Himachal Pradesh High Court
Surinder Kumar vs State Of Himachal Pradesh on 2 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 96 of 2019 Reserved on 28.03.2024 Date of Decision: 2nd May, 2024 .
Surinder Kumar ....Appellant Versus State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ram Murti Bisht, Advocate.
For the Respondent : Mr Pawan Kumar Nadda, Additional Advocate General.
Rakesh Kainthla,Judge The present appeal is directed against the judgment and order dated 27.10.2018, vide which the appellant (accused before the learned Trial Court) was convicted for the commission of offences punishable under Sections 302, 201 and 309 of the Indian Penal Code (IPC) and he was sentenced as under:-
Sr. No. Sections under which the Sentence imposed conviction was recorded
1. Section 302 of IPC Life imprisonment and pay a fine of ₹ 1,00,000/- and in default of ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 2 payment of the fine, to further undergo simple imprisonment for two years.
2. Section 201 of IPC Rigorous imprisonment for three years and pay a fine of .
₹5000/- and in default of payment of the fine, to further undergo simple imprisonment for three months.
3. Section 309 of IPC Simple imprisonment for one year and pay a fine of ₹ 1000/-
and in default of payment of the fine, to further undergo simple imprisonment for one month.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 302, 201 and 309 of IPC. It was asserted that the informant Roshni (PW-11) made a complaint to the police on 07.07.2015 stating that her mother Amila Devi (since deceased) was working in a Hotel Rollingrang, Kalpa. Deceased-
Amila and Kiran (PW-26) had gone to buy kerosene on 05.07.2015.
They returned at about 11:00 a.m. in a white vehicle. Kiran went to her home. Deceased told the informant-Roshani Devi (PW-11) that she would return soon and she(Roshani Devi) should wash ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 3 the clothes. The deceased and Kiran (PW-26) boarded the vehicle being driven by accused Surinder Kumar and all of them went towards Chugling Pangi etc. The deceased never returned to her .
home. Informant-Roshni Devi searched for her but failed to trace her. She also made enquiries in Hotel Rollingrang and was informed that her mother had not reported for duty. Kiran returned on the night of 06.07.2015 and said that she and the deceased had gone to Rampur in the vehicle of accused Surinder Kumar. Kiran had got down at Rampur and returned with her husband, whereas the deceased remained with accused Surinder at Rampur. Her articles i.e. pair of chappal (Ext. P-2), Basket (Ex.
P-3), Broken Nail (Ext. P-7), earrings (Ex.P-9), were found on the road near Auktong Hotel by Bhag Chand (PW-4), a morning walker on 06.07.2015. He informed the police. The police showed these articles to Roshni Devi (PW-11), who identified them to be belonging to the deceased Amila. The police recorded the statement of Roshani Devi (PW-11) and registered the F.I.R.
(Ext.PW-29/A).
3. ASI Narveer Singh (PW-32), seized the pair of Chappal (Ext.P-2), basket (Ext.P-3), used chewing gum (Ex. P-5), broken piece of nail (Ext.P-7) and artificial broken earring with one ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 4 detached artificial pearl (Ext. P-9). He also lifted a soil sample (Ex.
P-12) and a blood sample from the spot with the help of cotton (Ext.P-10). They were put in different parcels (Exts.P-1, P-6, P-8, .
P-11 and P-13) respectively and the parcels were sealed with seal impression 'H'. Specimen of seal impression, (Ext.PW-32/B), was separately taken on a piece of a cloth. The parcels were seized vide Memo (Ext.PW-4/A). A site plan (Ext.PW-32/C), showing the place of recovery was also prepared. He prepared an identification memo (Ext. PW-2/A). He recorded the statements of witnesses as per their version.
4. SI Laxman Kumar, (PW-34), searched for Amila, but could not find her. He received information on 07.07.2015 that accused Surinder Kumar was admitted to IGMC, after consuming some poisonous substance. He went to Shimla on receipt of the information.
5. An information was received in the Police Station, Dhalli on 07.07.2007 that a vehicle bearing registration No. HP-
01A-2992 was required for investigation. ASI Kuldeep Singh (PW-
18) and other police officials were sent for the search of the vehicle. An entry (Ext.PW-31/B) was recorded at the Police ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 5 Station. He was informed that the vehicle was parked on the road leading to IGMC, Shimla and its occupant, namely, Surinder Kumar was taken to IGMC, Shimla. He went to IGMC and filed an .
application (Ext.PW-18/A) for getting the MLC of the accused-
Surinder Kumar and preservation of the gastric lavage.
6. Dr. Pradeep Jalota (PW-33) conducted the medical examination of the accused. He found the smell of organo phosphorous compound coming out of the mouth of the accused.
The Gastric lavage was done. Blood and gastric lavage samples were preserved and handed over to the police official for analysis.
A container of poisonous substance consumed by the accused-
Surinder was also handed over to the police official. MLC (Ext.PW-33/A) was issued.
7. ASI Kuldeep Singh (PW-18) seized the vehicle. SI/SHO Laxman Kumar (PW-34) reached Shimla in the meantime. ASI Kuldeep Singh (PW-18) handed over the vehicle and other articles to SI/SHO Laxman Kumar (PW-34). Kanta Kumari, (PW-10), wife of the accused handed over the clothes of the accused and driving license to SI/SHO Laxman Kumar, who seized them vide memo (Ext.PW-10/A). He directed Shanti Lal (PW-6) to take the vehicle ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 6 to FSL, Junga. The vehicle was examined at FSL, Junga. Middle seat cover, underwear, short-sleeved T-shirt, piece of dhathu, socks, blanket, metallic rod, hair-like strands, some soil and sand .
particles were seized from the vehicle for forensic examination.
8. SI/SHO-Laxman Kumar (PW-34) went to Rishab Guest House Rampur on 10.07.2015 and found after the inspection of the Visitors' Register that Kiran had stayed with her husband in the Guest House on the intervening night of 05/6.07.2015. He went to the Police Post, Chaura. He checked the Vehicle Movement Register and found that the accused had crossed the check post with his vehicle on 05.07.2015. He obtained the photocopies of the Vehicular Movement Register (Ext.PW-20/A, Ext.PW-20/B and Ext. PW-21/A). Call detail records (Ext.PW-7/B) of the mobile phone of the accused was received on 12.07.2015. It was found that the accused had also visited the Rarang and Badhal area on 05.07.2015. He went to Thopan (a place near Rarang) and recorded the statements of the witnesses. He interrogated Kiran and produced her before the Judicial Magistrate, Anni, where she made a statement under Section 164 of Cr.P.C.(Ext.PW-26/A). He also obtained the blood samples of Roshani and the accused on FTA cards. The accused made a disclosure statement (Ext.PW-
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 712/A) regarding the manner of commission of a crime and showed various places. He prepared Memos (Ext.PW-12/C and Ext.PW-12/D). He also prepared a site plan (Ext.PW-34/D). The .
accused took the police and the witnesses to a place near Kharo and pointed out the place from where he had thrown the dead body of Amila into the river Satluj. A memo (Ext.PW-12/B) and site plan (Ext.PW-34/E) were prepared. The accused also pointed out the places from where he had withdrawn the amount, purchased the insecticide and subsequently consumed it. He prepared the memo (Ext.PW-12/D) and site plan (Ext.PW-34/F).
The material objects were sent to FSL, Junga. Reports (Ext.PX, PX-
1 to Ext.P-4) were issued. Statements of the witnesses were recorded as per their version. After completion of the investigation, the challan was prepared and presented before the Court of Learned Chief Judicial Magistrate, Kinnaur, who committed it to the Court of Learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P.
9. Learned Sessions Judge charged the accused with the commission of offences punishable under Sections 302, 201 and 309 of IPC. The accused pleaded not guilty and claimed to be tried.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 810. The prosecution examined 35 witnesses to prove its case. Sohan Singh (PW-1) was posted as a Manager at H.P. State Co-operative Bank, who supplied a photocopy of the cheque .
issued by the accused for withdrawing the money; Narender Kumar (PW-2) is the witness to the identification of the articles belonging to the deceased and the disclosure statement made by the accused; Ashok Kumar (PW-3) did not support the prosecution case; Bhag Chand (PW-4) is a morning walker, who saw the articles of the deceased lying on the road; Rakesh Kumar (PW-5) noticed the vehicle of the accused from which two females got down; Shanti Lal (PW-6) was posted as a Home Guard, who witnessed the recovery of various articles and drove the vehicle of the accused to FSL, Junga; Devinder Verma (PW-7) proved the call detail records; Manoj Kumar (PW-8) proved that the accused had purchased some articles from him and two female occupants were sitting in the vehicle of the accused; Manjeet Singh (PW-9) carried the case property to MHC, Police Station, Kalpa, H.P;
Kanta Kumari (PW-10) is the wife of the accused, who has not supported the prosecution case. Roshni (PW-11) is the daughter of the deceased, who had made a complaint to the police regarding the fact that her mother was missing; Jitender Kumar (PW-12) is ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 9 the brother of the deceased, who witnessed the search of the vehicle, documents and articles. He also witnessed the disclosure statement of the accused and subsequent places pointed out by .
him. Surender Kumar (PW-13) sold two containers of insecticide but he could not identify the accused; Dr Ravi Chand Sharma (PW-
14) proved that the accused was suffering from mental and behavioural symptoms due to the consumption of alcohol, tobacco and cannabis; Manoj Kumar (PW-15) found the vehicle parked on the roadside and he saw the accused lying inside it;
Kamal Dev (PW-16) carried the articles to FSL, Junga; Vishal Thakur (PW-17) proved various entries in the daily diary register;
ASI Kuldeep Singh (PW-18) searched the vehicle and applied for a medical examination of the accused. He also seized the vehicle, documents and clothes of the accused; ASI Mehar Chand (PW-19) carried the case property to FSL, Junga and the vehicle from FSL, Junga to Police Station Rekongpeo; HHC Govind Prasad (PW-20) and HHC Hem Chand (PW-21) proved the entry regarding the crossing of the vehicle bearing No. HP01A-2992 from Check Post;
Chaura; Constable Amar Singh (PW-22) handed over the footage of the CCTV camera to the police; Tek Chand (PW-23) prepared the CD from the CCTV footage; Constable Gurmeet (PW-24) is the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 10 witness to the recovery of the documents. Dr.Ashok (PW-25) obtained the blood sample of Roshni Devi; Kiran (PW-26) accompanied the accused and the deceased on 05.07.2015; HC .
Sarju Ram (PW-27) proved the disclosure statement of the accused to the effect that he (accused) could point out the places from where he had thrown the dead body. The case property was also handed over to him; HC Hukam Lal (PW-28) was posted as MHC, who sent the case property to FSL Junga; ASI Sanjiv Kumar (PW-29) registered the F.I.R. and obtained a copy of the cheque;
Constable Vikram Singh (PW-30) took photographs of the spot;
HC Om Prakash (PW-31) recorded the entries in Police Station, Dhalli regarding the search of the vehicle bearing registration No. HP01A-2992 and departure of the police party; ASI Narveer Singh (PW-32) conducted the initial investigation; Dr. Pardeep Jalota (PW-33) medically examined the accused and obtained his gastric lavage; SI Laxman Kumar (PW-34) investigated the case. Dr. HR Rahi (PW-35) obtained the blood sample of the accused.
11. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that Kiran met him and he enquired from her as to where she was going, to which she replied that she was going to Rampur. He offered to drop her at Rampur. He stated that ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 11 he had come to Rampur from Bus Stand, Kalpa with the deceased and Kiran. Kiran and the deceased alighted from his vehicle. He was alone in the vehicle and crossed the barrier at about 5:00 p.m. .
He had gone to Shimla and had not absconded. He felt giddiness in the vehicle and nothing was known to him. His signatures were obtained on some papers. He was innocent and was falsely implicated. No defence was sought to be adduced by the accused.
12. The Learned Trial Court held that the prosecution had succeeded in establishing that the deceased was last seen with the accused.
The recovery of various articles and blood of the deceased near her house was also proved. The blood was found on the middle seat of the vehicle and on the clothes of the accused, which was consistent with the blood of the deceased. The statements made by the accused under Section 27 of the Indian Evidence Act did not lead to the discovery of any fact. Hence, they were inadmissible. The accused had not explained the circumstances proved by the prosecution. The circumstances can only lead to one inference that the accused had murdered the deceased. The fact that the accused had consumed poison was duly proved by the report of the FSL, in which organo phosphorous poison was found in the gastric lavage and blood of ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 12 the accused. The accused had destroyed the evidence, namely, the dead body of the deceased. Hence, the accused was convicted and sentenced as aforesaid.
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13. Being aggrieved from the judgment and order passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in convicting and sentencing the accused. The learned Trial Court had failed to notice that the deceased was bleeding on account of her menstrual cycle and she had purchased a sanitary napkin at Rampur. The prosecution failed to prove that clothes belonged to the accused as Kanta Kumari stated to have produced the clothes of the accused denied this fact. Hence, there was no evidence to connect the clothes with the accused. The disclosure statement made by the accused did not fall within the ambit of Section 27 of the Indian Evidence Act. The statements of the witnesses were contradictory.
The conduct of the witnesses was highly improbable. It is difficult to believe that the Chappal of the deceased could have been identified by her daughter and her relatives. There was no evidence to prove that Amila had died and in the absence of such evidence, the accused could not have been sentenced. There are material improvements in the testimonies of prosecution ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 13 witnesses. The material circumstances were not put to the accused while recording his statement under Section 313 of Cr.P.C., and these circumstances could not have been used against .
the accused. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
14. We have heard Mr. Ram Murti Bisht, learned counsel for the appellant and Mr. Pawan Kumar Nadda, learned Additional Advocate General for the respondent-State.
15 Mr. Ram Murti Bisht, learned counsel for the appellant has also filed written arguments, which have also been perused by us.
16. Mr. Ram Murti Bisht, learned counsel for the appellant submitted that the place of the incident is located near Auktong Hotel, Kalpa, which is a public place. It is highly improbable that she could have been killed without being noticed by some person.
The dead body was never recovered. The last-seen theory was not proved. The statement made by Kiran was hearsay and could not have been relied upon. The location of the mobile phone of the accused was shown at Duggaseri, which falsifies the prosecution's ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 14 version that the deceased and accused were present together at Badhal. The Vehicle Movement Register could not prove the involvement of the accused and there is no evidence that the .
deceased was travelling with the accused. Recovery of various articles on the road was not proved. There is no evidence that the seat cover examined in FSL, Junga, belonged to the vehicle of the accused. The accused took four passengers to Shimla and the learned Trial Court erred in holding that he had absconded. The findings recorded by the learned Trial Court are not correct. The chain of circumstances is not established. The accused could not have been called upon to explain the circumstances in the absence of proof of its case by the prosecution beyond a reasonable doubt.
Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
17. Mr. Pawan Kumar Nadda, learned Additional Advocate General, supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same. He submitted that the fact that the accused and deceased were last seen together is duly proved by the statement of Kiran and the entry made in the Vehicle Movement Register at the Police Post, Chaura. The report of the FSL, Junga, clearly shows that the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 15 middle seat cover and other articles were removed in the Laboratory;therefore, it is duly proved that the middle seat cover belonged to the vehicle of the accused. The DNA analysis also .
proves that the clothes of the accused had the blood of the deceased. The accused failed to provide any satisfactory explanation for the same. Hence, the learned Trial Court had rightly held that the accused had murdered the deceased and had thrown her dead body to screen himself from punishment. The presence of organic phosphorous poison in the gastric lavage and blood of the accused was not explained by the accused and the inference drawn by the learned Trial Court that the accused had consumed organo phosphorous poison to take away his life was based on the evidence. Therefore, he prayed that the appeal be dismissed.
18. We have given considerable thought to the submissions at the bar and have gone through the records carefully.
19. The prosecution has relied upon the deceased and the accused being last seen together, the presence of the blood of the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 16 deceased in the middle seat of the vehicle of the accused and on his pants to prove its case.
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20. Kiran (PW-26) stated that she and Amila went to Kalpa to buy Kerosene. He (accused) met her near the Depot. He had parked his vehicle (Tavera) near the Depot. He asked her as to where she was going. She replied him that she was going to Rampur. The accused said that he was also going to Rampur and would drop her at Rampur. Amila also said that she intended to visit Rampur; so both of them asked the accused to wait for them near the Ashoka Hotel. She and Amila went to their respective houses and accused-Surinder parked his vehicle near Ashoka Hotel. She (Kiran) had to get her SIM card recharged and asked the accused to get it done. The accused did so. She got ready and went towards Ashoka Hotel, where the accused had parked his vehicle. Amila had already reached the spot and was sitting in the vehicle of the accused. They went to Rekongpeo in the vehicle of the accused. She purchased her Chappal from Rekongpeo. She and Amila left for Rampur in the vehicle being driven by the accused.
They reached Rampur at 5-5:30 p.m. She was dropped at Old Bus Stand Rampur. Amila told her that she would return to the vehicle of the accused. Kiran met her husband and stayed with him in a ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 17 hotel during the night. She received a telephonic call from the mobile phone of the accused, who told her that he and Amila were returning and had reached Badhal. She also talked to Amila, who .
told her that they were having a meal at Badhal. She was telephonically informed by her sister Prem Lata that the whereabouts of Amila was not known and her Chappal and blood etc. were found by the police at some place at Kalpa. She identified Chappal (Ext.P-2), Basket (Ext.P-3), and an uprooted nail (Ext.P-7) as that of Amila. She also made a statement under Section 164 of Cr.P.C. She stated in her cross-examination that she had told the police that accused Surinder had brought two bottles of beer to Khawangi. One was consumed by her and another by Amila. She was not aware that Amila had purchased a sanitary pad at Rekongpeo. The police accompanied her to Ani Court but the police personnel were not present inside the Court at the time of recording her statement under Section 164 of Cr.P.C.
She denied that the accused had not called her and she had not talked to the accused and Amila. It takes about 3-4 hours to reach Kalpa from Badhal. She denied that she was making false statement in collusion with the police or that she had made a statement before the Magistrate at the instance of the police. The ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 18 accused had told her on 05.07.2015 that he was going to Shimla.
Her husband did not ask her as to why she had consumed beer.
She volunteered to say that she had taken mouth freshener and .
her husband could not judge that she had consumed beer. She enquired from Amila about her work at Rampur but Amila got agitated and declined to tell the purpose of her visit.
21. Her statement is corroborated by the previous statement (Ext.PW-26/A) made before the Magistrate under Section 164 of Cr.P.C. which contains the same version of the incident as was narrated by her in the Court.
22. The accused also admitted in his statement recorded under Section 313 of Cr. P.C. that he had met Kiran and that Kiran and Amila had boarded his vehicle. He also admitted that Kiran and Amila left for Rampur. He stated that both of them had got down at Rampur. Thus, the accused never disputed her statement that Kiran and Amila had boarded the vehicle of the accused and all of them went to Rampur. The only dispute is whether Amila had got down at Rampur or whether she remained with the accused after Kiran had got down from the vehicle.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 1923. HHC Hem Chand (PW-21), stated that he was posted at check post Chaura. He was discharging his duties from 6:00 p.m. to 10:00 p.m. At 8:40 p.m. a vehicle bearing registration No. .
HP01A-2992 driven by accused Surinder had crossed the barrier towards the Rekongpeo. A woman was travelling with the accused.
He could identify the lady if her photograph was shown to him.
The female was almost like the one shown in the photograph (Mark PA). He made the necessary entry in the register, the copy of which was Ext.PW-21/A. He denied in his cross-examination that accused Surinder Kumar had not crossed the barrier with a lady in his vehicle. He stated that the police did not get the accused or the photograph of the female-identified from him in any identification parade.
24. His testimony proves that the vehicle bearing registration HP01A-2992, driven by the accused had crossed the Chaura check post at 8:40 p.m. The Entry proved by him shows the vehicle number, name of the accused, description of the vehicle and one plus one indicating the number of persons present in the vehicle. These entries corroborate the version of this witness and the same has to be accepted as correct. The accused did not provide any explanation about the presence of the lady in the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 20 vehicle rather he stated that Amila had got down from the vehicle at Rampur along with Kiran, which is falsified by the entry made by this witness. This witness identified the lady with the help of a .
photograph on the proclamation issued by the Incharge Police Station, Rekongpeo regarding the missing of Amila (Mark PA), which contains the description of Amila and her photograph. It was never suggested to this witness that the photograph on Mark PA is not that of Amila. Hence, his testimony establishes that Amila was travelling with the accused in his vehicle and had crossed the police post in Chaura.
25. Kiran (PW-26) stated that the accused had called her at 8:30 p.m. and told her that he and Amila were returning and had reached Badhal. She also had a telephone conversation with Amila who told her that she (Amila) was having a meal at Badhal.
26. Devinder Verma (PW-7) proved the call detail records, location and billing address of different mobile numbers. He proved the copies (Ext.PW-7/B) and issued a certificate (Ext.PW-7/A). This witness was not cross-examined at all,which means that his testimony regarding the call detail records and billing address was not challenged by the accused by cross-
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 21examining him. It was laid down by the Hon'ble Supreme Court in State of Uttar Pradesh Versus Nahar Singh 1998 (3) SCC 561 that where the testimony of a witness is not challenged in the cross-
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examination, the same cannot be challenged during the arguments. This position was reiterated in Arvind Singh Versus State of Maharashtra AIR 2020 (SC) 2451 and it was held:
[57] The House of Lords in a judgment reported as Browne v.
Dunn 1894 6 Reports 67 (HL) considered the principles of appreciation of evidence. Lord Chancellor Herschell, held that it is absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness if not speaking the truth on a particular point, direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged. It was held as under:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case but is ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 22 essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that cross- examination of a witness which errs in the direction of .
excess may be far more fair to him than to leave him without cross-examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling."
[58] Lord Halsbury, in a separate but concurring opinion, held as under:
"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
[59] This Court in a judgment reported as State of U.P. v. Nahar Singh, 1998 3 SCC 561, quoted from Browne to hold that in the absence of cross-examination on the explanation of the delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under:-
"13. It may be noted here that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of the delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 23 Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
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(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
[60] This Court in a judgment reported as Muddasani Venkata Narsaiah (Dead) through LRs. v. MuddasaniSarojana, 2016 (12) SCC 288 laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. It was held as under:
"15. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to the factum of execution of the sale deed, PW 1 and PW 2 have not been cross-examined as to the factum of execution of the sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's version in the cross-examination of the opponent. The effect of non-cross-examination is that the statement of the witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, 1963 AIR(SC) 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. 1958 AIR(P&H) 440.::: Downloaded on - 02/05/2024 20:35:00 :::CIS 24
16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1945 AIR(Nag) 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The .
High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian 1961 AIR(Cal) 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in KuwarlalAmritlal v. RekhlalKoduram 1950 AIR(Nag) 83 has laid down that when attestation is not specifically challenged and the witness is not cross- examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of the Patna High Court in Karnidan Sarda v. Sailaja Kanta Mitra 1940 AIR(Pat) 683 has laid down that it cannot be too strongly emphasised that the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the High Court has gravely erred in law in reversing the findings of the first appellate court as to the factum of execution of the sale deed in favour of the plaintiff."
27. Testimony of HHC Hem Chand (PW-21) shows that a vehicle bearing registration No. HP01A-2992, driven by accused Surinder had crossed Check Post Chaura towards Recokong Peo with the deceased. Testimony of Kiran (PW-26), shows that accused had called her and told that he and the deceased were ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 25 taking meal at Badhal and this fact was confirmed by Amila.
Although the Kiran has mentioned the time of call as 8:30 p.m. based upon her estimation of time. However, the precise time can .
be deciphered from the call detail record, which shows that the call was made 8:56 p.m. The call detail record of deceased Amila also shows that she was present at Tapri at 11:11:35 p.m. Call detail records of the accused and deceased show that they were present near Duggaseri between 8:31:10 p.m. to 8:50:56 p.m. This evidence establishes the prosecution version that accused and deceased were together on the night of 5th July, 2015.
28. It was submitted that the tower location of Duggaseri is mentioned in the call detail records and Duggaseri is located far away from Badhal, where the accused and deceased were stated to be present. This submission is not acceptable. There is no evidence of the distance between Badhal and Duggaseri. There is nothing on record to show that it is not possible to receive the signal of the tower located at Duggaseri by a mobile phone located at Badhal. Therefore, it cannot be accepted that the tower location at Duggaseri will make the fact that the accused and deceased were at Badhal highly improbable.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 2629. It was submitted that it was for the prosecution to prove that Duggaseri and Badhal are located in the same place.
This submission is not acceptable. The defence relied upon the .
tower location at Duggaseri to impeach the statement of the witness; therefore, it was for the defence to establish that a person present at Badhal could not receive the signal from a tower located at Duggaseri.
30. It was submitted that the Court had not put the question to the accused while recording his statement under Section 313 of Cr.P.C. regarding the contents of the call detail records and this evidence is inadmissible. Reliance was placed upon the judgments of the Hon'ble Supreme Court in Sharad Birdhi Chand Sarda vs State of Maharashtra 1984(4) SCC 116 and Maheshwar Tigga vs. State of Jharkhand 2020(10) SCC 108, in support of his submission. This submission cannot be accepted.
31. The learned Trial Court has specifically put question No. 43 regarding the SIM cards, call detail records (Ext.PW-7/B), and certificate (Ext.PW-7/A). Thus, the documents were specifically put to the accused.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 2732. It was held in State (Delhi Admn.) vs. Dharampal(2001) 10 SCC 372, that where a document was put to the accused, he cannot claim the acquittal on the ground that the contents of the .
documents were not put to him. It was observed:
"15. We further find that in all these cases, a copy of the certificate of the Director, Central Food Laboratory had been supplied to the accused. They were thus aware of the contents of the certificate. It has to be seen that under the Prevention of Food Adulteration Act the prosecution is based upon the contents of either the report of the Public Analyst or the certificate of the Director of Central Food Laboratory. During their examination, under Section 313 CrPC questions pertaining to the certificate were put to the accused. The explanation of the accused, in respect of the certificate, had been called for. In our view in such cases, it is enough if the attention of the accused is brought to the report or the certificate, as the case may be. It is not necessary that the contents of the report be also put to the accused.
16. Let us now see what were the questions put to the accused in these cases. We have been shown the statement of the accused, under Section 313 CrPC in only two of the appeals. However, it is admitted that in other cases also the questions were similar.
17. In Criminal Appeal No. 1076 of 2001 [arising out of SLP (Crl.) No. 1617 of 2001] The question put to the accused and the answer obtained from him are as follows:
"Q: It is further in evidence that on receipt of a copy of PA's report and intimation letter, you exercised your right under Section 13(2) and Director, CFL vide his certificate Ext. PX declared the sample to be adulterated. What have you to say?::: Downloaded on - 02/05/2024 20:35:00 :::CIS 28
Ans: It is a matter of record."
18. In Criminal Appeal No. 1078 of 2001 [arising out of SLP (Crl.) No. 2437 of 2001] The question put and the answer given is as follows:
.
"Q: It is further in evidence that an intimation letter along with a copy of PA's report was served on you IO the court and you exercised your right under Section 12(2) of the PFA Act and certificate of Director is Ext. PX. What have you to say?
Ans. The certificate is erroneous and it is the result of the negligence committed by the FI in the sample proceeding."
Thus, it is to be seen that the questions clearly indicated that what was being put to the accused were the contents of the certificate. It is also to be seen that the accused clearly understood that what was being put to them was the contents of the certificate. The accused Ashwani Kumar [in Criminal Appeal No. 1078 of 2001 {arising out of SLP (Crl.) No. 2437 of 2001}] in fact answered that the certificate was erroneous and was a result of negligence committed by the Food Inspector in the sample proceedings. Similarly accused Dharampal [in Criminal Appeal No. 1076 of 2001 {arising out of SLP (Crl.) No. 1617 of 2001}] answered that the report was a matter of record. The accused gave their answers to the contents of the certificate. Clearly, no prejudice had been caused to them. Before us also it could not be shown that any prejudice had been caused to them. This aspect of the matter was completely overlooked by both the Sessions Judge and the High Court. In our view, neither the judgment of the Sessions Judge nor the reasoning of the High Court on this point can be sustained.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 2933. Since in the present case also, the documents were put to the accused; therefore, the submission that the contents were not put to the accused and the accused is entitled to the acquittal is .
not acceptable.
34. In any case, It was laid down by Hon'ble Supreme Court in Dharampal's case (supra), that failure to put the circumstances to the accused will not result in the acquittal unless r to prejudice is shown. It was observed:-
"13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him.
14. This being the law, in our view, both the Sessions Judge and the High Court were wrong in concluding that the omission to put the contents of the certificate of the Director, Central Food Laboratory, could only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report not being put to him. Even otherwise, it was the duty of the Sessions Judge and/or the High Court, if they found that some vital circumstance had not been put to the accused, to put those questions to the counsel for the accused and ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 30 get the answers of the accused. If the accused could not give any plausible or reasonable explanation it would have to be assumed that there was no explanation. Both the Sessions Judge and the High Court have overlooked .
this position of law and failed to perform their duties and thereby wrongly acquitted the accused."
35. This position was reiterated in Hemudan Nanbha Gadhvi v. State of Gujarat, (2019) 17 SCC 523: 2018 SCC OnLine SC 1688 wherein it was observed:
"13. The contention on behalf of the appellant that the serological report was not put to him by the court under Section 313 CrPC and therefore, he has been prejudiced in his defence, has been raised for the first time before this Court. The serological report being available, it was a failure on the part of the trial court to bring it to the attention of the appellant. The prosecution cannot be said to be guilty of not adducing or suppressing any evidence. In view of the nature of the evidence available in the present case, as discussed hereinbefore, we are of the opinion that no prejudice can be said to have been caused to the appellant for that reason, as held in Nar Singh v. State of Haryana [Nar Singh v. State of Haryana, (2015) 1 SCC 496:
(2015) 1 SCC (Cri) 699]: (SCC pp. 511-12, paras 32-33) "32. ... When there is omission to put material evidence to the accused in the course of examination under Section 313 CrPC, the prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one-
sided. It has many facets and we have to draw a balance between conflicting rights and duties.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 3133. Coming to the facts of this case, the FSL report (Ext. P-12) was relied upon both by the trial court as well as by the High Court [Nar Singh v. State of Haryana, 2012 SCC OnLine P&H 24505]. The objection as to the defective .
Section 313 CrPC statement has not been raised in the trial court or in the High Court and the omission to put the question under Section 313 CrPC, and prejudice caused to the accused is raised before this Court for the first time. It was brought to our notice that the appellant is in custody for about eight years. While the right of the accused to speedy trial is a valuable one, the Court has to subserve the interest of justice keeping in view the right of the victim's family and society at large."
36. Thus, an omission to bring the attention of the accused to inculpatory material does not ipso facto vitiate the proceedings.
The accused must show the failure of justice occasioned by such omission. Further, in the event of inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to explain the circumstances established against the accused but not put to him.
37. In the present case, the accused has not shown any prejudice and he cannot take advantage of the fact that the contents of the documents were not put to him.
38. It was submitted that the statement made by the deceased that she was with the accused at Badhal is hearsay in ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 32 nature and the learned Trial Court erred in relying upon the same.
This submission is not acceptable. The statement related to the circumstances resulting in the death of Amila and the same is .
clearly admissible under Section 32 of the Indian Evidence Act. In Pakala Narayana Swami v. King-Emperor (1938-39) 66 IA 66 = 1939 SCC OnLine PC 1 the deceased made a statement that he was going to Behrampur as the wife of the accused had written a letter to him asking him to receive payment. It was contended that the statement is not admissible as the deceased was not under any apprehension of death when he had made the statement.
Repelling this contention, the judicial committee of the Privy Council observed:
"A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, and that the "circumstances" can only include the acts done When and where the death was caused. Their Lordships are of the opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 33 to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether .
the person was unknown, or was not the person accused.
Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence"
which includes evidence of all relevant facts. It is on the other hand narrower than "res gestæ." Circumstances must have some proximate relation to the actual occurrence:
though for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose.
It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that "the cause of [the declarant's] death comes into question." In the present case, the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March: and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that he was setting out to the place where the accused lived and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted."
39. This position was reiterated in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 wherein it was observed:
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 34"18. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English Law where only the statements which directly relate to the .
cause of death are admissible. The second part of clause (1) of Section 32 viz. "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State [AIR 1960 Punj 310: 1960 Cri LJ 851] where the following observations were made:
"clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead,... are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question... It is well settled by now that there is a difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under the expectation of death. In English Law, the declaration should have been made under the sense of impending death whereas under Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death."
19. And in the case of State v. Kanchan Singh [AIR 1954 All 153: 1953 All LJ 615: 1954 Cri LJ 264] it was observed thus:
"The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act."::: Downloaded on - 02/05/2024 20:35:00 :::CIS 35
20. In these circumstances, therefore, it is futile to refer to English cases on the subject.
21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, .
the following propositions emerge:
(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 36 evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-
examination is taken by the solemnity and sanctity of .
oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, be admissible. The distance of time alone in such cases would not make the statement irrelevant.
40. Thus, it is not essential that the deceased should have been under the apprehension of the death at the time of making the statement and it is sufficient that the statement pertained to the circumstances relating to the death. In the present case, the deceased Amila was found missing after making the statement and the statement pertained to the circumstances related to her death;
hence, the same is admissible in evidence and it was rightly relied upon by the learned Trial Court.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 3741. Therefore, it was duly proved by the evidence on record that the accused and the deceased Amila were last seen together before Amila was found missing.
.
42. The prosecution also relied upon the presence of blood on the middle seat cover and the fact that the DNA taken from the same corresponded to the blood of the deceased. It was submitted that there is no evidence of the fact that the seat cover was taken accepted.
r to from the vehicle of the accused. This submission cannot be
43. SI Laxman Kumar (PW34) stated that the vehicle of the accused was taken to FSL, Junga where it was inspected by FSL experts. Santi Lal (PW-6), stated that he drove the vehicle of the accused from Shimla to FSL Junga, where it was examined by FSL experts. He denied in his cross-examination that the vehicle had met with an accident when it was being taken to FSL Junga. He volunteered to say the vehicle met with an accident when it was taken to Rekongpeo from FSL, Junga. Thus, his testimony that he had driven the vehicle to FSL, Shimla, has remained unchallenged and has to be accepted as correct.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 3844. ASI Mehar Chand (PW-19) stated that he had deposited the articles and the vehicle in FSL, Junga and the officials of FSL Junga had taken out the seat cover of the middle seat of the vehicle, .
an iron rod and blanket lying inthe vehicle. They handed over the vehicle to him. He duly identified the seat cover and the blanket.
He denied in his cross-examination that the articles were not in the vehicle or that he was deposing falsely. There is nothing in his cross-examination to show that he is making a false statement. A mere denied suggestion does not amount any proof and is insufficient to discard his testimony.
45. The report of the FSL (Ext.PX-2) shows that one white-coloured Tavera vehicle bearing registration No. HP01A-2992 with the key was received through ASI Mehar Chand. The exhibits(marked as Ext. 1a to Ext.1i) were taken into possession from the vehicle for further examination. Ext.1a is one dark grey and light brown coloured long middle seat cover of the vehicle. DNA examination was conducted and a report (Ext.PX-3) was issued, in which it was mentioned that the DNA profile obtained from Ext.1a one long seat cover of the vehicle bearing Registration No. HP01A-2992 and the DNA profile obtained from Roshni Devi were consistent with the biological mother of the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 39 daughter. Thus, it is duly proved by the report of the FSL that the DNA from the blood found on the middle seat of the vehicle matched with the DNA of Roshni Devi, daughter of the deceased .
and was consistent with the biological mother of Roshni Devi. This report shows that the blood of Amila was found in the middle seat of the vehicle.
46. It was submitted in the memorandum of appeal that the recovery of blood from the middle seat cover would not amount to much because Amila was menstruating. However, there is no such evidence. Kiran denied it for want of knowledge that Amila had purchased sanitary pads. This question was not put to any other witnesses. Even the accused had not stated this fact in his statement recorded under Section 313 of Cr.P.C. Therefore, there is no evidence of the fact that the blood detected on the middle seat cover was found because Amila was menstruating.
47. It was submitted that the report of FSL is admissible only regarding the result of analysis and cannot be used for concluding that a blood-stained middle seat cover was taken from the vehicle. This submission cannot be accepted. Section 293 of Cr.P.C. reads that any document purporting to be a report under the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 40 hand of a Government Scientific Expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding .
under this Code, may be used as evidence. It was laid down by this Court in Gajanand vs. State of Himachal Pradesh(07.06.2001 - HPHC):
MANU/HP/0147/2001= 2001 (3) Shim.L.C. 54 that the whole report submitted by the Expert will be admissible under section 293 of Cr.P.C. It was observed:
"13. Now the question arises whether the substance of the result of the actual examination or analysis which is given in the second part of the document in question, is only 'purported to be report'? The answer is in negative as the second part of the document cannot be read in isolation from the first and third part. The first part contains the necessary particulars of the case to which the matter or thing sent for examination or analysis pertains, in the absence of which the second part cannot be connected with the case. Similarly, without the third part, the second part will remain in the records of the Government Scientific Expert and will not be conveyed to the quarter concerned.
The examination or analysis of the matter or thing submitted to a named Government Scientific Expert may, in fact, be examined or analysed by any Scientist concerned in the laboratory but the substance of the result, which is 'purported to be report' is to be conveyed by the Government Scientific Expert to whom the matter or thing has been submitted for examination or analysis, as it is the said authority which is entrusted with the responsibility to authenticate the substance of the result of the examination or analysis by putting his signatures thereon. Had the intention of the legislature been that the named ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 41 Government Scientific Expert to whom the matter or thing is submitted for examination or analysis is to conduct the examination or analysis himself, it would not have used the words 'document purporting to be report under the hand of .
Government Scientific Expert', instead it would have vised the words 'the report of examination or analysis of named Government Scientific Expert. By using the word 'purporting' the intention of the legislature is made clear that examination or analysis may not be by the named Government Scientific Expert.
14. This intention is further corroborated by the words 'under the hand of Government Scientific Expert' which means that the result of the examination or analysis may be conducted by any Scientist in the laboratory but its substance should be conveyed under the hand of named Government Scientific Expert whereby the report will become his responsibility. We have no hesitation to hold that by handing over the responsibility to an authority which is very high in the hierarchy of the laboratory, the legislature intended that before putting the signatures on the substance of the examination or analysis the named Government Scientific Expert would satisfy himself that what is being conveyed under his signatures was conducted properly as per the set norms and rules knowing well that by appending his signatures on the document purported to be the report, it becomes per se admissible. Otherwise, without the signatures of the named Government Scientific Expert the substance of the report of the examination or analysis is required to be proved in accordance with law by examining the Scientist as a witness who conducted the examination or analysis.
xxxxx
22. In view of above discussion we have no hesitation to hold that all three parts make the document in question a document 'purporting to be report' under the hand of the named Government Scientific Expert as mentioned in Sub- section (4) of Section 293 Code of Criminal Procedure We may also point out if the whole document consisting of all ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 42 the three parts is not considered 'purporting to be a report', number of complications and difficulties would arise. If only the second part is 'purporting to be a report', the first and third parts need to be proved in accordance with law by .
calling their authors or the persons who are in the know of the contents of first and third part and the very purpose of making the document purporting to be a report' per se admissible will be defeated. In this respect the judgments of Punjab and Haryana High Court in State of Punjab v. 'Nachhattar Singh MANU/PH/0309/1982: 1982 Cri. L.J. 1197and Bhagwan Das v. State of Punjab MANU/PH/0318/1982: 1982 Cri. L.J. 2138, are of great help."
48. In a separate but concurring opinion, it was held:
"14. Thus, the purpose for which Sections 292 and 293 of the Code were enacted is clear. The Legislature intended to save the Government Scientific Experts from personal presence in the Court. It is for this reason that their reports were made admissible without formal proof with the salutary safeguard that the trial Court may examine any such expert as to the subject matter of his report. I have already noticed that what is made admissible in evidence is the "entire document" which includes the details of the sample sent for the purpose of analysis. Bereft of these details and endorsement, the report in itself cannot be linked to any particular case and will be of no use. As noticed by My Lord Kamlesh Sharma, J., the expression "document" leads to the inference, in the context of Section 293 of the Code, that it is not only the result part of the document but all that is stated in the entire document. The document in its entirety is made admissible in evidence without its formal proof. In my view, any other interpretation of this provision would defeat the intention of the Legislature viz. Government Scientific Experts may not be required to attend the Court to depose about the result of the analysis of the substance which might be sent to them for such purpose in the discharge of their duties. If the report part alone is to be admissible, then ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 43 the concerned Expert will have to be summoned in the Court in each case, notwithstanding the provisions of Section 293 of the Code, to depose, for example, about the safe receipt of the sample or substance, reference .
number of the police docket to connect the material received by them, for examination, with a particular case and so on I am in respectful agreement with the view taken by a Division Bench of the Punjab and Haryana High Court in State of Punjab v. Nachhattar Singh MANU/PH/0309/1982: 1982 Cri LJ 1197 and Bhagwan Dass v. State of Punjab MANU/PH/0318/1982:
1982 Cri. LJ 2138, particularly the following observations in Bhagwan Dass:
The language does not seem to confine it to the opinion of the expert stricto sensu or to any artificially constricted meaning of his 'Report'.
Indeed, the statute talks of any document purporting to be a report under the hand of a Government Scientific Expert. In legal terminology, the word 'document' is one of larger con-notation and what is more, the Section brings within its ambit any such document purporting to be such a report. It would thus appear that there is no warrant for any artificial constriction or narrowing down the ambit of the report visualised under Section 293 of the Code to only that part thereof which pertains to the opinion of the Chemical Examiner and excluding all the rest there from.
15. I am of the considered opinion that the entire document Exhibit PA, including the endorsement of the Assistant Director of the Central Forensic Science Laboratory, Chandigarh is admissible in evidence without its formal proof. Any hypertechnical interpretation would defeat the object and purpose sought to be achieved by the provision of Section 293 of the Code and shall lead to mischief. It will result in unmerited acquittals. the Supreme Court in P.C. Purushothama Reddiar v. S. Perumal AIR 1972 SCC 608, observed in no uncertain terms that once a document is ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 44 properly admitted and marked as an exhibit without any objection from a party, then it is not open to a party to object to the admissibility of those documents at the appellate stage."
.
49. In the present case, the vehicle was submitted to the Expert for forensic examination. The Expert had taken the middle seat cover; thus, taking the middle seat cover and report of its analysis will form part of the report referred to in Section 293 of Cr.P.C. Therefore, it is difficult to agree that the report will refer only to the result of the analysis and not to the steps taken before the same.
50. Thus, it was duly proved that the blood of the deceased was found on the middle seat of the vehicle of the accused. Again, the accused did not provide any explanation for the same.
51. SI Laxman (PW-34) stated that Kanta Kumari wife of the accused handed over the clothes of the accused and his driving licence and he seized all the articles vide memo (Ext.PW10/A). It was signed by Kanta Kumari and attested by the witnesses. He denied in his cross-examination that Kanta Kumari had not handed over the clothes of the accused and his driving licence. He obtained the signature of Kanta Kumari by way of deception.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 45Nothing was suggested to him as to why he should resort to the deception to obtain the signatures of Kanta. A denied suggestion does not amount to any proof and his testimony that Kanta Kumai .
had handed over the clothes to him has to be accepted as correct.
52. Kanta Kumari (PW-10) denied that the clothes of her husband were handed over to her by the official of the hospital and she had handed them over to the police. She was permitted to cross-examine. She denied the previous statement recorded by the police; however, she admitted her signature on the memo (Ext.PW-
10/A). She refused to identify the clothes as having been handed over by her.
53. It was submitted that the statement of this witness makes the prosecution case suspect that she had handed over the clothes to the police. This submission cannot be accepted. She is the wife of the accused and has a reason to support him. She has been contradicted with the previous statement and her credit has been impeached. She also admitted her signature on the memo but did not provide any valid explanation for putting her signature on the memo. Therefore, her testimony cannot be used for discarding the prosecution case.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 4654. Santi Lal (PW-6) stated that police had taken into possession a blood sample and MLC of the accused, a box of poison, gastric lavage of the accused and documents of the vehicle bearing .
registration no. HP01A-2992 and some clothes regarding which Memo (Ext.PW-6/A) was prepared. It was not suggested to him in the cross-examination that the clothes were not produced in his presence. Hence, this part of his testimony has remained unrebutted and it will corroborate the version of SI Laxman Kumar that the clothes of the accused were handed over to the police.
55. Jitender Kumar (PW-12) has not stated anything about clothes; however, he has also not stated that clothes were not produced in his presence. Hence, the principle, "absence of evidence is not evidence of absence" and will apply to him and his testimony cannot be used for discarding the prosecution regarding the recovery of clothes.
56. The clothes were sent to FSL, Junga and the result of analysis (Ext.PX-3) shows that the DNA profile obtained from the pants of accused-Surinder Kumar was consistent with the DNA profile obtained from Roshni Devi as those of her biological mother and offspring (daughter). Thus, this report also shows that ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 47 the blood of the deceased was found on the clothes of the accused.
Again, no explanation has been provided for the same. It was laid down by the Hon'ble Supreme Court in Balvir Singh v. State of .
Uttarakhand, 2023 SCC OnLine SC 1261 that when the circumstances have been proved on record, the burden shifts to the accused to explain them; especially, the facts which are within the knowledge of the accused. It was observed: -
43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts, especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:
"All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence."
44. To recapitulate the foregoing: What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 48 own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the .
prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact, especially within his knowledge and which he must prove (see Professor GlanvilleWilliams--Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion-- para 527 negative averments and para 528--"require affirmative counter-evidence" at page 438 and foil, of Kenny's outlines of Criminal Law, 17thEdn. 1958.
45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveller himself: see Section 106 of the Indian Evidence Act, illustrations (a) and (b).
46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 49 convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of .
the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12thEdn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State, 343 US 790 (1952) : 96 L.Ed. 1302, Raffel v. U.S., 271 US 494 (1926) : 70 L.Ed. 1054.
57. It was further held that the burden will shift when prima facie evidence is led by the prosecution. The meaning of prima facie case was explained as under:
WHAT IS A "PRIMA FACIE CASE" IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?
47. The Latin expression prima facie means "at first sight", "at first view", or "based on first impression". According, to Webster's Third International Dictionary (1961 Edn.), "prima facie case" means a case established by "prima facie evidence" which in turn means "evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted". In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 50 the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need .
for a response by other parties.
48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death.
49. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts unless the truth of such inference is disproved.
50. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37 respectively as under:
"36. In this context, we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
(Emphasis supplied)
51. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in para 24 as under:
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 51"24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said "he is still alive and should be .
killed". The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there was every justification for drawing the inference that they had murdered the boy.
Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra."
(Emphasis supplied)
52. In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in the company of her husband i.e., the appellant-convict at a point in time when something went wrong with her health and therefore, in such circumstances, the appellant-convict alone knew what happened to her until she was with him.
58. In the present case the dead body of Amila was not found. Mr. Ram Murti Bisht, learned counsel for the appellant-
accused highlighted this aspect and submitted that in the absence ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 52 of the dead body, the offence of the murder cannot be proved.
This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Ramjee Rai v. State of Bihar(2006) 13 SCC .
229 that corpus delicti need not be proved in a case of murder and where strong circumstantial evidence exists, the conviction can be recorded even in the absence of a dead body.It was observed:
"22. It is now a trite law that corpus delicti need not be proved. The discovery of the dead body is a rule of caution and not of law. In the event, that there exists strong circumstantial evidence, a judgment of conviction can be recorded even in the absence of the dead body. (See Rama Nand v. State of H.P. [(1981) 1 SCC 511: 1981 SCC (Cri) 197])
23. In Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311: 2001 SCC (Cri) 1546] this Court noticed the decision in Rama Nand [(1981) 1 SCC 511: 1981 SCC (Cri) 197] and opined: (SCC p. 319, para 23) "23. There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti, there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder."
59. This position was reiterated in Sanjay Rajak v. State of Bihar, (2019) 12 SCC 552, wherein it was observed: -
"9. It is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delicti will ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 53 render the prosecution case doubtful entitling the accused to acquittal on the benefit of the doubt. It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based .
on reasonability and probability based on normal human prudence and behaviour. In the facts and circumstances of the present case, the failure of the police to recover the dead body is not much of a consequence in the absence of any explanation by the appellant both with regard to the victim last being seen with him coupled with the recovery from his house of the belongings of the deceased. Rama Nand v. State of H.P. [Rama Nand v. State of H.P., (1981) 1 SCC 511: 1981 SCC (Cri) 197], was a case of circumstantial evidence where the corpus delicti was not found. This Court upholding the conviction observed: (SCC pp. 522-23, para 28) "28. ... But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or both. But where the fact of corpus delicti i.e. "homicidal death" is sought to be established by circumstantial evidence alone, the ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 54 circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as .
requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by rthe accused concerned."
10.Sevaka Perumal v. State of T.N. [Sevaka Perumal v. State of T.N., (1991) 3 SCC 471: 1991 SCC (Cri) 724], was also a case where the corpus delicti was not found yet conviction was upheld observing: (SCC pp. 476-77, para 5) "5. ... In a trial for murder, it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be able to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into a flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed, etc. and would afford complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 55 offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death, was committed and it must be proved by direct or circumstantial evidence, .
although the dead body may not be traced."
60. Thus, the failure to prove corpus delicti cannot result in the acquittal of the accused.The Court has to see whether there is reliable and acceptable evidence that murder had taken place and if it is found to be so, the Court can record the conviction.
61. The daughter of the victim stated that she never heard about the deceased. The deceased was found missing after she had gone with the accused. Her blood was found on the clothes of the accused and in the vehicle of the accused; therefore, the only inference which can be drawn from these circumstances is that the accused had murdered the deceased, especially in the absence of any explanation from the accused regarding the presence of the blood on his clothes and in his vehicle.
62. It was submitted that the possibility of some other person taking away the deceased cannot be ruled out; however, there is no evidence that any person had met the deceased. The accused never said that he had dropped the deceased near her home where her clothes were found to lead to such an inference.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 56It is merely a hypothesis not supported by any evidence and does not constitute a reasonable doubt. Prof. Glanville Williams explained the degree of reasonable doubt in The Hamlyn Lectures .
seventh series, The Proof of Guilt (Stevens & Sons Ltd. 1955) on page 133 as under: -
"It is then a question of degree, some risk of convicting an innocent person must be run. What this means in terms of the burden of proof is that a case need not be proved beyond all doubts. The evidence of crime against a person may be overwhelming and yet it may be possible to conjecture a series of extraordinary circumstances that would be consistent with his innocence by supposing that some stranger of whose existence there is no evidence, interposed at a crucial moment and committed the crime when all the evidence points to the fact that accused was alone on the spot, or by supposing in a charge of murder that the deceased died of heart failure the moment before the bullet entered his body. The fact these unlikely contingencies do sometimes occur so that by neglecting them there is on rare occasions a miscarriage of justice cannot be held against the administration of law which is compelled to run this risk."
63. It was submitted that the accused cannot be convicted with the aid of Section 106 of the Indian Evidence Act and the burden will not shift to the accused unless conclusive evidence is led. Reliance was placed upon the judgments of the Hon'ble Supreme Court in Gargi vs State of Haryana (2019) 9 SCC 738 and Nagendra Sah vs State of Bihar (2021) 10 SCC 725 in support of this submission. In view of the exhaustive judgment of the Hon'ble ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 57 Supreme Court in Balveer Singh (supra) which is later in time, it is not necessary to discuss the cited judgments.
.
64. The learned Trial Court has also relied upon the recovery of blood-stained clothes and soil, chappal (Ext.P-2) from the roadside. This circumstance does not connect the accused with the commission of the crime because the circumstance, even if proved, will only show that Amila was present at the place where her articles were found.
65. to It was submitted that this circumstance was not proved because Ashok Kumar (PW-3), who is stated to have seen those articles has not supported the prosecution case.
66. Ashok Kumar (PW-3) stated that he was in the habit of morning walk towards Kalpa. He had not noticed any basket, pair of chappals or some blood lying on the road near Vanvihar Ganghut. He was permitted to be cross-examined. He denied that he had noticed a basket, Chappal and some blood lying on the road near Vanvihar Ganghut. He was contracted with his previous statement where this fact was recorded. He has contradicted his previous statement recorded by the police; therefore, he is shown to have made two inconsistent statements at two different points ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 58 in time. His credit has been impeached under Section 155(4) of the Indian Evidence Act and no reliance can be placed on his testimony.
.
67. Bhag Chand (PW-4) stated that he had gone for a morning walk on 06.07. 2017, as per his usual routine. He noticed a pair of female Chappals, an empty plastic bottle, two empty plastic bottles, two empty plastic carry bags, and a broken earring lying on the road at a distance of 100 meters ahead of Auktong Hotel. He r to noticed imprints of the tyre of the vehicle about 5-10 meters ahead and a female jacket and blood on a portion of the road.
informed the police. The police took him and Up-Pardhan Ranjeet He Singh to the spot and seized these articles. The police also seized a piece of nail and lifted a blood sample from the spot. The police prepared separate parcels which were sealed with the seal impression "H". A Memo (Ext.PW/A) was prepared. He identified the parcels and various articles. He stated in his cross-
examination that he had met other morning walkers. He does not carry his mobile phone with him while going for a morning walk.
He denied that two residential houses and the old residence of Deputy Commissioner, Kinnaur were located adjacent to the spot.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 5968. It is apparent from his statement that he has not been cross-examined regarding the recovery of various articles, therefore, this part of his testimony has gone unrebutted and the .
same has to be accepted as correct. Thus, no error was committed by the learned Trial Court in relying upon his testimony.
69. Narender Kumar (PW-2), stated that he had accompanied the police to Boktu and corrected to say that he had accompanied the police to a place near Rest House Kalpa leading to village Rogi. A female basket, a pair of female Chappals, a broken earring and a broken nail were found lying on the road. Roshani and Hira Chand also accompanied the police. Roshni identified the articles, as belonging to her mother Amila. He stated in his cross-
examination that the deceased was his sister-in-law and she was residing separately. Rest house is located at a distance of 1-2 km from his house and Boktu is at a distance of 5-6 km from Rest House Kalpa. They had visited Boktu on 06.07.2016 at 10:00 a.m.
70. It was submitted that this witness mentioned the place Boktu, which makes the recovery from the place near Rest House Kalpa suspect. It is correct that he had mentioned the place Boktu initially but thereafter he corrected himself to say that he had ::: Downloaded on - 02/05/2024 20:35:00 :::CIS 60 visited the place near Rest House Kalpa. He stated in his examination-in-chief that the accused had taken him and the police to Kerosene Depot, Kalpa and thereafter Boktu-- a place one .
kilometre short of Khara. This shows that he had visited Boktu with the police and the accused. Thus, mentioning the place Boktu could have been due to some confusion, which was subsequently corrected by him.
71. It has been found out that the deceased Amila and the accused were last seen together. The deceased was missing since she was last seen with the accused. Her blood stains were found on the clothes of the accused and the middle seat of the vehicle of the accused. Her dead body could not be recovered. Thus, the burden shifted upon the accused to explain what happened to the dead body of the accused but the accused failed to explain the circumstances proved against him. Therefore, the learned Trial Court was justified in drawing the inference that the accused had secreted the dead body to save himself from legal punishment and he was rightly held guilty by the learned Trial Court for the commission of an offence punishable under Section 201 of IPC.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 6172. It was submitted that the chain of circumstances should be complete and they should not lead to any other inference except the guilt of the accused. Reliance was placed upon the .
judgments of the Hon'ble Supreme Court in Gargi (supra), Ram Pratap v. State of Haryana, (2023) 2 SCC 345, Sharad Birdi Chand (supra) and Navaneethakrishnan v. State, (2018) 16 SCC 161 in support of this submission. There can be no dispute with the proposition of law that the prosecution is required to prove the complete chain of circumstances and they should lead to no other inference except the guilt of the accused. In the present case, the circumstances that the accused and the deceased were last seen together, the blood of the deceased was found on the clothes of the accused and in his vehicle and the deceased was not heard of by any person thereafter can only lead to an inference that the accused had murdered the deceased and destroyed her dead body, especially in absence of any explanation regarding the circumstances which transpired after the accused and deceased were together. Hence, no advantage can be derived from these judgments.
73. Therefore, the learned Trial Court had rightly convicted the accused of the commission of offences punishable under Sections 302 of IPC and 201 of IPC.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 6274. The accused was admitted to the Hospital; Dr Pardeep Jalota (PW-33) found that the accused smelled of organo phosphorous poison. Gastric lavage of the accused was performed.
.
His blood sample was preserved. This part of his testimony was not challenged and it was only suggested that police had not produced any container containing alcohol. Gastric lavage and blood samples were sent to FSL, Junga for analysis. Report (Ext. PX) was issued, in which, it was mentioned that traces of organo phosphorous insecticide were detected in the blood sample and gastric lavage of the accused. This report proves that the accused had consumed organo phosphorous insecticide. Since the act of the accused endangered his life, therefore, the learned Trial Court had rightly held the accused guilty of the commission of an offence punishable under Section 309 of IPC.
75. It was submitted that some person might have forcibly administered the insecticide to the accused. This submission is only stated to be rejected. The accused never claimed that insecticide was forcibly administered to him. Hence, in this circumstance, the submission that the insecticide was administered to him forcibly cannot be accepted.
::: Downloaded on - 02/05/2024 20:35:00 :::CIS 6376. The learned Trial Court had imposed a substantive sentence of three years imprisonment for the commission of an offence punishable under Section 201 of IPC, simple imprisonment .
for one year for the commission of an offence punishable under Section 309 and life imprisonment for the commission of an offence punishable under Section 302 of IPC.
77. Keeping in view the fact that a life was lost and the dead body was never recovered, the sentence cannot be said to be excessive and no inference is required with the same.
78. No other point was urged.
79. In view of the above, the judgment and order dated 27.10.2018 are fully sustainable. Consequently, the present appeal fails and the same is dismissed. Records of the learned Courts below be sent back forthwith.
(Vivek Singh Thakur) (Judge) (Rakesh Kainthla) Judge 2nd May, 2024 (ravinder) ::: Downloaded on - 02/05/2024 20:35:00 :::CIS