Himachal Pradesh High Court
Thalia Ram Alias Nagu vs State Of H.P on 9 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2024:HHC:8171 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 454 of 2019 a/w .
Cr.A. No. 264 of 2020
Reserved on: 03.09.2024
Date of decision: 09.09.2024
Cr.A. No. 454 of 2019
Thalia Ram alias Nagu ...Appellant
Versus
State of H.P. ...Respondent
Cr.A. No. 264 of 2020
Mani Ram ...Appellant
r Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No. For the Appellant(s) : Mr. N. S. Chandel, Sr. Advocate with Mr. Vinod Gupta and Mr. Kshitij Thakur, Advocates, for the appellant in Cr.
Appeal No. 454 of 2019.
Mr. Dev Raj, Advocate, for the appellant in Cr. A. No. 264 of 2020.
For the Respondent: Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy. A.Gs.
Tarlok Singh Chauhan, Judge ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 2 2024:HHC:8171 Since both these appeals arise out of the same judgment, therefore, they were taken up together for hearing .
and are being disposed of by a common judgment.
2. The appellant-Thalia Ram has filed the instant appeal (Cr. A. No. 454 of 2019), against the judgment of conviction and sentence passed by the learned Special Judge, Mandi, District Mandi, H.P. whereby he was sentenced to undergo:-
i) Rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs. 5,000/- (Five thousand rupees only) for the commission of said offence and in default of payment of fine, he was directed to further undergo rigorous imprisonment for a period of six months.
ii) Rigorous imprisonment for a period of 5 years under Section 366 IPC and to pay a fine of Rs. 5,000/-
(Five thousand rupees only) for the commission of said offence and in default of the payment of fine, he was directed to further undergo rigorous imprisonment for a period of six months.
iii) Rigorous imprisonment for a period of 5 years under Section 364 IPC and to pay a fine of Rs. 5,000/- (Five thousand rupees only) for the commission of said offence and in default of the payment of fine, he was directed to further undergo rigorous imprisonment for a period of six months.
iv) Rigorous imprisonment for a period of 5 years under Section 201 IPC and to pay a fine of Rs. 5,000/- (Five thousand rupees only) for the commission of ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 3 2024:HHC:8171 said offence and in default of the payment of fine, he was directed to further undergo rigorous .
imprisonment for a period of six months.
v) Simple imprisonment for a period of 1 year under section 3 of the S.C. & S.T. Act and to pay a fine of Rs. 5,000/-(Five thousand rupees only) for the commission of said offence and in default of the payment of fine, he was directed to further undergo simple imprisonment for a period of six months.
3. to All the sentences were directed to run concurrently.
As regards the complainant-Mani Ram, he has filed Cr. A. No. 264 of 2020, for enhancement of conviction and sentence as passed by the learned Special Judge, Mandi, District Mandi against the appellant-convict Thalia Ram.
4. Brief facts of the prosecution case are that on 06.01.2015 PW-16 complainant Sh. Mani Ram came to police station and reported the matter that he was resident of village Rahi, P.O. Bali Chowki, District Mandi, H.P. and was an agriculturist. He stated that he has three daughters and two son, out of which Huma Devi was 25 years old and unmarried and his remaining children were married. On 01.01.2015, he had gone to Bali Chowki for his personal work and at about 4:00 p.m., when he came back to his house at Rahi, he did not find his daughter Huma Devi in the house. On this, PW-16 complainant asked his wife Smt. Mani Devi about Huma Devi, on which she told him ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 4 2024:HHC:8171 that she had gone to the house of her sister at Sainj Barmari.
Thereafter, PW-16 enquired from his daughter Heera Devi as to .
whether Huma Devi has come there or not, on which Heera Devi told him that she has not visited her home. On this, PW-16 complainant made search of his daughter in his relations and at different places but she was not located. Complainant has stated that he came to know from some persons that Thalia Ram alias Nagu s/o Heera Lal, r/o village Rahi, P.O. Bali Chowki, District Mandi, H.P. allured his daughter Huma Devi, on the pretext of getting marriage with her from his house on 01.01.2015. The entire incident was narrated by PW-16 complainant Mani Ram in the police station Aut, on 06.01.2015, on the basis of which, FIR under sections 363 and 366 IPC was registered.
5. During investigation, ASI Subhash Chand, P.P. Balichowki recorded the statement of Smt. Rupa Devi, Ward Member, Gram Panchayat Devdhar, Bhag Singh and Bhup Singh sons of Mani Ram resident of village Rahi u/s 161 Cr.P.C. Smt. Rupa Devi told in her statement that she had seen Huma Devi with appellant Thalia Ram @ Nagu, on 01.01.2015 at Larji. Bhag Singh and Bhup Singh also stated in their statements that appellant Thalia Ram had enticed their sister on the pretext of performing marriage with her. The deceased Huma Devi was ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 5 2024:HHC:8171 searched in the entire area and also at the suspected places told by the complainant but the deceased was not found anywhere.
.
6. On 31.01.2015, appellant-Thalia Ram surrendered in the police station, Aut. After completing all the requirements of arrest, he was arrested on 31.01.2015 at about 7 p.m. at P.S. Aut. Appellant-Thalia Ram was medically examined and his medical report was obtained. On 2.2.2015, statement of father of victim Mani Ram, Sunny Sohal s/o Pardeep Kumar and Parkash Chand s/o Bali, were recorded u/s 161 Cr.P.C. and from the statement of the witnesses, it was revealed that appellant-Thalia Ram kidnapped victim Huma Devi with an intention to kill her and on this section 364 IPC was added in the case. Appellant-
Thalia Ram was interrogated on 03.02.2015. Thereafter, the matter was investigated by SHO Lokender Singh Negi of P.S. Aut, who recorded disclosure statement of the appellant u/s 27 of Evidence Act. On the identification of appellant - Thalia Ram @ Nagu, police recovered a dead-body in a rotten condition, which was identified by local people and father of deceased Mani Ram, brother of deceased Bhag Singh, as of Huma Devi, on the basis of Aadhar Card and clothes worn by her. Police prepared seizure memo qua recovery of dead-body of deceased Huma Devi, articles, identification and recovery in the presence of witnesses.
Police has collected controlled soil from the spot 'Banshgarh' for ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 6 2024:HHC:8171 sample and prepared the spot map, clicked photographs of dead-
body and articles and also conducted videography of the same.
.
Statement of the witnesses were recorded. Team of RFSL, Mandi and Dy. S. P. Mandi also visited the spot. After identification of the dead-body of deceased Huma Devi and inspecting the same photographs of the same were clicked and form 24.35 A, B, C and 25.39 were filled and section 302 IPC was added in this case.
7. The postmortem of the dead-body was conducted at Zonal Hospital, Mandi by the special team of doctor on 4.2.2015.
Thereafter, the dead body was handed over to the relatives of deceased for cremation. Postmortem report was obtained from M.O. Zonal Hospital Mandi. The Medical Officer stated in his final opinion that "opinion regarding cause of death will be given after chemical analysis report of viscera".
8. Appellant-Thalia Ram remained in police custody w.e.f. 31.01.2015 to 07.02.2015 and during remand, he had not recovered to police his, as well as mobile phones of Huma Devi, shoes of deceased Huma Devi. Appellant-Thalia Ram threw the above articles (evidence) after burning the same in the river, on the basis of which, section 201 IPC was added in this case.
9. During investigation, police procured birth certificate of deceased Huma Devi from Secretary, Gram Panchayat Balichowki vide which, date of birth of deceased Huma Devi was ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 7 2024:HHC:8171 found to be 27.9.1987 and section 363 IPC has been deleted in this case. Thereafter, police through Medical Officer, PHC Bali .
Chowki, took blood sample of father of deceased Huma Devi, Mani Ram and mother of deceased Huma Devi, which were preserved in the blood sample FT Card for DNA test. The Medical Officer, Zonal Hospital Mandi sent the viscera, clothes and soil, sample of soil for examination to RFSL Mandi, H.P. The samples taken for DNA test of deceased Huma Devi and the samples of blood preserved by M. O. PHC, Gohar, of the parents of deceased for conducting DNA test were sent to SFSL, Junga. During investigation, record of call details of mobile phones of appellant and deceased Huma Devi bearing mobile No.98824-41180 and 98828-25521 were obtained and after analyzing the same, it was found that conversation for 17 times had taken place between the two on mobile phones on 01.01.2015 and except this, both have not talked to any other number.
10. As per statement of Smt. Rupa Devi (PW4) Sunny Sohal (PW6), Jagdish Chand (PW5) and Parkash Chand s/o Sh.Bali Ram r/o Niuli, Sub-Tehsil Sainj, District Kullu, H.P. had seen deceased Huma Devi and appellant Thalia Ram in the area of Larji on 01.01.2015 and both were talking about solemnizing of marriage. On 12.2.2015, police obtained caste certificate of deceased Huma Devi Ex.PW7/C and of appellant Thalia Ram ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 8 2024:HHC:8171 Ex.PW7/D from Halqua Patwari and got attested the same from Naib Tehsildar, Bali Chowki, vide which, Halqua Patwari certified .
that Huma Devi was Schedule Caste (Koli) and appellant Thalia Ram as Rajput. On the basis of caste certificate and statement of complainant Mani Ram, section 3 of SC & ST Act, was added in this case and statements of witnesses were recorded.
11. Thereafter, the matter was investigated by Dy. S.P. (PW24). During investigation, police has procured copy of Aks Musabi from Halqua Patwari and Kanungo of Revenue Department, copy of musabi, tatima of spot and copy of jamabandi and also recorded the statements of witnesses.
Report of spot inspection was procured from RFSL Mandi. Result of viscera was received from RFSL Mandi and Assistant Director RFSL Mandi opined that, "the contents of the parcels were subjected to physical and chemical analysis. No poison alcohol could be detected in the contents of above said parcels" and postmortem was procured from Medical Officer, Zonal Hospital Mandi, who opined in his report that "in absence of any appreciable fatal troma (due to decomposition) and missing neck structures and absence of any alcohol of poison in report of viscera, cause of death cannot be opined". Result of clothes and soil send to RFSL Mandi for examination is procured and Assistant Director RFSL Mandi opined in his report that, "the ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 9 2024:HHC:8171 aforementioned exhibits have been examined physically, chemical and microscopically in the laboratory". On the basis of .
above mentioned examination, the result is as: "examined soil adhered on exhibit E/1 and the soil found in exhibit E/2 was found similar on the basis of chemical reaction with chemical and microscopic examination".
12. During investigation, police recovered one white colour handkerchief, two glass bottle in broken condition having label of liquor "Officer Choice", one plastic bottle and one empty packet of "Four Square cigarette", which were taken into possession by the police vide seizure memo. From the entire investigation, a case for the commission of offence under sections 366, 364, 302 and 201 IPC and section 3 of SC & ST Act, was made against the appellant.
13. After completion of the investigation, PW24 prepared the challan and presented the same before the Court of learned Judicial Magistrate 1st Class, Chachiot at Gohar on 22.4.2015 and it was committed by learned Judicial Magistrate 1st Class, Chachiot at Gohar, District Mandi for trial vide order dated 15.05.2015.
14. Copies of challan were supplied to the appellant. On ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 10 2024:HHC:8171 hearing the parties, charges were framed against the appellant for the aforesaid offences to which, he pleaded not guilty and .
claimed trial.
15. In order to prove its, the prosecution has examined as many as 26 witnesses.
16. After the closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. He denied the case of the prosecution and stated that the witnesses have deposed against him falsely due to enmity and further stated that he is innocent. He further stated that deceased called him on telephone to come to Larji bus terminal and he went there by bus. The deceased started pressurizing him to marry but he refused. Later on, he and deceased Huma Devi came back to their houses, however, deceased instead of going to her home went to Bansgarh cave in the night, from where she again called him to come but he told her that he would come, in the morning time. He went there in morning and found her dead. He got frightened and remained underground due to fear.
17. After hearing the parties under Section 232 Cr.P.C.
and perusing the record, the appellant was called upon to enter on his defence. The appellant examined one witness Parmod Kumar in his defence.
::: Downloaded on - 10/09/2024 20:30:29 :::CIS 112024:HHC:8171
18. The learned trial court, after evaluating the oral as well as documentary evidence, convicted and sentenced the .
appellant-Thalia Ram, as aforesaid.
19. It is vehemently argued by Mr. N. S. Chandel, learned Senior Counsel assisted by Mr. Vinod Gupta and Mr. Kshitij Thakur, learned Advocates for the appellant in Cr. A. No. 454 of 2019, that the findings accorded by the learned Court below are totally perverse and deserve to be set aside.
20. Mr. Navlesh Verma, learned Additional Advocate General, would argue that the appellant has been convicted and sentenced for serious and heinous crime and therefore, such findings being based on evidence on record warrant no interference and therefore, the appeal be dismissed.
We have heard learned counsel for the appellant and learned Senior Additional Advocate General and have gone through the records of the case carefully.
21. The cardinal principle of criminal jurisprudence has remained impassive. The prosecution has to prove its case beyond all reasonable doubts. Appearance of serious doubt in the prosecution case only helps the case of accused. More serious the offence, more arduous is the duty cast upon prosecution to discharge its burden strictly in accordance with law. In absence of direct evidence, circumstances relied upon by ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 12 2024:HHC:8171 the prosecution have to satisfy the same standard of proof i.e. beyond all reasonable doubts. Once this barrier is successfully .
crossed, it is to be shown that all the circumstances form a complete chain of facts suggesting only one hypothesis i.e. the guilt of the accused.
22. In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 Hon'ble Supreme Court held as under:-
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of 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."::: Downloaded on - 10/09/2024 20:30:29 :::CIS 13
2024:HHC:8171
23. In Ramanand @ Nandlal Bharti Vs State of Uttar Pradesh reported in 2022 SCC Online SC 1396, the legal .
position has further been reiterated as under:-
PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIR-
CUMSTANTIAL EVIDENCE
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special infer -
ence. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandu-
mis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as fol- lows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly estab-
lished;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the con -
::: Downloaded on - 10/09/2024 20:30:29 :::CIS 142024:HHC:8171 clusion that within all human probability the crime was committed by the accused and none else; and .
4. The circumstantial evidence in order to sustain convic-
tion must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evi- dence, the judgment remains essentially inferential. The inference is drawn from the established facts as the cir-
cumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circum- stances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
24. It will also be gainful to reproduce following extract from the judgment passed by the Hon'ble Supreme Court in case titled as Ramesh Bahi and another vs. State of Rajashtan (2009) 12 SCC 603:-
"7. In support of the appeal learned counsel for the appellants submitted that the circumstances highlighted do not establish the accusations. Learned counsel for the respondent-State on the other hand supported the judgment.::: Downloaded on - 10/09/2024 20:30:29 :::CIS 15
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8. "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when .
all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 16 2024:HHC:8171 hypothesis of the guilt of the accused and totally inconsistent with his innocence'.
.
12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'
13. In State of U.P. v. Ashok Kumar Srivastava, (1992)2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.::: Downloaded on - 10/09/2024 20:30:29 :::CIS 17
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14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of .
circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
'10. ....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 18 2024:HHC:8171 the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a .
conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of 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 ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 19 2024:HHC:8171 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 aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v.
Jagbir Singh and Anr. (2003 (11) SCC 261) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE"
25. We are governed by rule of law. No conviction can be recorded on assumption. Prosecution has to discharge its burden by proving the guilt of accused beyond all reasonable doubts and for such purposes, it has to prove the fact in issue on the basis of relevant and admissible evidence. Merely, because police get knowledge about the culprit either from illegal confession extracted from him or from any other source will not absolve the prosecution from its duty to prove the guilt of the accused in accordance with law.
26. Admittedly, there is no eye-witness in the instant case. The prosecution has based its case entirely on circumstantial evidence. In order to convict the appellant, the prosecution had relied on the following circumstances before the learned trial court:-
(i) Last seen together.
(ii) Disclosure statement alleged to have been made by the appellant under Section 27 of the Indian Evidence Act.::: Downloaded on - 10/09/2024 20:30:29 :::CIS 20
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(iii) Recovery of dead body.
(i) Last seen together .
27. It is the case of the prosecution that the appellant had been last seen in the company of the deceased and in support of such contention, has examined three witnesses.
28. PW-4 Rupa Devi stated that she was elected member of the Gram Panchayat Devdhar and on 01.01.2015 she was going to her aunt Surma Devi at Sainj. At about 2:00 p.m., when she was there at Larji Sain Chowk, the deceased Huma Devi met her. She inquired from the deceased about her destination, who in turn told her that she was going to solemnize marriage with the appellant. The deceased requested her to stop for some time till the arrival of the appellant as she was alone. She further stated that she could not wait for the appellant alone and begun weeping. Thereafter, PW-4 stopped there till the arrival of the appellant. She then boarded the bus which came at 5:00 p.m. and in the meantime, the appellant also reached there. The deceased asked her to leave so that appellant may not seen her there. Thereafter PW-4 left for Sainj. On the second day, Mani Ram, father of the deceased inquired from her about deceased Huma Devi, she then told him that Huma Devi had met her at Larji and disclosed that she was going to solemnize her marriage with the appellant. The father of the deceased then requested ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 21 2024:HHC:8171 her to contact the appellant on his mobile and she accordingly contacted the appellant on his mobile and he in turn, stated to .
her that he had gone to Chimta and would come back after half an hour. Thereafter the appellant switched off his mobile phone and did not turn up.
29. On being cross-examined, PW-4 stated that the police met her on 07.01.2015. The police conducted search in the houses of Mani Ram and Hira Ram, however, nothing incriminating was found in their houses. She stated that she had made statement before the police on 03.01.2015 and denied that no such statement had been recorded by the police on 03.01.2015. She further denied the suggestion that she had made a false statement before the police on 06.02.2015. She stated that the houses of appellant and Mani Ram were adjoining to each other. She further stated that except for the statement on 06.02.2015 she has not made any other statement. She stated that deceased did not disclose any reason for weeping.
She denied the suggestion that Mani Ram had told her that Huma Devi met her at Larji and asked her that where she had gone. When she confronted with the statement where in it was so recorded.
30. PW-5 Jagdish Chand stated that he was Typist in District Court, Kullu and on 01.01.2015, while he was going to his ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 22 2024:HHC:8171 house at Sainj alongwith Sunny Sohal and Prakash, then at about 5:15 or 5:30 p.m. when they reached near Larji, he noticed .
deceased Huma Devi, who was her sister in law was on Larji Road at Sainj near bridge. He requested Sunny Sohal to stop the vehicle. He alighted down from the vehicle and tried to make inquiries from Huma Devi, however, she started walking briskly towards Aut side, but in the meantime HRTC bus came from Sainj. He stopped the bus and went up to next turn. The deceased Huma Devi noticed him alighting from the bus and started running towards sainj side. He chased her. One boy was also with her. Huma Devi stopped and he made inquiries from her. The appellant was accompanying the deceased. They informed that they were going to solemnize marriage. Thereafter he called Sunny Sohal and Prakash and they tried to make them to understand that they should not do like this. He made inquiries from the appellant, who some time stated that his name was Dhiraj and some time stated that his name was Thalia Ram. His sister in law disclosed that the name of the appellant was Thalia Ram and also gave me his Mobile No. 98822-77547.
They stayed there for about 30-45 minutes. The appellant and deceased asked him to stay away from their life. Thereafter, he disclosed everything to his father in law i.e. father of the deceased on his mobile phone. His father-in-law told him that he ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 23 2024:HHC:8171 was coming to Larji. Thereafter, they went to Bali Chowki. At about 6:00 p.m., they found deceased and appellant near the .
house of Dola Ram, Pradhan.
31. On being cross-examined, PW-5 stated that the deceased was walking at a distance of 100-150 meters and could have been easily apprehended but in order to avoid any scene on the spot, he refrained from running behind the deceased. He stated that after 01.01.2015 he had met the police twice or thrice and the police had met him at the interval of 2-3 days and he had disclosed these things to the police. He stated that on the next day, he tried to contact the appellant on his mobile number but the same was not in use and he had stated this fact to the police but it was not recorded so.
32. PW-6 Sunny Sohal stated that in January, 2015 he was working in Hindustan Construction Company and he was owner of the Santro Car bearing Registration No. HP-49A-0459.
On 01.01.2015, he was coming with his brother Prakash in the car from Kullu and Jagdish met them at Aut and they gave him lift in the vehicle. At about 5-5:15 p.m., when they reached at Larji, Jagdish asked him to stop the vehicle and disclosed that his sister in law was standing on Larji bridge. They remained in the vehicle while Jagdish alighted down and went towards Aut side.
He was talking with the girl. After some time, they received a ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 24 2024:HHC:8171 telephonic call from Jagdish and he requested them to come towards new bridge. They went there and found one girl and boy .
with Jagdish. He identified the appellant in the Court and stated that he was the same boy who had accompanied the sister-in-
law of Jagidsh. Jagdish had disclosed that appellant and deceased were going to solemnize marriage. Jagdish was requesting them to go to their homes but the appellant and deceased did not accede to the request of Jagdish. Thereafter they left for their respective houses. His statement was recorded on 02.02.20215 and he came to know that the appellant surrendered before the police.
33. On being cross-examined, PW-6 stated that he was married to the sister of Jagdish and Jagdish talked with the appellant and deceased for less than one hour on the spot. When Jagdish alighted from the vehicle, he was talking with the deceased. None else was present with them at the relevant time.
He received telephone of Jagdish after about 10-15 minutes. New bridge was at a distance of 200-250 meters from that point where he had stopped the vehicle.
34. It needs to be noticed that the theory of last seen has been introduced by the prosecution only after the arrest of the appellant. The conduct of the father of the victim is highly improbable and unnatural as he lodges the missing report after ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 25 2024:HHC:8171 5-6 days i.e. 06.01.2015 and maintain a complete silence during this period. It is here that the FIR Ext. PW-16/A becomes .
relevant. A perusal of the FIR goes to indicate that the father of the deceased was not aware of the fact that the deceased was seen in the company of the appellant at Larji on 01.01.2015 as is otherwise stated by PW-4, PW-5 and PW-6. Interestingly, all these witnesses i.e. PW-4, PW-5 and PW-6 claimed to have informed the father of the deceased on the same day i.e. 01.01.2015 as stated by PW-4 or on the next day i.e. 02.01.2015, as stated by PW-5. The version put-forth by these witnesses is completely falsified by the father of the deceased who in his cross-examination has feigned ignorance about all these facts.
No doubt, similar suggestions have been put by the defence to PWs but such suggestions are of no avail or at least cannot be taken advantage by the prosecution.
35. It is settled law that suggestions put in cross-
examination are no evidence at all against the accused and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the facts referred to in the suggestion. It is possible that in putting suggestion, 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. Therefore, the accused is entitled to the benefit of the ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 26 2024:HHC:8171 plea set up by the lawyer, but it cannot be said that the plea or defence, which is lawyer's put forward must mind the accused.
.
The reason is that in the criminal case, 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. 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.
There is yet another principle which is equally to be borne in mind that suggestions made in the cross-examination of a prosecution witness cannot be used to fill in gap in the evidence of the prosecution. The burden always lies on the prosecution to prove the guilt of the accused. Such suggestions in any case cannot stand at a higher pedestal than the statement of the accused under Section 313 Cr.P.C. (Ref.: Trikam Jivraj vs. State AIR 1969 Gujarat 69 DB; Budh Ram vs. State of H.P. 2010 Cr.LJ 1818; Raj Kumar vs. State of H.P. 2013 Lawsuit HP 591 and State of H.P. vs. Sunil Kumar & Ors.
ILR 2019 Vol.6, HP 165).
36. Adverting to the case, it would be noticed that all the witnesses i.e. PW-4, PW-5 and PW-6 are related to PW-16 and ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 27 2024:HHC:8171 had they actually seen the deceased with the appellant, they would have informed the father of the deceased and in case the .
father of the deceased had actually been informed, as stated by PW-4, PW-5 and PW-6, then we see no reason why the father of the deceased would not lodge the FIR promptly on 1st or latest by 2nd January, 2015 and waited till 06.01.2015. Further, had the statements of these witnesses been factually incorrect regarding they were having informed the father of the deceased about the incident, then their statements would have been promptly recorded by the Investigating Officer forthwith and he would not have waited for the statements to be recorded after the arrest of the appellant and the recovery of the dead body given the fact that the statements under Section 161 Cr.P.C. of all the three witnesses have been recorded only on 03.02.2015 after the recovery of the dead body. Thus, the theory propounded by the prosecution of deceased having last seen together in the company of the appellant is absolutely shaky and unbelievable.
37. What further creates doubt in the prosecution story is that the prosecution has placed on record the call details of the deceased and the appellant. As per the call details, both the appellant and deceased were in constant touch with each other .
The mobile number of the deceased was 98828-25521 and the mobile number of the appellant was 98822-41180. The call detail ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 28 2024:HHC:8171 reveals that both the deceased and the appellant were in constant touch with each other from 2:221 p.m. till 9:42 p.m. The .
tower location is itself suggestive of the fact that both the appellant and the deceased were not together at least from 2:20 p.m. up till 9:42 p.m. and thus the theory of last seen together as propounded by the prosecution falls flat on the ground.
38. If this was not enough, it needs to be noticed that PW-4 has categorically stated in her statement before the Court that she contacted the appellant in the presence of the father of the deceased on the mobile of the appellant whereas call details of the appellant on 02.01.2015, which clearly contradict and belie the statement of PW-4 which further falsifies the case of the prosecution.
(ii) Disclosure statement under Section 27 of the Indian Evidence Act alleged to have been made by the appellant.
39. As regards the disclosure statement made by the appellant, the prosecution examined PW-1 Chittar Singh, who stated that he was elected President of Gram Panchayat Devdhar and on 03.02.2015, he alongwith Mehar Singh and H.C. Narpat Ram remained associated in the investigation of the case. On 03.02.2015, the appellant, who was present in the court made disclosure statement before the police in police custody that on 01.01.2015 he had concealed dead body of a girl alongwith her ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 29 2024:HHC:8171 luggage in a natural cave in the forest Bansgarh near village Dhar and he could get the dead body recovered. The memo Ext.
.
PW-1/A was prepared, which was signed by him and HC Narpat Ram. Appellant also put his signatures on the memo in his presence and thereafter the appellant led the police party to Bansgarh and identified the place between two rocks which was a tunnel. He stated that dead body was concealed on 01.01.2015 in that tunnel. Two local boys alongwith one male police official and one lady constable went inside the tunnel alongwith torch and camera. After sometime the dead body of deceased was taken out from the cave with the help of string (rope). The dead body was mutilated and was having shirt, salwar, sweater and jacket. The dead body was having ear rings and nose pin. One purse, photographs, Aadhar Card and mobile phone charger was also found there alongwith clothes. Some money was also recovered. Mani Ram and Bhag Singh, father and brother of the deceased identified the dead body of deceased Huma Devi. The police also conducted photography. The case property was kept in a parcel and parcels were sealed with seal 'H' at six places.
The seal after use was handed over to Mehar Singh. Memo Ext.
PW-1/B was prepared. The police official took into possession controlled sample of soil from the spot, which was sealed in a match box and sample seal was drawn in the memo Ext. PW1/C ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 30 2024:HHC:8171 was prepared. The dead body after postmortem was handed over to the father of the deceased. The witness identified all the .
aforesaid parcels alongwith the content as mentioned above that had been taken into possession by the police.
40. On being cross-examined, PW-1 stated that Mani Ram belongs to scheduled caste whereas the appellant belongs to the upper caste. He could not remember whether it was in the morning or evening when the statement was made by the appellant before the police officials. He could not tell the designation and names of all the police officials and stated that HC Narpat Ram was also present. He stated that many police officials had gone to the spot alongwith the forensic team. His statement was recorded by the police. However, he stated that all the police officials were making inquiries from the appellant and 5-10 police officials had gone to the spot and were making inquiries. These inquiries were made for about one and half hours in the police post. He admitted that Sainj was at a distance of approximately 40 kms. from his village. He further deposed that police officials and two local boys entered in the tunnel from the upper road and stated that the entrance of the tunnel was 26-27 feet in depth and perpendicular in shape. He denied the suggestion that no one could enter the case, but could not tell the exact spot where the dead body was lying. He admitted that ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 31 2024:HHC:8171 dead body was not visible from the entrance. He stated that Chhape Ram and Jai Ram entered the cave alongwith the police.
.
He admitted that the names of these boys have not been mentioned in the statement under Section 161 Cr.P.C., but volunteered to state that Chhape Ram was there and denied the suggestion that he did not enter the tunnel. The distance between the house of Mani Ram and cave was approximately 1 km. The police officials alongwith local boys came out from the other exit. He denied the suggestion that there was no exit in the cave. He did not remember as to who had brought the rope and stated that some local boys must have brought the same. He denied the suggestion that the appellant had been tortured by the police to make disclosure statement. He admitted that entire village had been agitating about the missing of the deceased and further admitted that they had also submitted a memorandum to the district administration. He feigned ignorance that the family members of the deceased were annoyed due to bad character of the deceased and he further feigned ignorance that the deceased had been eliminated by her own family members.
41. PW-17 Mehar Singh stated that on 03.02.2015, he alongwith Chittar Singh and Narpat Ram remained associated in this case and in his presence and in presence of the witnesses, ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 32 2024:HHC:8171 the appellant who was present in the Court disclosed to the police that he had buried one lady on 01.01.2015 in a cave at .
Bansgarh and he could identified the place. Memo Ext. PW-1/A was prepared. Thereafter, he alongwith other witnesses and appellant went to Bansgarh with police. The appellant led the police party and identified the cave at Bansgarh where he had buried the dead body. Thereafter, two local persons and one lady constable and another police official entered in the cave and recovered the dead body of the deceased Huma Devi. The dead body was decomposed and taken out with the help of the rope.
One purse, fair and lovely cream and Aadhar Card etc. were found near the dead body. The dead body was having cut marks on the neck and injury mark on the head. The dead body was identified by the father and brother of the deceased Huma Devi.
The police also conducted photography on the spot. Articles were kept in a sealed parcel, which was sealed with some seal. The seal after use was handed over to him. The police also collected control sample of soil from the spot. The police took into possession dead body and articles recovered from the spot vide memo Ext. PW-1/B.
42. On being cross-examined, PW-17 stated that he is resident of Relia which was at a distance of 60 kms from village Rahi. He was nephew of Mani Ram father of the deceased. The ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 33 2024:HHC:8171 relatives had assembled in the house of Mani Ram since his brother i.e. maternal uncle had expired on 31.01.2015. However, .
he did not remember the time when the appellant made disclosure statement and stated that statement was made at about 10:00 a.m. at police post Bali Chowki in a room. He denied the suggestion that the appellant had disclosed that Huma Devi had gone to commit suicide at Bansgarh. He denied that the appellant had disclosed that on 02.01.2015, he noticed dead body of deceased in the early morning near cave at Bansgarh.
He further denied that it was on account of fear that the appellant had gone underground. He admitted that no family member of the appellant was present at the spot at the relevant time and no other villagers belonging to Rajput caste resident of village Rahi were present at the relevant time. He denied the suggestion that they were aware of the dead body of the deceased buried in the cave. He further denied the suggestion that the persons who went inside the cave had not disclosed that dead body was buried under soil and stones. He further denied that cave was having another entrance from which a person could have easily entered but police chose a narrow passage from upper side. He volunteered to state that the cave was having only one entrance. He feigned ignorance regarding the passage being narrow and was perpendicular from upper side.
::: Downloaded on - 10/09/2024 20:30:29 :::CIS 342024:HHC:8171 He denied that seal had not been handed over to him . He further admitted that police had instructed him to produce that .
seal in the court but he had misplaced the same in his marriage but had not lodged report with the police.
43. PW-18 HC Narpat Ram stated that he was posted as an Investigating Officer at police post Bali Chowki from the year, 2014. On 31.01.2015, he arrested the appellant after his interrogation in police station, Aut. The appellant had surrendered before the police on that day. Thereafter the appellant while in police custody on 03.02.2015 had made disclosure statement stated that he had concealed the dead body of a lady in a cave at Bansgarh alongwith articles. The disclosure statement was Ext. PW-1/A.
44. On being cross-examined, he denied the suggestion that he had simply signed the statement written by Inspector Lokender Singh Negi and nothing was disclosed in his presence by the appellant. He denied the suggestion that appellant disclosed to the police in his presence that on receipt of telephone on 01.01.2015, he went to the spot at Bansgarh on 02.01.2015 and found the dead body of Huma Devi. He denied that the appellant had disclosed that due to fear he did not report the matter to the police and he was deposing falsely.
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45. PW-26 Inspector Lokender Singh Negi stated that he was posted as Officer In-charge of the Police Station-cum-SHO, .
Aut and stated that on 03.02.2015, the case file of the present case was taken by him from ASI Subhash Sharma for investigation. On that date, the appellant was interrogated by him as he was already in police custody and he made a disclosure statement Ext.PW-1/A that he had concealed a dead body of a lady in the natural cave at place Bansgarh near village Dhar. This disclosure statement was made in the presence of Mehar Singh, Chittar Singh and HC Narpat Ram, who signed the same as witnesses. The appellant also signed the disclosure statement. In pursuance to the disclosure statement, the appellant led the police party and witnesses to the said place and gave the demarcation of the spot of natural cave at village Dhar place at Bansgarh. By that time, the team of expert from RFSL, Mandi was also called on the spot. Since the cave was narrow and only a slim person could have entered in the cave, therefore, LC Leela Devi alongwith C. Pitamber and one local resident were sent inside the cave with the help of a ladder and rope alongwith search light and camera. After some time, they identified the spot where the dead body was lying. The dead body was taken out with the help of rope and bed sheet. Outside the cave the dead body of the deceased was identified by her ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 36 2024:HHC:8171 father and brother. The belonging of the deceased such as Aadhar Card, Mobile phone charger, one Fair and Lovely cream .
etc. were taken into possession vide memo Ext.PW-1/B. Mehar Singh and Chittar Singh signed this memo as witnesses and Bhag Singh and Mani Ram had also signed the memo. He further stated that the team of RFSL had also inspected the spot and dead body at their own level and prepared the notes of their proceedings.
46. On being cross-examined, PW-26 stated that he did not know the exact date when the appellant surrendered in the Police Station, Aut. Since, he was away in connection with the investigation of Raghunath Temple theft case at Kullu. He came back to the Police Station on 02.02.2015 and was present in the police station on 03.02.2015 when he interrogated the appellant in the police station in the morning. At the time of interrogation of the appellant, no outsider was present but the appellant had not disclosed clearly regarding the dead body of the deceased at that time. On 03.02.2015, the appellant was brought to the court for further police remand by ASI Subhash. Thereafter, the appellant was brought to the police post Bali Chowki at about 3:00-4:00 p.m. by ASI Subhash Chand. In the meantime, he (PW-
26) had also reached Bali Chowki alongwith his team. There were 6-7 persons in the team whereas Quick Reaction Team (QRT) Bali ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 37 2024:HHC:8171 Chowki remanded by him alongwith RFSL team. QRT reached P.P. Bali Chowki almost at the same time when ASI Subhash .
reached there alongwith the appellant. RFSL team met them on the way while going to the spot. The appellant was interrogated for about an hour at police post Bali Chowki and during this period, he made disclosure statement about the dead body. He left police post Bali Chowki at about 4:30 p.m. He denied the suggestion that police team and QRT were also pressurizing and harassing the appellant. He denied the suggestion that the appellant had not made any type of disclosure statement. He further denied that he had written the disclosure statement Ext.
PW-1/A on his own. He admitted that he had not called any person from the village except the witnesses of Ext.PW-1/A, parents of the deceased and Pradhan. The witnesses were called through the staff of police post Bali Chowki. He denied that the appellant made disclosure statement that he had returned home on 01.01.2015 in the evening. He admitted that the appellant had told that he had relation with the deceased but he had not disclosed the period thereof. He stated that forensic team met them about 3-4 kms behind the spot. He further deposed that there were two entry points in the cave in question. He denied the suggestion that there was an exit point from the down side of the cave. He volunteered to state that one had to come out of ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 38 2024:HHC:8171 the cave only through the two exit points. He denied that the police team had come out of the cave through the exit point .
which was down side. He denied that the exit point shown in the spot map Ext. PW-26/A was plain surface from the place where the dead body was lying and up to the exit point. He denied the suggestion that the appellant had disclosed that on 01.01.2015 he stayed at home in the night but the deceased instead of going to her house left to Bansgarh. He denied that at about 9:45 p.m. the deceased called the appellant telephonically to Bansgarh. He denied that the deceased had told the appellant that in case he did not come to her, then she would commit suicide by consuming poison and this fact was disclosed to them by the appellant during investigation. He denied that the appellant had told them that in the morning at 4:00 a.m., he had gone to the cave from the exit point as shown in Ext. PW-26/A and found that the deceased was found lying dead there. He also denied that appellant had also disclosed before them that thereafter due to fear he (appellant) had been absconding. Volunteered to state that the appellant had simply told that he had fled away after killing the deceased. He denied the suggestion that no such fact of killing was told by the appellant. He feigned ignorance that the appellant remained out and after about one month he on the persuasion of near and dear surrendered before the police. He ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 39 2024:HHC:8171 denied that the deceased was making calls to the appellant from 2:00 p.m. to 5:00 p.m. Volunteered to state that both were .
calling to each other on that day. He admitted that appellant reached Larji by bus at about 5:00 p.m. and further admitted that from 2:00 p.m. to 5:00 p.m. approximately Rupa Devi (PW-
4) remained with the deceased. He further admitted that Rupa Devi was going towards village Shalwar in Sainj area. He admitted that Rupa Devi was asked to stay by the deceased to remain with her. He admitted that deceased had asked Rupa Devi to hide herself as soon as the appellant reached there and she did accordingly. He admitted that the appellant had told that he was engaged and was going to marry with some other girl. He feigned ignorance that the deceased had been pressurizing the appellant to get marry to her and she had prepared to marry the appellant by arranging the entire articles of marriage like new clothes, bindi and Aadhar Card etc. He stated that Rupa Devi had met him after 3-4 days after the recovery of the body. He admitted that Jagdish and Sunny Sohal had met him 2-3 days after recovery of dead body. He denied the suggestion that on 01.01.2015, the appellant was present in his house during the night alongwith his family members.
47. As per the prosecution case, the statement under Section 27 of the Indian Evidence Act has been recorded by the ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 40 2024:HHC:8171 Investigating Officer (PW-26) on 03.02.2015 in the presence of Chittar Singh (PW-1) and Mehar Singh (PW-17). The Investigating .
Officer has clearly deposed in the Court that he was not aware as to where the dead body of the deceased was lying. If that be so, then how he summoned the RFSL team as also the QRT before recording the statement under Section 27 of the Evidence Act clearly casts a serious doubt on the prosecution story. This assumes greater significance, when it has come on record that the team of RFSL team from Mandi reached the spot at 11:00 a.m.-12:00 p.m., as deposed by PW-15. In such circumstances, presence of PW-15 at the given time and place is suggestive of the fact that no statement under Section 27 of the Evidence Act (Ext. PW-1/A) was recorded at the instance of the appellant, rather everything appears to be stage managed. Apart from above, it has come on record that there were many police officials and local persons already present on the spot before the recovery of the dead body which only suggest that everyone was aware of the dead body that was lying in the cave.
48. PW-1, before whom the disclosure statement alleged to have been made, does not remember when the statement was recorded whether it was morning or in the evening. Whereas PW-2 has clearly stated that even though he does not remember the time when the statement was made but it was post lunch ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 41 2024:HHC:8171 hours. PW-3, on the other hand states that she alongwith other police team reached the spot at 3:00-3:30 p.m., while PW-15, as .
observed above, states that they reached the spot at 11:00- 12:00 p.m. PW-17 claimed that the statement of the appellant under Section 27 of the Evidence Act was recorded at 10:00 a.m. whereas the Investigating Officer (PW-26) in his cross-
examination stated that disclosure statement was made before 4:30 p.m.
49. All these versions completely demolish the factum of recording the statement under Section 27 of the Evidence Act and rather suggest that everything was stage managed and no such statement was made by the appellant. If the statement was made by the appellant at 4:00 p.m., then obviously, there was no occasion for the RFSL and QRT to be present at the spot at 11:00 a.m.
50. Apart from all these it needs to be noticed that the QRT as per the Investigating Officer (PW-26) had reached police post Bali Chowki almost at the same time when ASI Subhash reached there alongwith the appellant. As per the earlier part of the statement, it was on 03.02.2015, that appellant was brought to the court for further police remand by ASI Subhash Chand and thereafter he was brought to the police post Bali Chowki at about 3:00-4:00 p.m. by ASI Subhash Chand. It was in the meantime, ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 42 2024:HHC:8171 that the Investigating Officer also reached at police post Bali Chowki alongwith his team which comprised of 6-7 members. As .
per the Investigating Officer he had already requisitioned QRT and demanded a RFSL team even before the statement of the appellant had been recorded under Section 27 of the Evidence Act. This is so stated by the Investigating Officer when he states that "On 03.02.2015, I was present in the police station. I interrogated the accused in the police station on 03.02.2015 in the morning. At the time of interrogation of the accused no outsider was present. He had not disclosed clearly regarding dead body of the deceased at that time. On 03.02.2015 the accused was brought to the court for further police remand by ASI Subhash. Thereafter he was brought to police post Balichowki at about 3-4 p.m. by ASI Subhash. In the meantime, I had also reached P.P. Balichowki alongwith my team. We were 6- 7 persons in the team. Whereas QRT (Quick Reaction Team) was also demanded by me alongwith RFSL Team. QRT reached P.P. Balichowki almost at the same time when ASI Subhash reached there alongwith the accused. RFSL team met us in way while going to the spot. The accused was interrogated for about an hour at P.P. Balichowki and during this period he made disclosure about the dead body. We might have left P.P. Balichowki at about 4:30 p.m."
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(iii) Recovery of dead body
51. The prosecution examined PW-2 Chhape Ram, who .
stated that about 6-7 months back, he remained associated in the investigation of this case. The appellant was known to him and was present at Bansgarh alongwith the police. The police disclosed that the dead body had been disposed of on the spot.
The police requested that persons with thin physique, who could enter the cave should come forward. He alongwith Jai Chand and police officials Pitamber and Leela Devi entered the cave. The police officials were having torch and camera. They encountered foul smell in the cave and found the dead body of the Huma Devi buried under soil and stones. The dead body was mutilated. The police took photographs of the dead body. One purse was also lying beneath the dead body. The brother and father of deceased Huma Devi identified the dead body. The length and breadth of cave was also measured by the police with their help.
52. On being cross-examined, PW-2 stated that he did not remember the time, but remembered that it was post lunch hours, that he had gone to the spot, where many persons were present. He admitted that his relatives in village Rahi were distantly related to Mani Ram. He denied the suggestion that dead body was beyond recognition. He stated that mob was not allowed near the spot and they remained present at some ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 44 2024:HHC:8171 distance. He alongwith three other persons, appellant and police went near the entrance of the cave. He stated that dead body .
was taken out from the entrance of the cave and did not know whether the rope was taken into possession by the police or not.
53. PW-3 L.C. Leela Devi, who was stated to have went in the cave, stated that on 03.02.2015 she alongwith police officials and some local persons had gone to Bansgarh in village Dhar.
The appellant who was in police custody led the police party and witnesses to a narrow cave in the forest and stated that he had thrown the dead body in the cave. He alongwith C. Pitamber, Chhape Ram and another person entered in the cave. They were having torch and camera with them. They found the dead body buried with soil and stones in the cave. The dead body was not in a good condition and taken out with the help of rope. One purse is also recovered from the spot which was lying beneath the dead body. He also took controlled soil from the spot. The dead body was identified by the father and brother of the deceased.
The cave was 28 feet in length, 26 feet in depth and two and half feet in width.
54. On being cross-examined, PW-3 stated that they reached the spot at 3:00-3:30 p.m. where numerous persons were present at the spot. The persons remained present at some distance from the spot and the mob was not allowed near the ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 45 2024:HHC:8171 cave. The appellant alongwith police officials and some local persons were allowed near the entrance of the cave. Chhape .
Ram witness was called by the police. Another person was also called by the police but he did not remember the name of the person. His statement was recorded by the police wherein he stated that Chappe Ram and another person were called by the police. However, this was not so recorded in the statement Mark-
A. He denied the suggestion that the cave was exactly perpendicular. He denied the suggestion that no one could enter the cave. He admitted that the entire cave was not visible from the entrance and they were having torch and had tried to locate the dead body from the entrance. All of them entered the cave with the help of stair.
55. PW-11 Jai Chand was the other person, who was alleged to had gone into the cave and recovered the dead body and stated that on 28.03.2015 he alongwith Bhag Chand, Bhume Ram and other villagers went to the spot Bansgarh where the dead body was recovered on 03.02.2015. One Pandit was also called to perform religious function for the peace of deceased soul. He thereafter deposed regarding the recovery of hankerchief, two bottles of Officer Choice, one plastic bottle, one cigarette packet etc., but did not state a single word regarding ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 46 2024:HHC:8171 his having entered in the cave alongwith PW-2 Chappe Ram and PW-3 LC Leela Devi.
.
56. PW-15 Neeti Prakash, Assistant Director, Regional Forensic Laboratory, Mandi stated that on 03.02.2015 on receipt of information from the police he alongwith Sanjeev Singh and Rakesh Rana visited the spot at Bansgarh near village Dhar. The spot was identified by the appellant in presence of the Investigating Officer. The main spot was situated on the top of steep gradient rocky hill. There was a natural cave having two narrow entrances from the top. There was a foul smell present in and around the cave. The forensic team could not enter the cave since the entrances were very narrow. The trained police official entered the cave and female dead body was found inside therein. The dead body was taken out with the help of wooden stair, rope and bed sheet. A blue coloured lady bag was also found on the spot and on being checking personal articles were found in it. One black coloured jacket was also found on the spot.
On examination of the dead body, it was found to be of a female aged about 25-30 years. The body was wet and in the advance stage of decomposition. The skin of hands and feet were partially peeled off. The scalp hairs were absent from frontal and parietal region of skull. The bones of throat region were exposed off due ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 47 2024:HHC:8171 to decomposition of tissues of neck. Right ear was absent and left ear was wearing ear rings.
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57. On being cross-examination, PW-15 stated that Deputy Director of RFSL was contacted by the police thereafter they were directed by the Deputy Director to visit the spot. They reached the spot at about 11:00-12:00 noon. Many police officials were present at the spot. The police officials met them at a place 3-4 kms away from the spot. The appellant was also with the police. The appellant was handcuffed. He denied the suggestion that appellant was following the police. Volunteered to state that the appellant was leading the police and identifying the spot. They covered 200-300 meters distance by foot. He stated that he had mentioned in the spot about the length between two entrances of the cave which was about 28 feet.
Both entrances were very difficult to enter. The police officials had entered from upper entrance. The other entrance was covered with some stone, which may be due to rain fall. Nothing was visible from the entrance. He was not in a position to state as to whether any one could enter the cave with the help of rope and volunteered to state that it depends on person to person. He further stated that one wooden stair was arranged by the Investigating Officer. He denied the suggestion that he alongwith his team never visited the spot and the report had been ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 48 2024:HHC:8171 prepared by him while sitting in the office in connivance with the police officials.
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58. PW-16 Mani Ram, father of the victim stated that on 01.01.2015 he had gone to Bali Chowki and when he came back at 4:00 p.m., he did not find his daughter Huma Devi in house.
His wife disclosed that she had gone to Sainj, Barmari. He made inquiries from his daughter Hira Devi but she disclosed that she (Huma Devi) was not with her. Thereafter, he went in search of his daughter to so many places. At 5:30 p.m., he received call from Jagdish, who informed that his deceased daughter was at Larji with some person of dark complexion. He also informed that two other persons Prakash and Sunny Sohal were also with them.
He also informed that the boy accompanying his daughter disclosed his name Dheeraj, resident of Thachi. He reported the matter to the police post Bali Chowki on 03.01.2015. The police refused to lodge the rapat. The FIR was thereafter registered on 06.01.2015 in police station, Aut vide Ext. PW-16/A. On 02.02.2015, he went to Larji alongwith Prakash, Sunny Sohal, Jagdish and brother of Thalia Ram, where appellant and deceased were seen on 01.01.2015 by Sunny Sohal and Prakash.
Appellant Thalia Ram cajoled his daughter to solemnize marriage. On 03.02.2015, he alongwith his son, Pradhan of village and various other persons went with police to Bansgarh.
::: Downloaded on - 10/09/2024 20:30:29 :::CIS 492024:HHC:8171 Appellant led them to a cave at Bansgarh. The police requested the local persons to enter the cave. Thereafter with the help of .
stairs, two persons alongwith a lady constable and another police official went inside the cave. He informed after some time that his daughter was buried under soil and stones inside the cave.
The dead body of his daughter was taken out from the cave with the help of rope. Certain personal articles like Aadhar Card, mobile charger, one purse were recovered. He identified the dead body of his daughter. The police conducted proceedings on the spot. The dead body was taken into possession by the police alongwith other articles.
59. On being cross-examined, he feigned ignorance regarding love affairs between the appellant and the deceased.
He denied the suggestion that on 01.01.2015 his daughter left the house on her own and gone towards Larji side where she met the appellant at about 5:00 p.m. He also did not know that Rup Devi had met them there between 2:00-5:00 p.m. He did not know that Huma Devi directed Rupa to conceal herself from the appellant and thereafter Rupa went to Sainj and came on 02.01.2015. He did not know that at 5:00 p.m. Sunny Sohal, Jagdish and Prakash came from kullu at 5:00 p.m. and Jagdish noticed deceased with the appellant. He admitted that Jagdish was his son-in-law. He did not know that Jagdish made inquiries ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 50 2024:HHC:8171 from appellant and the deceased Huma Devi. He did not know that deceased told Jagdish that she was solemnizing marriage .
with the appellant and he had no business to interfere. He did not know that Jagdish had told appellant and deceased that in case marriage was soleminised, he would summon him. He admitted that he was called by Jagdish to police post Bali Chowki and they assembled there and Jagdish narrated everything to him. They reached police post Bali Chowki at about 7:00 p.m. and they remained there for 10-12 minutes. Thereafter they went in search of deceased and appellant towards Thachi side.
They did not go to the house of any person since it was night time. He stated that Rupa had disclosed that the deceased was having love affairs with the appellant and the deceased was to marry the appellant. He admitted that the marriage of the appellant had been fixed in the month of January. He denied the suggestion that her daughter had died by consuming poison.
60. The case of the prosecution is that deceased was buried under the stones and soil, which theory obviously was propounded to give it the colour of murder but such story is falsified by Dr. Manoj Sharma (PW-22), who in his cross-
examination is clearly stated that "No soil was found in the body at the time of autopsy. It is correct that in my opinion the body may not be buried under the soil and stones". Furthermore, ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 51 2024:HHC:8171 there is contradictions amongst the various witnesses examined by the prosecution regarding the cave having one or two .
entrances. As per the prosecution case, there was only one entrance to the cave, whereas PW-15 and PW-26 have clearly not only deposed of there being two entrances in the cave but they have also given the dimension of one of the entrances. The prosecution would claim that the death of the deceased was homicidal but the same has not been proved beyond reasonable doubt. Dr. Manoj Sharma (PW-22) has clearly stated that possibility of suicidal could not be ruled out.
61. At this stage, Mr. Navlesh Verma, learned Additional Advocate General would argue that appellant while being examined under Section 313 Cr.P.C. has categorically submitted that he was last seen together with the deceased and on the next morning she was found to be dead and thereafter the appellant had remained underground due to fear.
62. No doubt, the appellant in reply to question No. 49 has admitted the above by stating as follows:-
"Ans. I am innocent. Deceased called me on telephonically to come to Larji bus terminal and I went there by bus. She started stressing me to marry with her but I refused. Later on I and Huma came back to our houses. But she instead of going to her home went to Bansgarh cave in the night from where she again called me to come but I told her to come ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 52 2024:HHC:8171 there in the morning time. I went there in morning. She was found dead. I was afraid and remained .
underground due to fear."
63. However, it is more than settled that a statement of an accused under Section 313 Cr.P.C. is recorded without administering oath, it cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The conviction of an accused cannot be based on the statement made under Section 313 Cr.P.C. Such statement cannot be regarded as substantive piece of evidence.
64. Apart from the above, it is only after the prosecution discharges its duties of proving the case beyond reasonable doubt that the false explanation or non-explanation of the accused can be taken into consideration. Even otherwise, the statement of an accused under Section 313 Cr.P.C. cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution. Here the prosecution has miserably failed to discharge its onus and, therefore, cannot be permitted to take advantage of the statement of the appellant recorded under Section 313 Cr.P.C.
65. In the given facts and circumstances, we are clearly of the view that the prosecution has not been able to prove its case beyond reasonable doubt and the appellant-Thalia Ram ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 53 2024:HHC:8171 alias Nagu in such circumstances is entitled to the benefit of doubt.
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66. In view of the aforesaid discussion and for the reasons stated above, we find merit in Cr. A. No. 454 of 2019 and the same is accordingly allowed. The judgment of conviction and sentence as passed by the learned Special Judge, Mandi District Mandi, H.P. in Sessions Trial No. 03 of 2017, titled as State of Himachal Pradesh vs. Thalia Ram alias Nagu is accordingly set aside. Appellant Thalia Ram alias Nagu is ordered to be set free forthwith, if not required in any other case.
67. The Registry is directed to prepare release warrants of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
68. Since the appeal (Cr. A. No. 454 of 2019) filed by the appellant-Thalia Ram alias Nagu has been allowed thereby setting aside the judgment passed by the learned Special Judge, Mandi District Mandi, H.P. in Sessions Trial No. 03 of 2017, titled ::: Downloaded on - 10/09/2024 20:30:29 :::CIS 54 2024:HHC:8171 as State of Himachal Pradesh vs. Thalia Ram alias Nagu, consequently the appeal filed by the complainant-Mani Ram i.e. .
Cr.A. No. 264 of 2020 is ordered to be dismissed.
69. Both these appeals are disposed of accordingly.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
9 th
September, 2024 Judge
(Sanjeev)
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