 2009, Police got recorded the statement of one Deepak Kumar @ Goldy (PW-4) under Section 164 CrPC in the ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 5 Court of Additional Chief Judicial Magistrate, Dehra. This statement of Deepak Kumar (Ext. PW-4/A) narrates the following facts:
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(a) Deepak stated that he was not related to Rajeev Sharma (deceased), but he knew him because he was working as a conductor.
(b) He further stated that on May 18, 2009, in the evening at around 6-6.30 p.m., he, along with Sonu (Accused A-1), had gone to Dhaliara to meet their friend. On reaching there, they met Vandana (Not examined), who told Sonu (A-1), to drop her at her village Kasba, and on this Sonu said to her that he did not have any vehicle. On this, Vandana brought the keys of one Trax, which was parked there and belonged to Dinesh Sharma (Accused A-2). Then Deepak Kumar, along with Sonu, went to drop Vandana in the said Trax.
(c) Vandana told Sonu to drop Dinesh (A-2) at Village Sehri because he was to be administered glucose at Dhaliara Clinic.
(d) After that, Sonu asked Dinesh that at what time he would go, and on that, Dinesh told him to wait for 10-15 minutes. It was 7-
7.30 p.m., and then Sonu started taking alcohol at Dhaliara. After that, Dinesh made a phone call to Sonu and asked him to leave.
Sonu (A-1) gave keys of the vehicle to Deepak and asked him to drive. Upon this, Deepak started driving the Trax, and when they reached Dhaliara, Rajeev (deceased) met them.
(e) At Dhaliara, Rajeev joined them and boarded the Trax. When they reached place Nehran Pukhar, then Rajeev asked Deepak that he would like to alight here. However, on this, Dinesh told him that they would drop him at Sehri. However, Rajeev did not agree and got down from the vehicle at Nehran Pukhar itself.
(f) When Rajeev alighted from the Trax, then they reversed the vehicle, and Sonu, Dinesh and Deepak, came towards Dhaliara ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 6 and stopped the vehicle near a Dhaba. Sonu again started taking alcohol, and time was around 9.30 p.m. Dinesh kept on standing near the vehicle. Then he received a phone call upon which Dinesh .
demanded keys of the vehicle from Sonu, but he refused. On this, Dinesh told Sonu that he has to soon leave for his home and requested to hand over the keys to him, and on this, Dinesh went towards Nehran Pukhar in the Trax.
(g) When the vehicle returned from Nehran Pukhar's side, then it was at very high speed, and Rajeev was also in the said vehicle.
The vehicle went towards Kasba, and Dinesh and Rajeev were sitting in the vehicle, and even Sonu had seen them in the vehicle.
(h) At that time, Sonu told Deepak that they would return to their homes. When they reached near the house of Deepak, then Sonu demanded a stick from Deepak. He said to him that as he gets scared at night and needs a stick. On this, Deepak handed over a stick to him and went home.
(i) After about half an hour, Sonu again came to his house and asked him to accompany him to work, but Deepak refused. On this, Sonu started abusing him.
(j) Then Deepak started spying on him with a torch and followed him. Sonu reached an Inn (Sarai), where Rajeev and Dinesh were also there. Dinesh had caught hold of Rajeev, and Sonu had also reached there. Both of them took Rajeev inside the Sarai and hit him with an iron rod. After seeing this, Deepak returned to his home and slept.
(k) The next morning Deepak made a phone call to Sonu and informed him that Rajeev had died. Upon this, Sonu replied that what he has to do about it. After an hour, they reached the spot where the dead body was lying.
(l) On June 1, 2009, Sonu made a phone call to Deepak and asked him to accompany him to Shimla. Then on June 2, 2009, he ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 7 reached Ghaggas from where Sonu picked him up, and then both of them reached Shimla. They stayed in Shimla for four-five days and then returned home on June 8, 2009.
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(m) Deepak further stated that when he reached Chowk, then Police officials met him, and they took him to the Police station and started interrogating them. Deepak also said that later, he disclosed to the Police that Sonu and Dinesh killed Rajeev. Deepak further told the Police that when Sonu and Dinesh hit Rajeev with a rod, then Rajeev cried, due to which Deepak got scared and returned home.
11. After recording the above statement (Ext. PW-4/A), the Police converted the FIR from Sections 279 and 304-A of IPC to under Sections 302, and 201 read with Section 34 of IPC.
12. As evident from the arrest memo (Ext. PW-24/A), the Investigating Officer arrested Sunil @ Sonu (A-1) on June 10, 2009. After that, as per the arrest memo (Ext. PW-23/A), the Police arrested Dinesh (A-2) on the next day, i.e., June 11, 2009.
13. After the arrest, the accused Sunil volunteered to make a disclosure statement under Section 27 of the Indian Evidence Act, which the Investigating Officer recorded vide memo Ext. PW-13/A. Sunil disclosed to the Police that he could show them the room where they had killed Rajeev. This statement also mentions the fact that the Police had recovered clothes that Sunil was wearing at the time of the crime.
14. Vide another disclosure statement recorded at the instance of accused Dinesh, under Section 27 of the Indian Evidence Act (Ext. PW-
13/J), he disclosed that on the day of occurrence, i.e., May 18, 2009, the ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 8 wheel spanner he had used in crime, was concealed by him beneath the driver seat of his vehicle. Consequent to this disclosure statement, Police .
discovered the said wheel spanner, vide memo (Ext. PW-13/K), dated 16.6.2019.
15. Vide another seizure memo dated 16.6.2009 (Ext. PW-16/A);
the Police seized clothes allegedly worn by Dinesh from the house of his married sister.
16. After that, the Police visited the alleged scene of the crime and prepared a spot map (Ext. PW-28/E). According to the spot map, the scene of the crime was an abandoned Sarai (Inn), 150 meters away from the road. Inside the building, the Police also noticed blood spots.
17. The Police also took a team of Forensic Science Experts, from the Regional Forensic Science Laboratory, Dharamshala, to the scene of occurrence. As per the report (Ext. PW-20/A) of Experts, it was a single storey structure, having two rooms and a corridor. The Experts found stains on the stones, blood on floor and two adjoining walls of the Sarai.
The tests carried out in the laboratory, did confirm the presence of the blood. Still, it remained inconclusive whether the blood traced its origin to a human or not.
18. Vide recovery memo (Ext. PW-23/B), dated 11.6.2009, the Investigating Officer seized the Trax, bearing registration number HP-36A-
1944. The team of RFSL Dharamshala, also examined the said vehicle, and scientist noticed brown colored stains on the backside of the middle ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 9 seat cover. As per the report of the laboratory (Ext. PW-20/A), blood was found present in the vehicle. However, the report is silent about the blood .
of a human and also its group. Although the report (Ext.PY) of the State Forensic Science Laboratory, Junga, detected blood on thread pieces obtained from the vehicle, the laboratory did not opine the same to be human blood.
19. As per the same report (Ext.PY), human blood was found on the pajama of Sunil Kumar, but the laboratory could not detect the blood group. The report also states that the Laboratory did not find blood on the shirt of Accused Sunil Kumar and clothes of Dinesh.
20. The Investigating Officer sought a supplementary opinion from the Doctors vide application dated 5.9.2009 (Ext.PW-24/D). On the same day, Dr. Anita Mahajan (PW-3) opined that in the proper dispensation of justice, the information regarding the weapon and injuries should be sorted out from Dr. D.P. Swami, a Forensic Expert, who had also been called by the Dehra Police on 19.5.2009, at the time of post mortem examination, and under whose supervision the post mortem was conducted. Dr. Anita Mahajan tendered her opinion in evidence and duly corroborated this in her testimony.
21. After the completion of the investigation, Police filed a report under Section 173 (2) CrPC, which arraigned the present respondents as accused persons.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 1022. Vide order dated Dec 9, 2009, the learned Trial Court, framed charged against both the accused, for the commission of the offences .
punishable under Sections 302 and 201 IPC, both individually as well as with the aid of Section 34 IPC, to which they did not plead guilty and claimed trial.
23. After the completion of the prosecution evidence, the Trial Court in compliance to Section 313 CrPC, put incriminating circumstances to the respondent-accused. Both the accused denied the prosecution case in its entirety. They further claimed that the witnesses had deposed due to political pressure and of the Police officials.
24. In defence, the accused examined one Jyotishi (Astrologer), as DW-1, to prove that on the intervening night of 18th and 19th May 2009, it was Krishan Paksha and Naumi. Pandit Baini Bilas (DW-1) stated that on such date, the moon rose at 1.20 a.m. and set the next day at 1.07 p.m. Copy of the panchaang was also exhibited as DW-1/A.
25. The learned Sessions Judge, Kangra at Dharamshala, HP, vide judgment dated 23.10.2010, passed in Sessions Case No. 36-G/VII-2009, dismissed the prosecution and acquitted both the accused of all charges.
It is against this judgment of acquittal that the State has come up before this Court by filing the present appeal under Section 378(3) of the Code of Criminal Procedure, 1973.
26. We have heard Ms. Swaneel Jaswal, learned Deputy Advocate General for the appellant-State, Mr. Ashok Thakur, learned ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 11 counsel for the complainant, Mr. Nimish Gupta, learned legal aid counsel for respondent No. 1, Sunil Kumar (Accused A-1) and Mr. .
K.S. Banyal, learned Senior Counsel assisted by Mr. Inder Rana, learned counsel for respondent No. 2, Dinesh (Accused A-2). We have also waded through the entire record, including the statements of the witnesses and exhibits.
DISCUSSIONS & REASONING POST MORTEM REPORT:
27. To prove the charges of culpable homicide, first steps the prosecution is required to take is verify through 'Post Mortem Report' that the death was neither natural nor accidental or suicidal.
28. The post mortem examination conducted by Dr. Anita Mahajan (PW-3) did not opine that the death was not due to an accident. To the contrary, she explicitly narrated in the post mortem report (Ext. PW-3/C) that the possibility of death due to accidental injury could not be ruled out. The Doctor also mentioned that she gave this opinion under the guidance of Dr. D.P. Swami (PW-11).
29. Had there been no agitation by people of the area, then nobody had any issue with the Post Mortem Report. However, after the launching of agitation by the people, the Police succumbed to the pressure, and sought additional information from Dr. Anita Mahajan. She again clarified, vide her noting in Ext. PW-24/D, that in ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 12 the proper dispensation of justice, the opinion regarding the weapon of offence and the injuries, should be sought from Dr. D.P. Swamy, .
Forensic Expert, who had been called by the Dehra Police on 19.5.2009 as an Expert, under whose supervision she had conducted the post mortem examination.
30. It is pertinent to note here that both the accused appear to be very ordinary people, and a legal aid counsel is representing Sunil (A-1). It is not the remotest case of the prosecution that the accused are influential persons. At the time when the doctor had conducted the post mortem examination, there was no possibility of any interference in the working of the Experts or use of any influence.
31. Dr. Anita Mahajan (PW-3) testified that she had conducted the post mortem examination under the guidance of Dr. D.P. Swami (PW-11), who was a Forensic Expert. She further testified that when the Police requested her to give an additional opinion about the weapon of offence and injuries, then she clarified that it should be sought from Dr. D.P. Swami, who is a Forensic Expert, and had also been called at the time of the post mortem examination, which was conducted under his supervision. During her testimony in Court, she stood to her stand about the cause of death as she had opined in the post mortem report. She categorically stated that the cause of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 13 death, in her opinion, was also the opinion of Dr. D.P. Swami, Medical Expert. In cross-examination, she stated that the possibility .
could not be ruled out that if a moving vehicle hits a person, then injuries sustained by the said person would be the same as mentioned in the post mortem report. According to her, the cause of death, in this case, was inhalation of blood into the trachea due to asphyxia and neurogenic shock.
32. Dr. D.P. Swami testified as PW-11 and stated that injuries No. 11 and 12 were possible by weapon i.e., spanner. Even on its face value, this does not lead to an irrefutable conclusion that the injuries number 11 and 12, were not possible in an accident. What Dr. D.P. Swami testified is that injuries No. 11 and 12 were possible by the weapon shown to him, but it does not mean that these injuries were not possible by any other means. He admitted that the post mortem was conducted by Dr. Anita Mahajan, under his supervision, but clarified that it was she who had done it mostly independently.
He further stated that Dr. Anita Mahajan gave an opinion about the cause of death. This statement also establishes that primary evidence about the cause of death would be the version of PW-3 Dr. Anita Mahajan, who had conducted the Post Mortem Examination.
The version of PW-3 Dr. Anita Mahajan gets corroboration from the post mortem report (Ext.PW-3/C), as well as the additional medical ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 14 opinion (Mark PW24/A). Non consideration of this evidence is likely to prejudice the accused.
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33. The cause of death being accidental and not homicidal, gets further corroboration from the plastic flap, which the Investigating Officer had collected as evidence from the spot, where the dead body was lying. As per the report of the State Forensic Science Laboratory, Junga (Ext. PX), human blood of group 'AB,' was noticed on this plastic flap, and the blood of the deceased was also of group 'AB.' The said plastic flap was of some vehicle, and it had scratches on it, and its locks had broken. The presence of a plastic flap on the spot points towards the accident.
34. SI Mukesh Kumar (PW-27) stated in his cross-examination that he had interrogated the shop keepers where the dead body was lying, but he did not record their statements. He admitted that people had resented the cause of death. ASI Subhash Shastri (PW-
28), admitted that until May 30, 2009, the Dehra Police had investigated the case for offence under Sections 279 and 304 IPC, but the people were agitating, and there was blockage of roads.
Therefore, the possibility cannot be ruled out that the Police succumbed to the public pressure.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 1535. Even if the statement of PW-11 Dr. Swami is to be believed, still, the evidence on the record must lead to a conclusion .
of guilt and not of innocence.
IMPROBABILITY AND INCONSISTENCY IN PROSECUTION CASE
36. The case of the prosecution primarily is of the eye witness account of Deepak Kumar @ Goldy (PW-4), and the rest upon circumstantial evidence. On June 10, 2019, Deepak Kumar gave a statement Ext. PW-4/A, under Section 164 CrPC, to Additional Chief Judicial Magistrate, Dehra. The following aspects of this statement grossly fail the test of credibility and make it highly doubtful and improbable. In this statement, Deepak @ Goldy stated that once he had returned to his home after half an hour, Sunil (A-1) came and asked him to accompany him for some work. On this, he (PW-4) refused, and Sunil got offended and also abused him. As per this statement, Deepak then claimed to have stalked and followed Sunil by carrying a torch. Now in the night, in a remote area, which as per the spot map, had no street lights, nor there is any other evidence of the same; if somebody would use torchlight, then the person who is being followed will notice the illumination of light and would become cautious. Secondly, the use of torchlight would show that there was darkness all around, and once it was dark, then how could have Deepak seen the incident?
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 1637. The next portion of the statement states that both the accused, along with Rajeev, were standing outside the Sarai. Then .
the accused caught hold of Rajeev and took him inside the Sarai, where they hit him with an iron rod. It is impossible for a person, standing at a distance, to notice as to what was happening inside the building that, too, by focusing torchlight and without being noticed. The moment light would fall in the room; the accused would have become cautious and alert and would have chased the person.
There is no such evidence. Deepak Kumar did not say that the accused had chased him or that the accused had come to know that someone was spying upon them.
38. The most disturbing feature of this statement (Ext.PW-4/A) is that twelve days after witnessing such a heinous crime, Deepak, for no explainable reasons, agreed to accompany Sunil (A-1) to Shimla. He was so eager to attend him that he reached a place known as Ghaggas to meet Sunil and stayed with him for a week or so in and around Shimla. Had he seen Sunil committing this offence, then there was no reason or occasion for him to accompany Sunil to Shimla and take the risk of his life by staying in his company. He could have easily refused his request under any pretext. This conduct shows improbability and creates a dent in his statement.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 1739. Coming to the statement of this witness made in Court, he stuck to his previous account under Section 164 CrPC. He further .
stated in his testimony that on the next date at 7.00 a.m., when he visited the bazaar to purchase shampoo, then he saw the dead body of Rajeev. This witness kept quiet till he was apprehended by Police allegedly on June 10, 2009, that is around three weeks after the occurrence. His long silence blows away the mask.
40. Deepak admitted the suggestions that he remained present in his village from May 18, 2009, till June 2, 2009. He further stated that on June 8, 2009, when Police met him at Hanuman Chowk, Dehra, Sunil was also with him. His testimony further reads that after that, the Police took him as well as Sunil, and confined them to a government-owned restaurant, where he narrated the entire incident to the Police officials. He further admitted that he was present with the Police from June 8, 2009, to June 10, 2009, and during that time, the Police officials administered beatings to him.
41. Now given the specific statement of this witness, who was barely 19 years at that time, and 20 years at the time of recording statement on oath, it raises a high suspicion about the truthfulness of his statement recorded under Section 164 CrPC. It emerges from his account that he, along with Sunil, was with Police from June 8, 2009, onwards. This fact gets corroboration from the Police witness ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 18 Constable Harjeet Singh (PW-16). In his cross-examination, Const.
Harjeet Singh admitted that on June 8, 2009, the Police had arrested .
Sunil (A-1) and Goldy (PW-4). He further stated that both had remained in Police custody for three/four days. Given this version of Deepak that the Police had arrested him on June 8, 2009, there is no reason to disbelieve him when he stated that the Police had beaten him in custody. Because of this evidence, it would be extremely unsafe to place any reliance on the statement of this witness recorded on oath because it was verbatim the same, which was made by him under Section 164 CrPC, which was under
duress.
42. It is inferable from the statement of Ajay Sharma (PW-13) that the Police detained Deepak, and he remained in custody at least till June 13, 2009. It shows the kind of pressure the Police had built up upon this witness so that he does not retract from his statement. In cross-examination, Deepak (PW-4) also admitted that Police officials had told him to depose before the Judicial Magistrate as he had narrated the incident to them.
43. The next improbability in the statement of Deepak is about the availability of light. In the earlier statement recorded under Section 164 CrPC (Ext.PW-4/A), this witness had stated that he had carried a torch when he was following Sunil (A-1). However, while ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 19 testifying in Court, apart from the fact of his carrying a torch, he improved his version by saying that it was moonlit night. The .
presence of moon has been disproved by defence witness (DW-1) who relied upon the Science of Ancient Indian Astrology that on May 19, 2009, the moon had risen on at 1.20 AM. Even as per timeanddate.com, the Moon had risen at nearby Dharamshala, at almost similar time, and statement of DW-1 gets corroboration from the well established and irrefutable scientific evidence, (https://www.timeanddate.com/moon/india/dharamshala). As per Deepak Kumar (PW-4), the time when Sunil had come to his house, it was around 10 pm. In the statement under Section 164 CrPC, it was explicitly mentioned by Deepak that at about 9 or 9.30 PM, he was present with both the accused and when they went towards their home and thereafter the accused Sonu @ Sunil again came there after half an hour. By no stretch of the imagination, the time when Deepak Kumar (PW-4) had followed Sunil would be beyond 11.00 pm. Even it is not his case that it was past midnight when he had followed Sunil to the Sarai. Thus to cover up low visibility in the darkness of night, the Prosecution introduced the story of moonlight.
44. The next improbability in the statement of Deepak is his noticing Rajeev and Dinesh Kumar (A-2), crossing him in the vehicle at 9.30 PM. It was not a well-lit road, and in the high beam of the ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 20 headlight, it would become next to impossible to recognize people sitting in the vehicle, unless some other light reflects them. It is not .
the stand of Deepak that the light of the cabin of the vehicle was switched on.
45. This witness further admits in his cross-examination that because of the death of Rajeev, the residents of village Sehri got agitated and were on dharna. In the concluding portion of his cross-
examination, this witness states that at the time of recording his statement under Section 164 CrPC, the Judicial Magistrate did not administer him any oath.
46. The above discussion about the statement of Deepak Kumar @ Goldy (PW-4) creates a grave doubt about the veracity of his version, and it shall be highly unsafe to convict the accused solely relying upon his evidence.
DISCLOSURE STATEMENTS:
47. The next circumstance which the prosecution is relying upon is the disclosure statement made by accused Sunil @ Sonu, under Section 27 of the Indian Evidence Act. The said statement, Ext.PW-13/A, discloses about the room inside the Sarai where they had killed Rajeev. The other portion of the statement is regarding the seizure of his clothes by the Police. Even as per this statement, the Police had already seized these clothes. Therefore, it cannot be a ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 21 fact that was not in the notice of the Police, and would therefore not fall under Section 27 of the Indian Evidence Act. Regarding the first .
portion of the statement wherein he volunteered to disclose the room inside the Sarai, this fact was already in the notice of the Police on June 10, 2009, itself, through the statement of Deepak @ Goldy (PW-4). Hence, it cannot be said to be a fact discovered.
48. Furthermore, as per the statement (Ext. PW-13/A), Sunil had volunteered to disclose the room in the abandoned Sarai, but there is no other statement corroborating the fact of such disclosure.
Had accused taken the Police officials to the room in the Sarai, as he had volunteered to disclose in his statement, in that eventuality, the Investigating Officer would have prepared some memo, duly attested by witnesses, depicting their arrival in the Sarai.
49. On June 16, 2009, Dinesh Kumar (A-2) had also made a disclosure statement (Ext. PW-13/J) under Section 27 of the Indian Evidence Act. Dinesh had volunteered to point out towards the vehicle in which he had concealed the spanner and also pointed out the place in the house of his sister Shushma Devi, where he had hidden his clothes. Consequent upon this statement, vide recovery memo Ext.PW-13/K, Dinesh got recovered the spanner and vide memo Ext. PW-16/A, he got recovered his clothes.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 2250. The witnesses to the disclosure statement of accused Sunil (Ext. PW-13/A), disclosure statement of accused Dinesh (Ext.
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P-13/J), and recovery memo (Ext. PW-13/K) are Ajay Sharma (PW-
13) and Ramesh Chand (PW-14). Ajay Sharma, in his testimony, denied such disclosure statements and did not support the disclosure statement having been made by the accused. In his cross-examination, Ajay Sharma stated that the deceased was the brother-in-law of his friend, and on this count, he had gone to the Police station. He further stated that at the time of such disclosure statement, Deepak @ Goldy (PW-4) was also in Police custody.
After this, witness Ajay Sharma (PW-13) was declared hostile and when leading questions were put to him he stated that on June 16, 2009, Dinesh had stated about concealment of a wheel spanner but he did not disclose about the concealment of clothes in the house of his sister.
51. The other witness to this disclosure statement is Ramesh Chand (PW-14). He corroborated the case of the prosecution about disclosure statements Ext. PW-13/A and Ext. PW-13/J. In the cross-
examination, he admitted that there was agitation by the habitants of village Sehri, qua the death of Rajeev Kumar.
52. These disclosure statements, even if taken to be proved, still do not lead to the discovery of any fact. The disclosure ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 23 statement made by Dinesh was regarding spanner, whereas Deepak categorically stated that Sunil had hit Rajeev by an iron rod. Even .
otherwise, there is no scientific evidence of the presence of blood on this wheel spanner. Therefore, the Prosecution has failed to establish beyond a reasonable doubt, the wheel spanner as the weapon of offence. Resultantly these disclosure statements are inconsequential.
53. There is another aspect to these disclosure statements.
According to the Investigation Officer, and as apparent from the arrest memo Ext.PW-24/A, Police had arrested Sunil Kumar on June 10, 2009. As already discussed, it came in evidence of Deepak Kumar (PW-4), corroborated by the statement of Const. Harjeet Singh (PW-16) that Police had arrested Sunil (A-1) on June 8, 2009.
It concludes that Sunil had already remained in illegal custody for two days, before he made a disclosure statement, Ext. PW-13/A, on June 13, 2009. Therefore, it becomes doubtful that Sunil had voluntarily made the disclosure statement.
54. Similarly, the records show the date of arrest of the other accused Dinesh (A-2) as of June 11, 2009, vide memo Ext. PW-
23/A, and the date of the disclosure statement Ext. PW-13/J as June 16, 2009. In between, it had come in evidence that the Police also detained Deepak. Therefore, in the given facts, the authenticity of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 24 the disclosure statement would lose its effect after two days of illegal detention and three days of arrest.
.
55. In the cross-examination of ASI Subhash Shastri (PW-28), the Investigating Officer of CIA, he admitted that there was no evidence of lifting, throwing, and carrying out the dead body. He further revealed that in the abandoned structure (Sarai), which was pointed out as the scene of the crime by Deepak (PW-4), there was cow dung and other waste material present. The Sarai neither had any door nor frame. If the offence had been committed in this Sarai, then blood would have oozed out there. The blood recovered from this Sarai was hardly sufficient enough to refer it to be human blood.
The presence of cow dung establishes that this Sarai was being used as shelter by stray cattle. These premises would have been used for so many activities by so many people. Thus the presence of some blood would hardly be sufficient to establish that Rajeev Sharma (deceased) was killed at Sarai. The blood otherwise could be of some animal.
56. Another significant fact is that Pradeep Sharma (PW-1) at whose instance the Police had recorded FIR, and who had seen the dead body mentions explicitly that the dead body was lying on the side of the road, and a lot of blood had oozed out. Had Rajeev been killed in the Sarai, the blood would have oozed out in the Sarai itself ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 25 and not on the road. ASI Subhash Shastri (PW-28), who was appointed as the Investigating Officer when the investigation was .
handed over to the CIA, explicitly stated that there was no evidence of lifting, throwing, and carrying of the dead body. It establishes that the deceased had received injuries on the side of the road, where he was lying. There is no evidence to believe that he was killed at the Sarai, and his body was transported to the roadside and laid there.
57. To connect the accused with the crime, the statement of PW-6 Santosh Devi, mother of the deceased, is relevant. She stated that Dinesh is from their brotherhood. She testified that on the day before the death of her son Rajeev, that is on May 17, 2009, her son had reached home at around 6 PM, and at dinner, he had told her that Dinesh had threatened him and proclaimed that only one of them would survive. On this, she had consoled him by assuring that on the next day, she would look into the matter, and she accordingly went to the house of Dinesh, who was not present there. Even if this statement is believed in toto, still, this proclamation, in the absence of motive and other evidence, would hardly connect Dinesh with the commission of the alleged crime. Had she found the threats to be serious, then she would have at least spoken with the elders in the family, and on the extension of the threat would not have taken the risk of her son leaving home.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 26LAST SEEN TOGETHER:
58. The next thread of evidence which the prosecution is .
relying upon is that Rajeev was last seen with Dinesh. The prosecution examined Rakesh Kumar (PW-7), who had given a lift to Rajeev, up to the clinic at Dhaliara, where Dinesh (accused A-2) had been administered a drip in Amrit Clinic. According to this witness, he had dropped Rajeev in the said clinic at 7-7.15 PM. The prosecution also examined Dheeraj Sharma (PW-9), who runs the said clinic at Dhaliara, and corroborated the fact that Dinesh was on a drip, and that he doctor had discharged him at 7.30 PM. Thus the case set up by the prosecution is that after discharge, Dinesh had accompanied Rajeev, and after that, he was found dead. However, the time gap between noticing the dead body of Rajeev and his presence at the clinic with Dinesh is enormous.
59. PW-9 Dheeraj Sharma explicitly stated in his examination-
in-chief, that after closing his clinic at 8.30-8.45 PM, when he had reached near Nehran Pukhar, he saw Rajeev present there. PW-9 Dheeraj Sharma did not explain that at that time, whether Rajiv was alone or was present with someone, and if yes, then who was such a person. As such, the theory of last seen is demolished by the prosecution's witness, that too in his examination-in-chief.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 2760. A Division Bench of this Court, in State of HP v. Sunil Kumar, 2017 Latest HLJ 1363, authored by one of us, (Justice Tarlok .
Singh Chauhan) holds, "23. Thus, it can be taken well settled that in the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction."
61. The other evidence, the prosecution tried to bring was about the motive. The prosecution attempted to build up a case that Dinesh (A-2), as well as Rajeev (deceased) had a relationship with a girl, named Vandana, and suspecting the multiplicity of her partners would have led to absence of monogamy, Dinesh eliminated Rajeev.
However, the prosecution never examined said Vandana, who was the most material witness to prove the fact of her knowing any of them or both of them. In the absence of her testimony, there is nothing to believe that she knew either Rajeev or Dinesh. Thus, this circumstance is also not proved.
ADMISSIONS MADE IN CROSS-EXAMNATION:
62. Ms. Swaneel Jaswal, learned Deputy Advocate General, states that because of the admissions made on behalf of the accused, while cross-examining Deepak Kumar @ Goldy (PW-4), the crime, as well as the weapon of offence used in the crime, ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 28 stands admitted, and the burden shifts upon the accused to explain the same. She drew the attention to the cross-examination of .
Deepak (PW-4) by the learned counsel for Sunil (accused A-1). The portion of cross-examination that Ms. Swaneel Jaswal, places reliance upon, is extracted as follows:
"It is correct to suggest that I had given the statement before the Judicial Magistrate that accused persons had hit the deceased with iron rod. My statement was also recorded by the Investigating Officer. It is correct to suggest that I had informed the Investigating Officer that accused had killed the deceased by iron rod".
63. The purpose of cross-examination is to impeach the credibility of the witness. It is not the job of the Defence Counsel to confess on behalf of his client. Cross-examination is the most important tool available with the accused to defend his liberty, and while doing so, the Defence Counsel is under an obligation not to breach the Lakshaman Rekha and in other words, not to exceed his brief.
BURDEN OF PROOF:
64. When one calls another a thief, then it is for the accuser to prove that the accused is a thief. There may be some cases where the evidence proved in the Examination-in-chief of a witness is ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 29 insufficient to arrive at the guilt of conviction, and no cross-
examination would be required. Once the Prosecution discharges .
the initial burden, only then the burden would shift upon the accused to demonstrate that how the offending article did come in her possession. It is the cardinal principle of criminal jurisprudence that barring a very exceptional class of cases, the burden to prove an offence and establish guilt is always on the Prosecution, and it never shifts.
65. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, Supreme Court holds, "51. ...It is a trite law that Presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions."
66. In Amba Lal v. Union of India, AIR 1961 SC 264, Constitutional Bench of Supreme Court, while dealing with S. 5 of the Land Customs Act, holds, "8. We cannot also accept the contention that by reason of the provisions of S. 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 1917. Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal application. Under that section when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This Court in ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 30 Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 after considering the earlier Privy Council decisions on the interpretation of S. 106 of the Evidence Act, observed at p.
.
204 (of SCR) thus :
"The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
67. In Ritesh Chakarvarti v. State of Madhya Pradesh, 2006 (12) SCC 321, Supreme Court holds, "33. It was furthermore urged that Appellant has not been able to prove the defence raised by him. It was not necessary for him to do so. It was contended that the burden to prove the defence set up by him was on Appellant and he failed to discharge the same. In a case like the present one, the said submission cannot be appreciated.
The prosecution was required to prove its case beyond all reasonable doubt."
CROSS-EXAMINATION:
68. It is the art of cross-examination which decides the fate of so many accused. In the present system, when the Scientific tools and Artificial Intelligence is yet to be put in use to detect the lies, cross-examination still remains the most crucial tool to impeach the credibility of a witness; to destroy or weaken the evidentiary value of the witness of her adversary; to demonstrate that the witness is unworthy of belief; to test her veracity; to discover who she is and what is her position in life; except to the victims of sexual offences, ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 31 to shake her credit by injuring her character, to elicit facts favouring her client; and to build the foundation to set up the case of the .
defence, e.g., plea of Alibi, Private Defence etc.
69. A Constitution Bench of Supreme Court in Kartar Singh v.
State of Punjab, (1994) 3 SCC 569, holds, "278. Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-
chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character."
70. In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi, (2012) 2 SCC 584, Supreme Court holds, "42. ...The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 32chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. "
.
71. In Juwarsingh v. State of M.P., (1980) Supp1 SCC 417, Supreme Court holds, "5. ...Cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept their testimony merely because there was no cross-examination."
72. In Nga Ba Sein v. Emperor, AIR 1936 Rangoon 1, the facts of the case were that the deceased Maung Maung was the brother-
in-law of Convict Nga Ba Sein. Both of them lived in houses with a joint compound. On the evening of 5th Dec 1934, Nga Ba Sein, under the influence of liquor, started hurling abuses at his brother-in-
law Maung Maung, who asked him to desist because he had guests in his house. However, the accused refused and kept using foul language. On this, Maung Maung took a pitchfork, and both of them went towards the side of the house and were not visible to other occupants. After some time, the residents heard the sound of several blows, followed by silence. On rushing to the spot, the wife of Maung Maung saw her husband lying unconscious. The family took him to the hospital, and before regaining consciousness, he ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 33 passed away. In the Post Mortem Examination, the Doctor noticed a punctured wound on the forehead, and the piercing was 5 inches .
deep into the skull. The accused was put to trial. The Counsel for the accused openly advised his client to admit the assault and plead the right of private defence, but the accused persisted in denying the incident. The Trial Court, although convicted the accused under Section 304 IPC, but did not consider the plea of private defence because it was not specifically pleaded and the incident was denied altogether. In the appeal, the Rangoon High Court, affirming the conviction and sentence, concluded that the conviction under Section 304 IPC was right but for reasons other than stated by the Trial Court, and held that the accused had exceeded his right of private defence. The reasoning behind such a conclusion, in the words of Dunkley J, is as follows, "Moreover, in this particular case it is not correct to say that the right of self-defence was not pleaded. It was pleaded by the pleader who was appearing for the appellant and if the pleader of the accused cannot set up a defence on his behalf, then I would ask what is the use of his appearing at the trial at all. The accused himself may on his own behalf take up a line of defence but it is equally open to his pleader on his behalf to take up another and alternative line of defence. And that is what was done in the present case. There is no doubt that the appellant had a right of private defence of his body against the deceased. But nevertheless seeing that the circumstances lead to the inference that the appellant killed the deceased with the deceased's own weapon, it must further be inferred that the appellant managed to wrest his weapon away from the deceased. As soon as he did so his right of private defence, of course, ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 34 ceased, and consequently it must be held that in killing the deceased he exceeded the right of private defence of his body."
.
INITIAL BURDEN NEVER WAIVES:
73. Another angle to analyze the issue is that of "burdens."
The burdens prosecution can never waive. For instance, based on the suggestions of defence, to a complainant, during her cross-
examination, that the complaint is verbatim the same as was told to her by the victim, the prosecution cannot seek dispensation of the victim from recording her statement on oath. The burden on the Prosecution to prove its case is independent of the suggestions of the Defence Counsel.
74. In Rangappa Goundan v. Emperor, AIR 1936 Madras 426, a division bench of Madras High Court observed, "It is an elementary rule, that except by a plea of guilty, admissions dispensing with proof, as distinguished from admissions which are evidential, are not permitted in a criminal trial (see Phipson on Evidence, p. 19)".
DOCTRINE OF REVERSE BURDEN:
75. Glanville Williams, in 'Textbook of Criminal Law' (2nd Edn.) page 56, writes, "Harking back to Woolmington, it will be remembered that Viscount Sankey said that "it is the duty of the prosecution to prove the prisoners guilt, subject to the defence of insanity and subject also to any statutory exception". ... Many statutes shift the persuasive burden. It has become a matter of routine for Parliament, in respect of the most trivial offences as well as some serious ones, to ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 35 enact that the onus of proving a particular fact shall rest on the defendant, so that he can be convicted "unless he proves" it."
.
76. In M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors., 2008 (7) SCALE 624, in a case where the constitutionality of the provisions of Sections 18(2) and 18 (3) of the Foreign Exchange Regulation Act, 1973 were questioned on the ground of infringing the 'equality clause' enshrined in Article 14 of the Constitution of India, Supreme Court holds, "16. A legal provision does not become unconstitutional only because it provides for a reverse burden. The question as regards burden of proof is procedural in nature. [See Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 and M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39]
17. The presumption raised against the trader is a rebuttable one.
Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution.
The accused in such an event would be entitled to show that he has not violated the provisions of the Act." ...
77. In Syed Akbar vs. State of Karnataka, AIR 1979 SC 1848, Supreme Court holds, "28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non- application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 36 accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and .
the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt.
Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, "simple lack of care such as will constitute civil liability, is not enough"; for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied `reckless most nearly covers the case." r
78. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, Supreme Court, while dealing with a matter under Narcotics Drugs and Psychotropic Substances Act, 1985, holds, "40. The provision for reverse burden is not only provided for under the special acts like the present one but also under the general statutes like the Indian Penal Code. The Indian Evidence Act provides for such a burden on an accused in certain matters, as, for example, under Section 113A and 113B thereof. Even otherwise, this Court, having regard to the factual scenario involved in cases, e.g., where husband is said to have killed his wife when both were in the same room, burden is shifted to the accused."
Supreme Court further holds, "60. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 37 burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself."
.
79. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, Supreme Court holds, "23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process, the Courts shall have regard to the common course of natural events, human conduct etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. We make it clear that this Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference."
80. In Tomaso Bruno v. State of U.P., Supreme Court of India, 2015(7) SCC 178, three Judge bench of Supreme Court holds, "18. The principle underlying Section 106 of the Evidence Act is that the burden to establish those facts, which are within his personal knowledge is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference may be drawn against him"...
81. In Jagdish Budhroji Purohit v State of Maharashtra, AIR 1998 SC 3328, Supreme Court observed, ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 38 "5. ...The factory belonged to the appellant. He was the sole proprietor. In view of these facts and circumstances, it was necessary for the appellant to explain how the offending articles came to be found from his factory. He did not offer any plausible .
explanation."...
82. In Dilip Mallick v. State of West Bengal, AIR 2017 SC 1133, Supreme Court holds, "In the examination under Section 313 Cr. P.C. the accused denied any knowledge of the crime and alleged false implication. Section 106 of the Indian Evidence Act, 1872 imposes an obligation on the accused to explain as to what happened after they were last seen together."
ADMISSIONS:
83. Courtney Stanhope Kenny in his Treatise, "OUTLINES OF CRIMINAL LAW", based on lectures delivered in the University of Cambridge, (Fifteenth Edition), Cambridge (1936), stated as follows, Rule IV. In criminal proceedings Admissions made by (or on behalf of) a party to the litigation are received in evidence less readily than in civil cases. (P. 467) A further difference between civil and criminal courts, in their treatment of admissions, concerns such admissions as are made by mere agents. In civil proceedings, where-ever the acts of an agent will bind the principal his admissions will also bind him, if made in the same affair and at the same time, so as to constitute a part of the transaction. (Thus, in an action against a railway company by a passenger for the loss of his luggage, the admissions of the station-master as to the way in which the loss took place, made by him the next day after the loss, in answer to inquiries for the luggage, are good evidence against the company, Morse v. C.R. Railroad (1856), 6 Gray 450). But criminal law does not adopt this wide rule; it never holds a principal liable for admissions made by his agents except when he has authorized them expressly. Accordingly an admission made by a prisoner will not be evidence against his accomplices in the crime, unless it had been expressly authorized by them.1 (Rex v. Pilley (1922), 16 Cr.
::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 39App. R. 138). Yet, as we have seen (ante, P.341), so soon as a common criminal purpose has been shewn, evidence of the acts of one accomplice, though done in the absence of the others, will be admissible against all of them (P. 472).
.
84. In Jagannath Rana v. State, 1994 (1) Crimes 116, Orissa High Court observed,
8. As regards the first question, the admission by way of suggestion by an Advocate is admissible in evidence only under section 18 of the Evidence Act which deals with admission by party to proceeding or his agent. A statement made by an agent or a party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by the party to make it, is an admission and admissible against the party, provided that the statement fulfils the evidentiary rrequirement enjoined in section 17. But it has to be seen whether an admission by an agent can be treated as evidence in a criminal case.
EFFECT OF SUGGESTIONS MADE DURING CROSS-EXAMINATION:
85. Procedural law has become so complicated that the accused who chooses to tread alone is unlikely to reach her destination. A lawyer is a guide, who holds the hand of the accused, apprises her of the legal benefits guaranteed to her by the law of the land, and ensures that the trial is fair and her liberty does not curtail without following the due process of law. Defence counsel does make binding suggestions, which are comparable to a medical procedure involving amputation of a limb to save her life. For instance, the offences where the burden of proof is on the accused, like that the coitus was consensual; the injuries were inflicted in ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 40 private defence; plea of Alibi, post-dated cheque had been issued to discharge a liability which subsequently never arose, etc. Even this .
evidence is to be read only in light of the stand of the accused in her statement recorded under Section 313 CrPC. However, in cases where the burden is entirely on the prosecution to prove its case and still, by mistake, lack of expertise, or misunderstanding of the facts by Counsel, she throws unwarranted suggestions, which were either premature or otherwise were not at all required in the facts and circumstances of such case, then it shall be hazardous to rely on such suggestions. The counsel is provided to safeguard the legal interest of the accused and not to facilitate proof of her guilt.
Hypothetically, suppose counsel for defence makes a loose suggestion to a Doctor, who had conducted Post Mortem Examination, that the injury was not possible by weapon 'X' but by weapon 'Y', and to the Investigating officer that the accused had inflicted the fatal blow by weapon 'Y' and not by the weapon 'X', then, in the absence of other evidence, would it be prudent to arrive at a conclusion of guilt only on those suggestions? The answer is NO! The Defence Counsel is supposed to comprehend her suggestions with extreme care, great caution and meticulous preparations, which is comparable to the prescription of salts and its dosage by a Physician to her patient, depending upon illness, her ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 41 age and so many other factors, and where excess kills, less does not work and expired medicines lose potency.
.
86. In Sakariya v. State of Madhya Pradesh, 1991 CrLJ 1925, Madhya Pradesh High Court observes, "11. The submission made by the learned counsel, deserves consideration. The learned counsel is right when he says that major portion of trial Court's discussion is devoted to the suggestions made by the defence counsel in cross-examination. But before considering the defence-stand and the evidence in support thereof, it is essential for the Court to reach a conclusion and record a positive finding about the proof of the prosecution case. The falsity of a suggestion, as in the instant case, consent thrown to a witness would not by itself prove the prosecution case and the guilt of the accused, though in a given case, depending on circumstances, it may be an additional circumstance along with other duly established and proved circumstances against the accused. Since it was suggested to the prosecutrix Surli in her cross-examination that the act was committed with her consent, what the trial Court appears to have done is starting with assumption of proof of rape and negativing consent convicted the appellant. This approach, considering the defence plea first, before dealing with the prosecution evidence and reaching a conclusion based thereon, is completely wrong. What is its effect is another matter but such an approach on the part of the trial Court cannot be approved of as it does not augur well with well-established and well-recognised concepts of criminal jurisprudence.
12. As has been noted above, the trial Court has not adverted to the plea taken by the accused in his statements recorded Under Section 313, Criminal Procedure Code. The learned Judge has remained confined to and content with the suggestion about consent, made to Surli in her cross-examination.
13. The trial Court has not gone beyond this suggestion and not even looked into the appellant's statement recorded Under Section 313, Criminal Procedure Code, in order to ascertain the defence- plea, not looking into the statement recorded under Section 313, Criminal Procedure Code and merely confined a suggestion thrown to a witness, is certainly not fair. Going through the statement of the accused and his plea as recorded by the trial Court, it was a case of plain denial and false implication. Now coming to the question of suggestion about consent on her part made to prosecutrix Surli, it is this suggestion, which has been virtually substituted for proof of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 42 guilty by the trial Court and, therefore, needs to be considered in all its aspects.
14. The relevant section, regarding admission, is Section 17 and Section 18 of the Evidence Act. Section 18 of the Evidence Act .
deals with admission by party to proceeding or his agent. Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross- examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross- examination as has been erroneously done by the learned Judge of the trial Court in the instant case. The proof of guilty, required of the prosecution does not depend on the suggestion thrown to a witness.
15. On the basis of mere suggestion about consent thrown to the prosecutrix, the learned Judge of the trial Court has virtually dispensed with proof of offence of rape. An accused, as has been discussed above, is not bound by such a situation or implied admission made by the counsel.
... ...
19. In criminal cases a suggestion thrown to a prosecution witness under cross-examination by defence counsel cannot be used as an implied admission so as to dispense with proof of the prosecution case. It is only the plea of guilty, pleaded by an accused which can relieve the prosecution of its burden of proof. The learned Judge of the trial Court contrary to these settled principles of criminal jurisprudence has acted upon the suggestion made to the prosecutrix, about her being consenting party to the act."
87. In Harpal v. State of Haryana, 2010 (2) RCR (Cri) 504, Punjab & Haryana High Court observed, "11. As has been noted above, the trial court has not adverted to the plea taken by the accused in the statement recorded under section 313 of the Code of Criminal Procedure. The learned trial Judge remained confined to the suggestions about consent etc. made to prosecutrix and other witnesses during the course of cross-examination. In fact, the trial court has not gone beyond this suggestion and not even looked into the appellant's statement recorded under section 313 of the Code of Criminal Procedure in order to ascertain the defence plea. Going through the statement of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 43 the accused and his plea as recorded by the trial court, it was a case of plain denial and false implication. At this stage, I would like to peep through the provisions of sections 17 and 18 of the Evidence Act regarding admission. Section 18 of the Evidence Act .
deals with admission by party to proceeding or his agent. Whether a suggestion put by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestion put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross-examination as has been erroneously done by the learned Judge of the trial court in the instant case. The proof of guilty required of the prosecution does not depend on the suggestion put to a witness. I would also like to observe that on account of mere suggestions to the prosecutrix, the learned trial Judge has virtually dispensed with the proof of offence of rape.
88. However, in Manish Thakur @ Monu v. State of Himachal Pradesh, 2011 (25) R.C.R. (Criminal) 32, a single judge of this High Court holds, "18. On the close scrutiny of the statement of the prosecutrix and also the suggestions put to her with respect to consensual sexual intercourse, at least it stands established that the sexual intercourse had taken place with the prosecutrix and at the same time the identity of the accused also stands established."
89. In Koli Trikam Jivraj and another v. The State of Gujarat, AIR 1969 Guj 69, Division Bench of Gujrat High Court observes, "15. To put it shortly Mr. Nanavati in advancing this argument merely repeated the main ground on which the conviction of the appellants was based by the learned Sessions Judge viz., that the accused no. 1 and accused no. 2 admitted their presence at the scene of the offence and that they were beaten by Dharamshi and Talshi; If the lawyer of the accused puts a suggestion to a prosecution witness that a particular event happened, or happened in a particular manner, then it cannot be implied that the lawyer ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 44 commits himself to such an assertion. Suggestions put in cross- examination are no evidence at all and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that .
in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of a prosecution witness.
16. Moreover the lawyer who appears for the accused keeping in mind the facts of the case that he defends, has the right to take up a defence that he thinks just and proper."
90. After referring to Nga Ba Sein v. Emperor, (AIR 1936 r to Rangoon 1), the Court went on to observe, "Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the case. See Phipson's Manual of Evidence, Eighth Edition Page 134. It is, therefore, evident that the role that a defence lawyer plays in a criminal trial is that of assisting the accused in defending his case. The lawyer has no implied authority to admit the guilt or facts incriminating the accused. The argument of Mr. Nanavati that suggestion put by the lawyer of the accused in the cross- examinations of the prosecution witnesses amounts to an admission under section 18 of the Indian Evidence Act cannot be accepted."
91. The decision in Koli Trikam Jivraj was followed by High Court of Himachal Pradesh in Budh Ram v. State of Himachal Pradesh, 2010 CriLJ 1818 and also in Rajesh Kumar v. State of H.P., 2013 Law Suit (HP) 591 ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 45
92. However, later on, in Tarjubhai Narsinghbhai Rathwa v.
State of Gujarat, 2014 (6) RCR(Cri) 297, a Division Bench of Gujrat .
High Court observed, "29. To our mind, with great respect, the views expressed by Their Lordships in Koli Trikam Jivraj does not lay down the correct proposition of law in view of the subsequent decisions of the Supreme Court on the issue in question.
30. In Tarun Bora alias Alok Hazarika v. State of Assam, 2002 CrLJ 4076, a three Judge Bench of the Supreme Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365 of the Indian Penal Code read with Section 3 (1) and 3 (5) of the Terrorists and Disruptive Activities (Prevention) Act.
30.1 The Supreme Court while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by the Supreme Court in paragraph 15, 16 and 17:
"15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is about 6-7 kms. away from his village Sakrahi. The witness identified the appellant-
Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination the witness stated as under:
"Accused-Tarun Bora did not blind my eyes nor he assaulted me."
17. This part of cross-examination is suggestive of the presence of accused-Tarun Bora in the whole episode. This will clearly suggest the presence of the accused- Tarun Bora as admitted. The only denial is the ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 46 accused did not participate in blind-folding the eyes of the witness nor assaulted him."
31 In Rakeshkumar alias Babli v. State of Haryana, 1987 AIR(SC) .
690 the Supreme Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the Indian Penal Code. While re-appreciating the evidence on record, the Supreme Court noticed that in the cross-examination of the PW 4, Subesing, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Supreme Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote with profit the following observations made by the Supreme Court in paragraph 8 and 9 as under:
r "8. P.W. 3, Bhagat Singh, stated in his examination-in-
chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross- examined as to how and in what manner he Could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and it was not possible to identify the assailants of the deceased.
9. In his cross-examination, P.W. 4, Sube Singh, stated that the accused Dharam Vir. was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, P.W. 4 said "It is not correct that Dharam Vir accused was wearing a shirt of cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence."
32. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 47 the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any .
value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions. ... ...
38. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eye witnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eye witnesses, the reply to those establishing the presence of the accused at the house of the deceased in the night hours with a knife. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
39. In the present case, it is evident from the line of cross examination that the defence counsel wanted to establish that the PW 4, Gamarsing, was not an eye witness to the incident as he had reached the house of the deceased only after the assault was completed but in the process made such suggestions to the witness the answers to those fully establishes the presence of the accused at the time of the incident. If that be so, it would not lie in the mouth of the accused to say that such suggestions could be a blunder or a mistake on the part of his counsel and would not bind him in any ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 48 manner. The accused cannot disown his counsel on the principle that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation. Ordinarily, the defence counsel .
would first discuss the matter with the accused and obtain instructions to get a fair idea as to how the incident had occurred and then chalk out the line of defence. In the present case, a specific question by way of a suggestion was made to the witness as regards the colour of lungi worn by the accused at the time of incident. According to the witness, the lungi was of reddish colour whereas a suggestion was made that the lungi was not red in colour but was of some other colour. What could be the basis of such a suggestion. It is only the accused who could have personal knowledge of the colour of lungi and perhaps having discussed about the same with the counsel, the question in the form of a suggestion was made to the witness. Otherwise, how the defence counsel know that the accused had not worn a lung of reddish colour but of some other colour. If after obtaining such instruction from the accused suggestions are made to the witness by the advocate then it could not be said that such suggestions were not binding to the accused and the same were a part of the defence strategy. Take for instance, ordinarily the defence counsel would brief his client i.e. the accused to give a particular reply to the question put to him in his further statement recorded under Section 313 of the Criminal Procedure Code. If to a particular question an answer is given by the accused incriminating himself then could be get out of the same by submitting that his counsel had asked him to give such a reply which, if incriminating in any manner, would not bind him.
40. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law.
For example, it is obligatory on the part of the prosecution to prove the postmortem report by examining the doctor. The accused cannot admit the contents of the postmortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
41. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 49 the Court along with other evidence on record to determine the guilt of the accused."
PREJUDICES TO THE ACCUSED DURING TRIAL:
.
93. Rafiq Ahmad alias Rafi v. State of U.P., (2011) 8 SCC 300, Supreme Court observed, "35. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence.
It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial:
(a) The accused has the freedom to maintain silence during investigation as well as before the court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law;
(b) Right to fair trial;
(c) Presumption of innocence (not guilty);
(d) Prosecution must prove its case beyond reasonable doubt.
36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice.
"Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court.
37. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof i.e. the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The courts are required to examine both the contents of the allegation of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 50 prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the court has .
to ensure that the ends of justice are met as that alone is the goal of criminal adjudication."
94. In Ram Awadh v. State of U.P., 1999 Cr.L.J. 4083, the Allahabad High Court held, "14. ...A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality."
95. In Bansidhar Mohanty v. State of Orissa, AIR 1955 SC 585, a four member bench of Supreme Court holds, "We do not think it is any part of the duty of the defence advocate to fill up the lacunae in the evidence adduced by the prosecution."
ANALYSIS OF ABOVE DISCUSSION:
96. In a Criminal case, the suggestions of a defence counsel, neither amount to admissions nor evidence but the answers given by witnesses, on such suggestions, are admissible in evidence.
However, the Court may also consider suggestions made by the defence counsel in aid to the other evidence proved by the Prosecution, keeping in view the following aspects:
(a) The suggestions do not amount to confession on behalf of the accused;
(b) The factual matrix in which the Defence Counsel had put the suggestions incriminating to her client;::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 51
(c) The suggestions were not premature;
(d) The suggestions were required in the facts and
.
circumstances of case;
(e) The trend of suggestions of Defence to the witnesses,
from inception to completion of the trial;
(f) The suggestions were made to discharge the statutory
and legal burden;
(g) The defence counsel did not exceed her brief;
(h) The suggestions are in consonance with the explanation
offered by accused under Section 313 CrPC.
97. Coming to the factual matrix of the present case, although it is difficult to ascertain as to why this witness was cross-examined without serving any purpose, still it only refers to the statement recorded by the Judicial Magistrate as well as the Investigating Officer, which given the preceding discussions, cannot be relied upon because of the incredibility of the witness.
98. In view of the complete analysis of the evidence and the application of law, the prosecution has failed to prove the culpable homicide as well as connection of the accused with the death of Rajeev Sharma @ Vicky. The prosecution has failed to prove its case beyond reasonable doubt.
99. The judgment of acquittal passed by the Trial Court is well reasoned and is based on correct and proper appreciation of ::: Downloaded on - 15/11/2019 20:26:14 :::HCHP 52 evidence. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
.
100. In view of the above discussions, we find that there is no merit in the appeal and hence the same is dismissed. The judgment rendered by the learned Trial Court in Sessions Case No. 36-G/VII-
2009, dated 23.10.2010, is affirmed.
101. Bail bonds furnished by the accused are discharged. All pending applications (if any) are closed.
Registry to return the records.
(Tarlok Singh Chauhan), Judge.
(Anoop Chitkara), Judge.
November 15th , 2019 (PK)
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