Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjiv Kumar Alias Sanju on 27 August, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 703 of 2002 along with Cr. Appeal No. 228 of 2007 Judgment reserved on: 10th July, 2019.
.
Date of Decision: August 27 , 2019
1. Cr. Appeal No. 703 of 2002
State of Himachal Pradesh ...Appellant
Versus
Sanjiv Kumar alias Sanju ....Respondent.
2. Cr. Appeal No. 228 of 2007
State of Himachal Pradesh ...Appellant
Versus
Ramesh Chand & others ....Respondents.
Coram:
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice. The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Ashwani Sharma, Additional Advocate General, for the appellant/State in both the appeals.
For the respondent : Mr. Sunil Dutt Vasudeva and Mr. Sanjay Dutt Vasudeva, Advocates, for the respondent in Cr. Appeal No. 703 of 2002.
Mr. Imran Khan, Advocate, for the original respondent No. 2 in Cr. Appeal No. 228 of 2007.
Ms. Tim Saran, Advocate, for the original respondent No. 3 in Cr. Appeal No. 228 of 2007.
Appeal against respondents Tilak Raj and Rattan Lal in Cr. Appeal No. 228 of 2007 already stands abated.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 2Per: Anoop Chitkara, Judge.
Aggrieved by the acquittal of all the accused of all charges, including that of murder, the State has come up before this Court under Section 378(4) of CrPC. These appeals trace their origin to a complaint .
made to the Police Station Barmana, District Bilaspur, HP, which culminated in the registration of FIR No. 88 of 1993, under Sections 302, 201, 382, 467, 468, 420, 210, and 411 read with Sections 120B and 34 of the Indian Penal Code. Two separate trials commenced because the police could not apprehend all the accused. Vide a common judgment dated May 15, 2002; the trial Court held the accused not guilty. The State has come up before this Court with these two separate appeals and both these appeals are being taken up together because they originate from the same FIR and collective judgment:
(i) Criminal Appeal No. 703 of 2002, titled as State of Himachal Pradesh vs. Sanjiv Kumar @ Sanju, arising out of Sessions Trial No. 3 of 1995 and
(ii) Criminal Appeal No. 228 of 2007, State of Himachal Pradesh vs. Tilak Raj @ Jasbir @ Jassi (since deceased) & others, arising out of Sessions Trial No. 44 of 1996.
2. The gist of the evidence, apposite to and to arrive at a fair conclusion and to justify the reasoning, is as follows:
3. FACTS RELATING TO DISCOVERY OF DEAD BODY:
a) On 20.9.1993 at around 6.00 - 7.00 p.m., a resident of Barmana, named Tulsi Ram (PW-1 in ST 44/96)), had gone to cut grass from his grasslands and on the way, he noticed a dead body, lying near the culvert, down the road. He apprised Babu Ram (PW-2 in ST No. 44/96), who was the Pradhan of the Gram Panchayat Kotla, about noticing ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 3 of such dead body. On this Babu Ram also visited the spot and saw the dead body, lying suspiciously. Shri Babu Ram, the Pradhan, deputed some persons at the place to guard the dead body and along with ward members of his Panchayat, proceeded to the Police Post Namhol. He .
informed the police of a human corpse lying nearby a conduit, 10 to 14 feet below the road, near village Panjok. Police recorded this information vide entry No. 15, in the daily diary register (Ext. PW-2/A in ST No. 44/96).
b) Without any loss of time, ASI Ranjha Ram (PW-22 in ST No. 44/96), along with police officials, visited the spot. After verifying the corpse, prima facie the police proceeded to investigate a case of culpable homicide amounting to murder. Thereupon, the investigating officer recorded the statement of Tulsi Ram (PW-2 in ST No. 3/95) under Section 154 CrPC (Ext. PC in ST No. 3/95). Based on this statement, police registered the FIR referred to hereinabove. After registration of the FIR, police prepared the inquest reports (Ext.PA & PB in ST No. 3/95) (Ext.
PW1/A & 1/B in ST No. 44/96).
c) The police sent the dead body for post mortem examination.
The Prosecutor tendered in evidence the Post mortem report as Ext. PQ (in ST No. 3/1995)/Ext. PW14-A (in ST No. 44/1996) and final opinion as Ext. PR (in ST No. 3/95)/Ext. PW14-B(in ST No. 44/96). On 23.9.1993, Dr. N. K. Sankhyan, (PW-14 in ST No. 44/96), Medical Officer, District Hospital Bilaspur, HP, conducted the post mortem examination on this unidentified dead body. The Doctor observed that the dead body was in a highly decomposed state with millions of maggots present over the same. The length of the dead body was 5 feet & 7 inches, except for the area of contact on the back of the chest, the skin of the body was peeled off, and ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 4 the face bloated and was dark brownish-black color. Only few hair were present on the scalp. After analysis of the dead body, the Doctor came to the conclusion that the corpse was of a human male, aged between 22 to 30 years. He noticed injuries on the abdomen, and due to this injury, the .
intestines had protruded from the wound. The Doctor also noticed injuries on the scalp, left the side of the neck, right shoulder and right arm, abdomen, right thigh, right leg, left knee, inner left leg and ante mortem fracture of 4th cervical vertebra. During the post mortem examination, the Doctor preserved the viscera of the deceased and sent for pathological examination, but the laboratory did not notice any traces of any poison or alcohol. The Doctor concluded that the cause of death as ante mortem injuries and that he died around six days before the post mortem examination, which means around Sep 17, 1993.
d) During the investigation, the police also preserved a locket, and the clothes on the dead body, as evidence for the identification.
e) ASI Ranjha Ram (PW-22 in ST No. 44/96) conducted the initial investigation in the case. He stated that the spot from where he had recovered the dead body was near the Panjok Naala below the Shimla -
Bilaspur Road. From the trouser of the deceased, he also recovered a vial which mentioned: "Delay spray made in Germany - Spray Dooz."
f) The investigator got this vial tested from the State Forensic Science Laboratory, Shimla. The Laboratory found liquid in the vial as 2- Dyethyle Aminoacito-2.6 - Xyalaelied Lidocaine and declared that it is local anesthesia drug. The prosecution tendered this report in evidence as Ext. PW-28/A (in ST No. 3/95).
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 5g) After the registration of the FIR, the SHO Kashmir Singh (PW-
39 in ST No. 44/96) visited the spot and conducted further investigation.
He also took into possession the curtain of Maruti van, from the spot from where the dead body laid, per seizure memo Ext. PW-37/F in ST No. .
44/96).
4. FACTS RELATING TO MISSING OF RAMAN BHARTI:
a) One taxi driver of the name Raman Bharti used to ply Maruti Van of blue color, having registration No. HP-02-3100, from Nurpur. He went missing from noon of Sep 17, 1993. Sh. Tirath Ram, who appeared as PW-11 (in ST No. 44/96), was the father of Raman Bharti. He testified that at the time when his son had gone missing, he was wearing one vest on which a word in English embossed and a black pant, grey shoes, and one locket. The family launched a frantic search on their level. On Sep 20, 1993, Ravinder Dhiman, brother-in-law of Raman Bharti, started looking for him and enquired from the other taxi drivers of Nurpur. One such driver was Kukka @ Amin Chand (PW-4 in ST No. 3/1995) resident of Nurpur, Distt. Kangra. He apprised Ravinder Dhiman that on Sep 17, 1993, in his presence three boys who were around 23 years, had come there and they asked one Fauji driver of a Maruti van to take them to Shimla to attend a marriage which was at a distance of 30 kilometers from Shimla. On this, said Fauji refused to go with them. After that, those boys went to Raman Bharti and hired his taxi for a fare of Rs. 2200/-. Raman Bharti asked him to go with him, but those boys objected to it under the pretext that two girls also have to accompany them from Dharamshala, therefore, there was no extra seat. After that, Raman Bharti left with them not to be seen again. ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 6
b) On this Ravinder and Amin Chand proceeded towards Shimla in search of Raman Bharti. During their return journey, they enquired about missing person at Barmana, where they came to know that the police had recovered a dead body on Sep 23, 1993. They identified it to be of Raman .
Bharti by looking at the locket and clothes retrieved from the said dead body.
5. INVESTIGATION & ARREST OF ACCUSED:
a) On 27.9.1993, ASI Manjhel Singh (PW-38 in ST No. 44/96) took over the investigation. Kukka alias Amin Chand (PW-4 in ST No. 3/95), told the Investigating Officer that one person (Accused Tilak Raj) sat on the front seat of the Van and two persons (Accused Sanjiv A-1 in ST 3 of 1995, and Sanjay A-2 in ST 3/1995), were also sitting on the back seat of the Van. The investigating officer collected the evidence regarding the stay of accused Tilak Raj in Indora in Distt. Kangra. Tilak Raj @ Jasbir Singh @ Jassi @ Shiva @ Sikander had purchased a scooter from Ganesh (PW-5 in ST No. 3/95 and PW-10 in ST No. 44/96). Ganesh was dealing as a vehicle dealer, and he had a scooter owned by Ashok Kumar for sale. This was a lead to identify accused Tilak Raj. ASI Manjhel Singh was able to pinpoint to accused Sanjiv Kumar as the suspect and kept on searching him for one year, and on 24.8.1994 he arrested him. On interrogation of accused Sanjiv Kumar, he revealed the names of other accused as Sanjay Kumar @ Sajjan and Tilak Raj @ Jasbir Singh @ Jassi. The Investigating Officer took him to Udaipur in Rajasthan. During his investigation, it transpired that one Tilak Raj had been working as a driver in Shambhu Travels at Udaipur, Rajasthan. On reaching Udaipur he came to know that ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 7 the said Tilak Raj used to reside there, but despite his best efforts he could not trace him.
b) On 6.9.1994, ASI Manjhel Singh, the Investigating Officer (PW-
38), arrested Sanjay Kumar @ Sajjan from Dharamshala, Distt. Kangra.
.
On the identification of accused Sanjiv Kumar, he prepared three spot maps/memos Ext. PW-38/A to 38/C in ST No. 44/96) depicting the places where the murder was committed.
c) ASI Sanjay Kumar (PW-44 in ST No. 44/96), also conducted the investigation. On June 18, 1996, in the presence of witnesses Bhagat Ram and Krishnu Ram, accused Tilak Raj @ Jasbir Singh made a disclosure statement, that he could get the Maruti van No. HP-02-3100 recovered. He further disclosed that he had sold it to accused Ramesh Chand resident of Udaipur, Rajasthan, who had changed the color of the said Maruti van from Navy Blue to White and its number to DNJ-4302. He further disclosed in his statement that accused Ramesh Chand had also sold this van to accused Rattan Lal resident of Tekri, Udaipur, Rajasthan.
The Prosecutor tendered this statement in evidence as Ext. PW-23/A (in ST No. 44/96). On 23.6.1996 in the presence of Lachhman Singh and Moti Singh accused Tilak Raj identified the house of accused Rattan Lal.
However, police could not find him. During the further investigation at Udaipur, the Investigating Officer SI Sanjay Kumar (PW-44) recovered the van from a mechanic shop of accused Jagdish Prajapati and arrested him in the case.
d) Accused Jagdish Prajapati made a disclosure statement that two years before accused Bhagwati Lal of village Sakrota, Distt. Udaipur, Rajasthan, had brought one Maruti van, which was without any number ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 8 plate and the said van had cuts in its roof on the driver seat, and he had repaired those areas. He also disclosed that he had changed the color of the van from navy blue to white. The Prosecutor tendered this statement in evidence as Ext. PW28/A (in ST No. 44/96). He further stated that shell .
of the Maruti van was refitted in another Maruti van bearing No. RJ27C 3965 and on his disclosure statement the said Maruti van was found parked outside the house of accused Bhagawati Lal at Sakrota, but on seeing the police, accused Bhagwati Lal ran away from the spot. SI Sanjay Kumar (PW-44) took into possession the said van. It was brought to Police Station Surajpur, Rajasthan.
e) Accused Jagdish allegedly made a disclosure statement to SI Sanjay Kumar that vehicle No. RPZ-1234 was sold to one Mange Lal resident of Udaipur for INR 73,000/- and it has the engine of the Maruti van No. HP02-3100. Such statement was recorded in the presence of witnesses Lachhman Singh and Moti Singh and tendered in evidence as Ext. PW-28/B (in ST No. 44/96). Later on, the Investigating Officer took into possession the vehicle No. RP 1234 vide seizure memo Ext. PW-28/C (in ST No. 44/96). The Investigating Officer (PW-44) got these vehicles checked from a mechanic, namely, Ravi Kumar who noticed that the chassis and engine of both these vehicles were tampered. Both the vehicles were taken into possession and brought to the Police Station at Bilaspur, HP.
f) The Vans that the Police had seized had number plates of registration number RPZ-1234 and RJ-27-C-3965. The prosecution got the recovered Van examined from the Deputy Director of Central Forensic ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 9 Science Laboratory to link it with the stolen Van having registration No. HP-02-3100.
g) During further investigation on 29.6.1996, ASI Sanjay Kumar (PW-44) took accused Tilak Raj @ Jasbir Singh for the investigation to .
District Bilaspur, where accused Tilak Raj made a disclosure statement in the presence of witnesses Kala Ram and Manohar Lal that he could identify the vehicle, the place from where he had taken the vehicle HP02 3100 from deceased Raman Bharti. After that accused Tilak Raj made another disclosure statement in the presence of witnesses Tulsi Ram and Kalan Devi that he could get identified the spot from where he had thrown the dead body and took them to the Panjok Naala and identified the place. The statement was reduced into writing and site plan Ext. PW 44/D was prepared.
h) The Investigating Officer also took the specimen signatures and handwriting of accused Tilak Raj in the presence of the Judicial Magistrate. He also took into possession the record of the State Transport Authority, Shimla and RTO Amritsar. The Investigating Officer also collected the evidence, to link the chain of events, right from the boarding of the Maruti van by the accused up to the sale of the same in Udaipur in Rajasthan.
6. The case was investigated and all the accused could not be apprehended and one of the accused had absconded and as such, the Court declared such accused as a proclaimed offender and proceeded against the remaining accused. Subsequently, on the arrest of the absconder, a separate trial was initiated. For this reason the record is contained in two different Sessions Trials namely, Sessions Trial No. 3 of ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 10 1995 which relates to accused Sanjiv Kumar @ Sanju and Sajay Kumar @ Sajjan @ Pappu and Sessions Trial No. 44 of 1996 which relates to accused Tilak Raj @ Jasbir Singh, @ Jassi @ Shayama @ Shiva @ Manjit @ Raj @ Sikander, Ramesh Chand, Jagdish Prajapati, Rattan Lal .
and Bhagwati Lal.
7. The trial Court found prima facie case against all the accused persons and framed charges against each of the accused as stated below:
ST No. 3 of 1995:
Name of accused Sections under which charges
framed
Sanjiv Kumar @ Sanju 302, 201 and 382 all read with 34 IPC
Sanjay Kumar @ Sajjan @ 302, 201 and 382 all read with 34 IPC
Pappu
ST No. 44 of 1996:
Name of accused Sections under which charges
framed
Tilak Raj @ Jasbir Singh @ 302, 201 & 382 all read with 120B & 34
Jassi IPC and 467, 468 & 420 read with
120B IPC.
Ramesh Chand 467, 468, 420 & 216 all read with 120B
IPC and 411 IPC
Jagdish Prajapati 467, 468, 420 & 216 all read with 120B
IPC
Rattan Lal 467, 468, 420 & 216 all read with 120B
IPC
8. The substance of the charges framed against the accused is that on 17.9.1993 accused Sanjiv Kumar, Sanjay Kumar @ Sajjan and Tilak Raj @ Jasbir Singh committed the murder of Raman Bharti, at a place known as Bhrampukhar, Bilaspur, and thereafter threw his dead body below the road, with a view to screen the evidence. After committing the murder, they committed the theft of his taxi, bearing No. HP-02-3100. The ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 11 charges against the other accused are that they have tampered with the document and purchased the said taxi. All the accused pleaded not guilty to the charges framed against each one of them and claimed trial.
9. Since all the exhibits and statements of the witnesses are almost .
similar, reference in this judgment will be made to the number of witnesses and the exhibit as contained in Sessions Trial No. 3 of 1995, being prior in time. Because the evidence in both the trials is also almost similar, therefore, it shall be appropriate to discuss the evidence in entirety. There is no conflict in the statements of the witnesses on material particulars.
10. We have heard the learned Additional Advocate General on behalf of the appellants-State and learned counsel for the respondents-accused and perused the entire record.
11. Seven persons were arraigned as accused in the FIR, namely A-
1 Sanjiv alias Sanju; A-2 Sanjay alias Pappu (Both in ST 3 of 1995); A-1 Tilak Raj alias Jasbir Singh alias Jassi, alias Shayama, alias Shiva, alias Manjit, alias Raj, alias Sikander; A-2 Ramesh Chand; A-3 Jagdish Prajapati; A-4 Rattan Lal and A-5 Bhagwati Lal (All in ST 44 of 1996). The impugned judgment deals with the prosecution of all the accused except A-5 Bhagwati Lal (ST 44 of 1996), who had been declared a proclaimed offender. During the trial the 2nd respondent/accused Sanjay Kumar @ Sajjan @ Pappu in ST No. 3 of 1995 had expired; therefore, the prosecution had abated against him. In ST No. 44 of 1996, which gave rise to Criminal Appeal No. 228 of 2007, after the judgment of acquittal, 1st respondent/accused Tilak Raj @ Jasbir Singh expired on 3.12.2002 and, therefore, the appeal of the State against accused Tilak Raj @ Jasbir Singh was also abated vide order passed by this Court on 21.6.2004 in ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 12 CrMPM No. 1220 of 2002 (in Cr.A. No. 228 of 2007). Rattan Lal, who was the 4th respondent/accused in Cr. Appeal No. 228 of 2007 also expired on 19.4.2009 and this Court vide order dated 15.6.2009 passed in Cr.MPM No. 295 of 2009 abated the prosecution against him.
.
12. The Question of Law that arises for consideration proposes that when the appeal under sections 377 and 378 CrPC, is filed against more than one accused and one or more of them die and one or more accused is alive, then whether the appeal shall abate in full or in part and whether it would continue against the surviving accused?
a) S. 394(1) CrPC reads as follows, "(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant :
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation - In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister. The proviso as well as the explanation to sub-section (2) of this section is a new provision. Read together, they exempt an appeal against a conviction and sentence of imprisonment from abatement on the death of the appellant, if his near relative obtains leave of the court to continue the appeal."
b) Sec. 394(1) CrPC mandates that every appeal u/s 377 or 378 CrPC shall finally abate on the death of the accused.
c) In State of Maharastra v. Eknath Yeshwant, (1981) 2 SCC 299, the main accused died, and the surviving accused was just an abettor. Supreme Court declared the appeal against the surviving accused to be infructuous. Supreme Court did not use the word "Abated" but used the word "Infructuous." The extract of the Judgment is as follows: ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 13
It is stated by the counsel for the respondents that respondent No. 1 is dead. According to the prosecution, respondent No. 1 is the main accused and the second respondent was merely an abettor. Both were acquitted by the High Court. Hence this appeal to this Court. Since the appeal abates against the first respondent on account of his death and the second respondent has already been acquitted, appeal against the second .
respondent becomes infructuous. The appeal is accordingly disposed of.
d) In Ram Ishwar Chaudhary v. State of Bihar, 1986 Cri.LJ 1366, Patna High Court observes,
12. One cannot fail to take notice of the fact that sub-section (2), Section 394 confers a right to appeal to the High Court to any person convicted and sentenced to imprisonment for more than seven years, who for the purpose of sub-section (2), Section 394 of the Code is described as the appellant. The right to appeal in any case of acquittal is conferred upon the State Government against an original or appellate order of acquittal passed by any court other than a High Court. Under Section 394(1), indeed, it is the death of the accused which has been made to cause abatement of the appeal under Section 378 of the Code. Several persons convicted in a case may together join in a common appeal preferred by them, but the appeal by each one of them, although in common with others, is an appeal by him against his own conviction, as each accused, on his conviction, becomes, in the event of an appeal preferred, the appellant in his individual capacity. So in the case of acquittal every individual accused is pronounced not guilty.
Section 378 of the Code provides for a common appeal against acquittal of more than one accused, but in the event of appeal filed, each accused individually has to take the appellate order and the High Court can confirm the original or appellate order of acquittal in the case of one and in the case of other reverse the acquittal and convict him. The expression "the accused" used in Section 394(1) of the Code in this sense has to confine to the case of the individual accused who is dead without affecting the appeal against acquittal, so far other accused are concerned.
e) In State of Karnataka v. Selvi J. Jayalalitha, (2017) 6 SCC 263, Hon'ble Supreme Court decided the appeals of surviving accused and declared the abatement only against Selvi J. Jayalalitha.
f) If an appeal has to close only due to the death of one of the accused, then at the first place itself, it would give leverage to the accused ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 14 to do away one of them and go scot-free, only on this technical snag. It is neither the legislative intention nor can it be interpreted with such a narrow compass. Although the appeal filed by the State is in the terminology of a singular noun, legally speaking, it is an appeal against each of the .
accused. When it comes to abatement of appeal, all the accused cannot swim and sink in the same boat. Thus the legal interpretation of S. 394(1) CrPC is that when there is more than one accused, the appeal abates in part and not in full and it abates only qua the accused, who is dead; and depending upon the role of the surviving accused, the appeal against the surviving accused either continues or becomes infructuous.
g) In the present case, the role of the surviving accused was at par with that of the expired accused. Thus the appeal does not abate in full, and it abated only in part. The appeal against the surviving respondents shall continue and only a judgment can close it.
APPRECIATION OF EVIDENCE AND REASONING:
13. The entire case is based on circumstantial evidence; therefore, it is necessary to cull out the circumstances to arrive at a conclusion that the chain of the circumstances is complete. None of the accused pleaded guilty and in their statements under sections 313 CrPC, their stand is of denial.
(a) Missing of Raman Bharti:
Sh. Tirath Ram, father of Raman Bharti, appeared as PW-11 (in ST No. 44/96) and testified that his son went missing from noon of Sep 17, 1993. He further testified that at the time when his son had gone missing, he was wearing one vest on which a word in English embossed and was also wearing black pant, grey shoes, and one locket. This circumstance is proved.
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 15
(b) Absence of missing person report:
An alarming feature has emerged in this case. Raman Bharti had left Nurpur from where he was plying his taxi, and it was his native place and home, to go to Shimla. He did not return, and even if the statement of .
Kukka @ Amin Chand (PW-4) is believed that on 20.9.1993 the brother-in- law of the deceased had inquired from him about the deceased, still there was no clue till they had visited the Police Station Barmana. During this period, when the family had already become suspicious, then they must have informed some Police Station about his having gone missing along with the vehicle. They did frantic searches and had even visited Shimla. The investigation is silent that why did the family not report about the missing of Raman Bharti and if they had filed such report, then what were the contents of the same. Section 114 (g) of the Indian Evidence Act, 1872 mandates that adverse inference shall be drawn against the person who withholds the evidence and the presumption is that it was not produced because if produced it would have been unfavorable to the person withholding it. This anomaly is very significant because it would have clarified that the deceased Raman Bharti went with these persons, as later on claimed by Kukka @ Amin Chand (PW-4 in ST No. 3/95). The absolute silence on this aspect would draw an adverse inference that there was some missing person report and contents of such report were not compatible with the version stated by Amin Chand and for that reason the same was withheld from evidence.
(c) Evidence of last seen:
Kukka @ Amin Chand, who appeared as PW-4 in ST No. 3/1995, was a resident of Nurpur, Distt. Kangra. He testified that Raman Bharti, owned a ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 16 Maruti van bearing No. HP-02-3100 and it was registered as a taxi. He further testified that Raman Bharti used to drive his cab. Although this witness did not support the case of the prosecution in its entirety, but he did prove the fact that on 17.9.1993 in his presence, three boys who were .
around 23 years of age, had come there and they asked one Fauji driver of a Maruti van to take them to Shimla to attend a marriage which was at a distance of 30 kilometers from Shimla. On this, said Fauji refused to go with them. He further admitted that after that, those three boys went to Raman Bharti and hired his taxi for INR 2200/-. Kukka @ Amin Chand further stated that Raman Bharti had asked him to accompany them till Shimla, but he refused because those three boys had said that two girls also have to accompany them from Dharamshala; therefore, there was no extra seat. He admitted that after that, he did not see Raman Bharti. However, he did not identify any of the accused in the Court. He denied that he had stated to the police that he could recognize those three persons, if produced before him. Police did not subject the accused to any Test Identification Parade. Thus, the prosecution could not prove the fact that three persons, who had travelled with deceased Raman Bharti, in his taxi, were the persons who were arraigned as the accused and charged with the offence. Thus the chain of circumstances has broken at the very initial stage.
(d) Identification of the accused:
As per the case set up by the prosecution, the accused persons were seen by Kukka @ Amin Chand (PW-4 in ST No. 3/95), while hiring the taxi of Raman Bharti and leaving Nurpur towards Shimla. However, Kukka @ Amin Chand did not identify any of the accused in the Court. He denied ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 17 that he had stated to the police that he could recognize those three persons if produced before him. Amin Chand was re-examined on 4.12.1997 (in ST No. 3/95), wherein he stated that accused Tilak Raj was sitting on the front seat with the driver and two boys sat on the back seat.
.
Thus he identified accused Tilak Raj. In cross-examination, he was confronted about his not identifying the accused when he had earlier appeared in the Court on 12.6.1995 and also in the other Sessions Trial being ST No. 44/1996 as PW-32. He admitted that he had refused to identify the accused earlier because at that time they had clean shaved their heads and had kept beards. The police did not conduct any Test Identification Parade. Even otherwise, there was lot of delay in identification of the accused in the Court. Kukka @ Amin Chand had not mentioned any descriptive features, race, color etc, in his previous statement. Given this contradictory and cryptic evidence, the circumstance of identification of accused is not proved.
(e) Search of Missing Person:
Kukka alias Amin Chand (PW-4 in ST No. 3/95) in whose presence three persons had hired the taxi of Raman Bharti to Shimla testified that on 20.9.1993 one Ravinder Dhiman, brother-in-law of the deceased Raman Bharti inquired from him about the deceased and his taxi. On this, he told him about the fact of going to Shimla with three boys. Then these two persons came to Shimla to search Raman Bharti. In Shimla, one sister of Raman Bharti was residing, and they went to her house, and from there they came to Barmana. On reaching Barmana Police showed them the clothes and locket which they had recovered from the dead body on 23.9.1993. On seeing those clothes and locket, Kukka @ Amin Chand ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 18 identified them to be belonging to deceased Raman Bharti. However, in Court, this witness did not identify the locket and the clothes to be belonging to the deceased Raman Bharti but identified the shoe (Ext. P-2) as the one which he was wearing. However, he admitted that when the .
deceased had left with those three boys at that time, he was wearing black pant. However, he realized that the color of the van was blue and not black. However, the absence of evidence about lodging of a missing persons report is doubtful. Despite these discrepancies, the circumstance that the family had made a frantic search of Raman Bharti, is proved.
(f) Time of death:
Dr. N.K. Sankhyan (PW-14 in ST No. 44/96) who conducted the post mortem examination of the deceased on 23.9.1993 took out and preserved the clothes worn by the said person. The Doctor concluded that the dead body was of a young human male and the time between the death and the post mortem was about six days which leads to Sep 17, 1993. This was the time when the deceased had gone missing. At that stage the police had no information that Raman Bharti had gone missing from Sep 17, 1993. Thus the fact of death taking place on September 17, 1993, is proved.
(g) Identification of dead body:
During investigation, the police preserved the clothes of the dead body for evidence, and during the trial, Tulsi Ram (PW-1) and Babu Ram (PW-2), the witnesses who had seen the dead body initially, identified the clothes to be the same that were on the deceased. They testified that the clothes seized by the police were the same, which were on the dead body at the time when they had seen the same. Tirath Ram (PW-6 in ST No. 3/95 & ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 19 PW-11 in ST No. 44/96), father of the deceased testified that the locket and clothes which were shown to him in Court during trial belonged to his deceased son. He had no reason to own some other dead body to be that of his son. Even the police of Police Station Bilaspur which had recovered .
the dead body had no axe to grind against any person. Sh. Tirath Ram who appeared as PW-11 (in ST No. 44/96) testified in his examination in chief that from photographs Ext. P-22 and Ext. P-23 he could not say with certainty that the dead body was of his son Raman Bharti. However, he identified the clothes and locket, which the Doctor had taken off from the dead body of his son. Therefore, even though the dead body was decomposed and it could not be identified because of its decomposition still because of the locket and the clothes worn by the person and tentative age and time of death would lead to a certainty that the dead body was that of Raman Bharti (deceased). Thus the dead body recovered on September 20, 1993, at Panjok Nala, Bilaspur is proved to be of deceased Raman Bharti.
(h) Cause of death was murder:
Dr. N.K.Sankhyan, who conducted the post mortem examination of the deceased, noticed several antemortem injuries on his body. There were incised wounds as well as a fracture on various parts of the body. He did not see any animal bite or the injuries caused by claws and teeth bites of wild animals. Therefore, the prosecution is also able to prove that the cause of death was not natural but homicidal and given the nature of the injuries, it is culpable homicide amounting to murder punishable under Section 302 of IPC. Recovery of the vial which was tested by the FSL as local anesthesia would also give corroboration to the cause of death being ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 20 culpable homicide amounting to murder. This Court would draw an inference that the accused first of all made Raman Bharti (deceased) unconscious, by spraying local anesthesia and once he was not in his full state of consciousness then quickly done away with his life. Later on, the .
assailants threw the dead body in an isolated place with a motive to screen the evidence. ASI Ranjha Ram (PW-22 in ST No. 44/96), who conducted the initial investigation in the case, testified that from the trouser of the deceased, he also recovered a vial which mentioned: "Delay spray made in Germany - Spray Dooz." Such recovery took place on Sep 23, 1993, that is before the family members of Raman Bharti had contacted the police. Thus there was no reason for the police to plant such a vial. Therefore this fact stands proved. The prosecution was also able to determine the link evidence from the spot from where such bottle was taken into possession from the trouser of the deceased up to its testing in the laboratory.
(i) Evidence regarding presence of accused in the Maruti Van:
The prosecution examined one Sh. Gopi as PW-11 (in ST No. 3/95) to prove that accused Tilak Raj had confessed before him about the petrol pump from which he had filled petrol in the van. However, this is hardly any evidence to place reliance. Neither the petrol pump was named nor the date when such extra-judicial confession was made, was disclosed and why was it made and what was the relationship between this witness and Tilak Raj @ Jasbir. Even otherwise, accused Tilak Raj is dead, and this evidence is only against him, therefore, also, if it were admissible, still it would not have connected the presence of accused Sanjiv Kumar, ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 21 Sanjay Kumar and Tilak Raj in the van, out of whom only accused Sanjiv Kumar is alive.
(j) Disclosure statement of accused Sanjay Kumar alias Sanjjan regarding the place from where the dead body was thrown:
.
The prosecution examined Constable Narpat Ram (PW-16 in ST No.3/95) to prove the disclosure statement (Ext. PM) of accused Sanjay Kumar alias Sanjjan in ST No. 3/1995. However, accused Sanjay Kumar is dead; therefore, this evidence is also not going to arrive at any conclusion. Even otherwise, his testimony is also cryptic and leads to no conclusion because it points out to the place from where the accused had thrown the dead body. Whereas, the police had already recovered the dead body from that place. Therefore, in the absence of recovery, such confession does not fall within the exception of Section 27 of the Indian Evidence Act, 1872.
(k) In Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217, a three member bench of Supreme Court holds,
20. Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden...
(l) In Thimma v. State of Mysore, 1970 (2) SCC 105, a three member bench of Supreme Court holds,
10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 22 admissible in evidence under Section 27 of the Evidence Act. This information it was argued also lends support to the appellant's guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from .
other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellant's guilt. We are accordingly disinclined to take into consideration this statement.
(m) Evidence of stay of accused Tilak Raj at Indora and purchase of scooter:
The prosecution also tried to prove regarding the stay of accused Tilak Raj in Indora in Distt. Kangra. However, because of the death of accused Tilak Raj, all this evidence is now irrelevant as the appeal against him already stands abated. The case of the prosecution is that accused Tilak Raj @ Jasbir Singh @ Jassi @ Shiva @ Sikander had purchased a scooter from Ganesh (PW-5 in ST No. 3/95 and PW-10 in ST No. 44/96). Ganesh was dealing as a vehicles dealer, and he had a scooter owned by Ashok Kumar for sale. The Police took into possession the documents of sale of the scooter and took specimen handwriting of Tilak Raj and got it compared from the Hand Writing Expert. However, this evidence is confined to accused Tilak Raj alone and not against any other accused. But since the appeal against accused Tilak Raj @ Jasbir Singh also abated because of his death, therefore, there is no point to discuss this evidence. ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 23
(n) Identification of the Maruti van:
The most substantive evidence against the vehicle being taken from Kangra and on its way towards Shimla has come in the statement of Ramesh Kumar (PW-17 in ST No. 3/95) who was posted at the Toll Tax .
Barrier Nadaun Bharoli, Distt. Kangra, HP. He stated that on 17.9.1993 at about 6.40 p.m. vehicle No. HP-02-3100 had crossed the bridge, and he had made the requisite entry in the register (Ext. PN). This evidence proves that on 17.9.1993 the Maruti van of Raman Bharti had crossed this Toll Tax Barrier and nothing else. This evidence was further corroborated by Shiv Charan (PW-18 in ST No. 3/95) who was maintaining the register and receipts. Thus this circumstance is proved. However, what is important is to connect the accused with the van. The recovery of van is not proved. Kukka @ Amin Chand (when re-examined as PW-4 in ST No. 3/95) identified the van which was parked in the District Court building and was bearing registration number RJ27C 3965 to be the vehicle belonging to Raman Bharti and also testified that the color had been changed from Navy Blue to White and number plate had also been changed. The Van that the Police had seized had number plates of registration number RPZ- 1234. The facts proved by the prosecution do not connect the stolen Van having registration No. HP-02-3100 or its Engine or Chasis, with either RPZ-1234 or RJ27C 3965. The evidence of Expert, the Deputy Director of Central Forensic Science Laboratory, who had examined the seized Van is meaningless because his evidence did not prove that the Vans seized by the Police was the one that was the same which was owned and driven by Raman Bharti.
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 24
(o) Recovery of Maruti van:
The disclosure statement, pursuant to which, the police claimed to have recovered Maruti Van, was recorded on June 18, 1996, more than two years and nine months of the incident. The appeal against accused Tilak .
Raj @ Jasbir Singh stands abated because of his death. The witnesses to the recovery of Maruti Van did not support the case of the prosecution. PW-27 did not support the case regarding tampering of the engine number of Van and stated that Engine number was similar to the one mentioned in the Registration Certificate. PW-28 stated that the police had taken his signatures on blank papers and at that time one Maruti Van was in possession of the police. Ld. Trial Court has discussed this evidence in details from Para 32 to 34 of the Judgment. The reasoning and conclusion drawn by Ld. Sessions Judge is legally correct. Thus this circumstance is not proved.
(p) Presence of accused Tilak Raj, Sanjiv Kumar and Sanjay Kumar at Udaipur, Rajasthan:
The prosecution tried to prove the presence of these persons in Udaipur to demonstrate the sale of Maruti van. To establish this fact, the prosecution examined Goverdhan Singh Chauhan (PW-20 in ST No. 3/99) who was in the business of renting rooms. He identified those persons from the photographs and stated that all these persons had stayed in his house for one month on a monthly rent of Rs. 300/-. The accused had further claimed that they had come from Dharamshala, HP. He also states that during their stay accused Sanjiv was unwell and was admitted in Government Hospital, Udaipur, and they had gone to inquire about his well being. The next fact which he tried to prove is that he had met accused Tilak Raj in Bombay and Gujarat. In cross-examination, he could not tell any date or time. Although no rent receipt was produced but generally ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 25 when houses are let out on rent for short term people do not enter into a rent agreement to avoid the implications of the Rent Protection Acts. Even if the presence of these three persons is proved still it was incumbent upon the prosecution to get these three accused identified from .
Goverdhan Singh Chauhan during his statement on oath in Court during the trial. However, for the reasons best known to the prosecution, they were not got identified from him. When accused were available, then their identification through photographs would hardly be a convincing piece of evidence.
14. To establish the guilt of the accused and to connect with the crime, this evidence is not sufficient. It does not lead to any conclusion that it were the accused, who had committed the offence. The facts to connect any of the respondents with the commission of crime are not proved. The prosecution could not prove beyond reasonable doubts that it were the accused who had hired the taxi of Raman Bharti. The star prosecution witness, Kukka alias Amin Chand (PW-4 in ST No. 3/95), in his testimony did not identify any of the accused. He was re-examined and during his testimony on Dec 4, 1997, he could identify only accused Tilak Raj, as the person who was sitting on the front seat of the Van. There are two limbs of this evidence, firstly, during his earliest examination, he had refused to identify Tilak Raj and secondly when he was re-examined, he had already seen the accused Tilak Raj, in Court, where he had appeared to attend the trial. Therefore, if later on, he was able to identify him, it would not be credible identification. Moreover, appeal against Tilak Raj (A-1 in ST 44 of 1996) stands abated, due to his death. There is no evidence that accused Sanjiv (A-1 in ST 3 of 1995) and Sanjay (A-2 in ST 3/1995), were also ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 26 sitting on the back seat of the Van. The trial qua accused Sanjay, had abated due to his death, This evidence, even if was proved, still was only against accused Tilak Raj and none else. The evidence proved by the prosecution, against the surviving respondents, is not sufficient to arrive at .
any conclusion about their involvement with the crime or connection with the offence.
15. LAW RELATING TO APPEAL AGAINST ACQUITTAL:
a) In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, The Constitutional Bench of Supreme Court holds,
16. Section 423 (1) prescribes the powers of the appellate Court in disposing of appeals preferred before it and clauses (a) and (b) deal with appeals against acquittals and appeals against convictions respectively. There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction.
That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. Sometimes, the width of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasised, and the emphasis is expressed in different ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 27 words or phrases used from time to time. But the true legal position is that however circumspect and cautious the approach of the High Court may be in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused.
.
b) In Babu v. State of Kerala, (2010) 9 SCC 189, Supreme Court holds,
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219 , Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 , Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 , Narendra Singh v. State of M.P., (2004) 10 SCC 699 , Budh Singh v. State of U.P., (2006) 9 SCC 731 , State of U.P. v. Ram Veer Singh, (2007) 13 SCC 102 AIR 2007 Supreme Court 3075, S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 , Arulvelu v. State (2009) 10 SCC 206 , Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98 , and Ram Singh v. State of H.P., (2010) 2 SCC 445 ).
13. In Sheo Swarup v. King Emperor, (1993-34) 61 IA 398 : AIR 1934 PC 227 the Privy Council observed as under: (IA p. 404) '? the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.' ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 28
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State, IR 1954 SC 1 : 1954 Cri LJ 225, Balbir Singh v. State of Punjab, AIR 1957 Supreme Court 216 : 1957 Cri LJ 481, M.G. Agarwal v. State of Maharashtra, AIR 1963 Supreme Court 200 : (1963) 1 Cri LJ 235, Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 , Sambasivan v. State of Kerala, (1998) 5 SCC 412 , Bhagwan .
Singh v. State of M.P., (2002) 4 SCC 85 and State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755 .)
15. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 this Court reiterated the legal position as under: (SCC p. 432, para
42) '(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ?substantial and compelling reasons?, ?good and sufficient grounds?, ?very strong circumstances?, ?distorted conclusions?, ?glaring mistakes?, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'
16. In Ghurey Lal v. State of U.P., (2008) 10 SCC 450 this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court?s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 2917. In State of Rajasthan v. Naresh, (2009) 9 SCC 368 , the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) '20. ? an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.' .
18. In State of U.P. v. Banne, (2009) 4 SCC 271 this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) '(i) The High Court?s decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court?s conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court?s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.' A similar view has been reiterated by this Court in Dhanapal v. State, (2009) 10 SCC 401 .
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court?s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. (1984) 4 SCC 635 , Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312, Triveni ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 30 Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665 , Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501, Aruvelu8 and Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 )
21. In Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 this Court held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable .
person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
16. LAW RELATING TO THE CIRCUMSTANTIAL EVIDENCE:
a) In Hanuman Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, a three member bench of Supreme Court holds,
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 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 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..."
b) In Eradu and Ors. v. State of Hyderabad, AIR 1956 SC 316,
10. ..It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused.
c) In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, A Constitutional Bench of Supreme Court holds, "18. ...It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons' conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the circumstances proved in the case are consistent either with the innocence of the accused or ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 31 with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Courts has to judge the evidence in the ordinary way, and in the appreciation of .
evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved; the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt..."
d) In Gambhir v. State of Maharashtra, (1982) 2 SCC 351, "9. ...The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three 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. 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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law."
e) In, Sharad Biridhichand Sarda v State of Maharashtra, (1984) 4 SCC 116, a three member bench of Supreme Court holds, "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 32 additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
152. Before discussing the cases relied upon by the High Court .
we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, (supra). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC
656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra) :
"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 in the first instance be fully established and all the facts so established should be consisent 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 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."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made :
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 33 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
f) In Kishore Chand v State of Himachal Pradesh, (1991) 1 SCC 286, Supreme Court holds,
5. "In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established..."
g) In Vasa Chandrasekhar Rao v. Ponna Satyanarayana & Anr.
(2000) 6 SCC 286, "7. ...Where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which a conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of the guilt and inconsistent with the innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. ..."
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 34h) In, B. Venkat Swamy v. Vijaya Nehru, (2008) 10 SCC 260, a three member bench of Supreme Court observed,
19. "...13. 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".
Placing reliance upon the Principles of law laid down by Supreme Court in Hanumant Govind Nargundkar and anr. v.
State of Madhya Pradesh,AIR 1952 SC 343, the bench holds,
14. 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.
SUM UP:
17. From the summary of law relating to Circumstantial Evidence, the following fundamental principles emerge:
1) CIRCUMSTANCES SHOULD BE FULLY ESTABLISHED:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. (Sharad, (1984) 4 SCC 116). In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 35 circumstances relied on must be fully established. (Kishore, (1991) 1 SCC 286).
2) CIRCUMSTANCES SHOULD BE CONSISTENT:
The circumstantial evidence should not only be consistent with the .
guilt of the accused but should be inconsistent with his innocence. (Gambhir, 1982 (2) SCC 351). It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons' conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. (M.G. Agarwal, AIR 1963 SC 200).
3) CIRCUMSTANCES SHOULD BE CONCLUSIVE:
The circumstances should be of a conclusive nature and tendency. (Sharad, (1984) 4 SCC 116). It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. (Eradu, AIR 1956 SC 316).
4) CIRCUMSTANCES SHOULD BE OF DEFINITE TENDENCY:
Circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (Gambhir, (1982) 2 SCC 351).
5) NO OTHER HYPOTHESIS EXCEPT ONE TO BE PROVED:
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 36
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. (Sharad, (1984) 4 SCC 116). 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. (Gambhir, (1982) 2 SCC 351). They should exclude every possible hypothesis except the one to be proved. (Sharad, (1984) 4 SCC 116).
6) CUMULATIVE EFFECT OF GUILT & NOT INNOCENCE:
In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. (Vasa Chandrasekhar, (2000) 6 SCC 286).
7) CHAIN OF CIRCUMSTANCES MUST BE COMPLETE:
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. (Gambhir, (1982) 2 SCC 351).
8) FALSE DEFENCE AS AN ADDITIONAL LINK ONLY WHEN ALL CIRCUMSTANCES ARE ESTABLISHED:
Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (Vasa Chandrasekhar, (2000) 6 SCC 286). It is well settled that the ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 37 prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves .
complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. (Sharad, (1984) 4 SCC 116). CONCLUSION:
18. In view of the analysis of the evidence and application of law, the prosecution has failed to prove its case beyond reasonable doubt. The chain of circumstances is broken. There is no error in the reasoning of the Trial Court, and there is no occasion for this Court to take a view contrary to the one taken in the impugned judgment. The Trial Court, in our considered view, has correctly and accurately appreciated the evidence. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous, or based on an incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice.
19. Given the above discussion, both the appeals filed by the State are dismissed. The common impugned judgment dated 15.5.2002, passed in Sessions Trial No. 3 of 1995 (State vs. Sanjiv Kumar @ Sanju and another) and Sessions Trial No. 44 of 1996 (State of Himachal Pradesh vs. Tilak Raj @ Jasbir Singh & others) is affirmed. The bail bonds ::: Downloaded on - 29/09/2019 02:40:05 :::HCHP 38 furnished by the respondents-accused are discharged. All pending applications (if any) are closed. Records of the Trial Court be returned.
(V. Ramasubramanian) .
Chief Justice.
(Anoop Chitkara) Judge.
August 27 , 2019 (PK)
r to
::: Downloaded on - 29/09/2019 02:40:05 :::HCHP