Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 29 June, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 353 of 2010
Reserved on: 20.06.2016
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Date of decision: 29.06.2016
State of Himachal Pradesh ... Appellant
Versus
of
Shayam Lal and others ... Respondents
Coram : rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. V.S. Chauhan, Additional Advocate
General with Mr. Vikram Thakur and
Mr. Puneet Rajta, Deputy Advocate
Generals.
For the respondents: Mr. H.S. Rana, Advocate.
Ajay Mohan Goel, J.:
By way of this appeal, the appellant/State has challenged judgment passed by the Court of learned Sessions Judge, Solan, dated 16.02.2010, in Sessions Trial No. 21-NL/7 of 2008, vide which, learned trial Court has acquitted the accused therein for offences punishable under Sections 302, 364, 404, 201 read with Section 34 I.P.C.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 22. The case of the prosecution was that Nisha wife of Dila Ram was found missing during the intervening night of 19/20.03.2007 from her residence in village Khil-Khokhla .
falling in jurisdiction Police Station, Ram Shahar, Tehsil Nalagarh, District Solan. She was putting up in her house alongwith her three children, as her husband Dila Ram was working as a labourer in Calcutta. She was not having good of relations with the accused and their family members. On account of holidays in school, deceased had sent her children rt to her parental house one day prior to her disappearance.
When her parents came to know about her disappearance, they informed the husband of deceased telephonically. As instructed by Dila Ram, the house was opened and the cattle was freed, which was unattended in the cattle shed. This was followed by search of the deceased by her father and other relatives but she could not be traced. Missing report was lodged with the police. Dila Ram arrived from Calcutta and on the basis of a report made by him, FIR No. 30/2007 was registered under Section 365 at Police Station. On suspicion, A-1 Shayam Lal and other accused were arrested on the premise that Shayam Lal was having illicit relation with the deceased and he kept on visiting her despite objections of family members. As per prosecution, matter was taken note of by the residents of the area. They informed the police regarding the said conduct of the deceased that she was of loose character and lot of ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 3 people used to visit her and residents apprehended that some untoward incident may take place. Shayam Lal was directed not to visit her. Deceased had also been provided a mobile .
phone by A-1 on which she used to converse with him. There was also land line telephone at her residence. Police discovered that accused after hatching a conspiracy to eliminate the deceased took her to jungle during night time.
of This was done on the pretext that they will apprehend Kamal as well as Narain accused, who used to fell Kher trees in order rt to revenge the excise case which had been planted against her and on the basis of which, a complaint was also lodged.
During night time, when the deceased was accompanying Shayam Lal, he throttled her to death. Thereafter, he called Mohinder and Narain who accompanied him to jungle to dispose of the body. The dead body was thrown in a well known as "Jharni Moorh Kuan" near Jogon. After 20 days, the dead body was found floating in the well by accused. The dead body was cut into pieces and was dumped in the well in two gunny bags by A-1 accompanied by other accused. After about six months, husband of deceased heard the accused discussing while consuming liquor that they had succeeded in eliminating the deceased and by now her bones must have decomposed. The husband of the deceased thereafter went to the well alongwith other people and gunny bag was found floating. The matter was reported to the police and on the ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 4 next day, the gunny bag was taken out, in which there were body parts. Later on after getting the well dried up, the remaining parts of the body were taken out which were all .
putrefied. The parts of the body were sent for chemical analyses to IGMC Shimla, where forensic expert and doctor conducted postmortem and a part of the body recovered was sent for DNA profiling. On the basis of DNA profiling, the dead of body was found to be that of deceased Nisha. Accused Shayam Lal was arrested alongwith his brother Kamal Chand. On the rt discovery of body, FIR No. 238 of 2007 was registered on 13.09.2007 at Police Station Nalagarh. Investigation revealed that Shayam Lal accused was unmarried and he was having illicit relation with deceased Nisha. After his engagement, Nisha insisted that she never wanted Shayam Lal to marry someone else, she used to threaten accused Shayam Lal with dire consequences and that she will involve him in a rape case.
Accused Shayam Lal continued his relations with her.
Investigation also revealed that Mohinder Singh and Narain Dass did not accompany Shayam Lal to jungle to dispose of the dead body. Surender was taken to the spot for disposing of the dead body, which was thereafter thrown in the well.
Shayam Lal and Kamal Kumar were alleged to have went to the spot and noticed the dead body floating, which was thereafter chopped and the pieces of the dead body were put in gunny bag and they were put dumped back in the same ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 5 well. Her hairs, shoes, bangles, watch and sim card etc. were kept hidden under concrete. The hairs, shoes bangles etc. were subsequently burnt by the accused. Accused Shayam Lal made .
a disclosure statement on the basis of which axe and sickle with which the dead body was cut into pieces were recovered.
It was concluded on the basis of investigation that murder had been committed on the basis of a conspiracy hatched in of this regard between accused Shayam Lal, Kamal Chand and Narain Dass.
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3. After the completion of investigation, challan was presented in the Court. The accused were charged for commission of offences under Sections 302, 364, 404, 201 read with Section 34 I.P.C., to which, they pleaded not guilty and claimed trial.
4. On the basis of material on record, the learned trial Court came to the conclusion that no doubt dead body of Nisha was found in pieces in two gunny bags in a well at Jharni which was fished out, however, it had not been found beyond shadow of doubt that she was murdered by the accused after hatching conspiracy in this regard and her dead body was dumped by them in the well as per the allegations. Thus, the learned trial Court gave the accused persons benefit of doubt and acquitted them of the charged levelled against them.
::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 65. We have heard Mr. V.S. Chauhan, learned Additional Advocate General as well as Mr. H.S. Rana, Advocate, learned counsel for the respondents. We have also .
gone through the records of the case and the judgment passed by the learned trial Court.
6. Mr. V.S. Chauhan, learned Additional Advocate General, argued that the finding of acquittal which has been of returned by the learned trial Court was not sustainable in law because the prosecution was able to prove beyond rt any reasonable doubt on the basis of material on record that a conspiracy was hatched by accused Shayam Lal alongwith Narain Dass and Mohinder to do away with the deceased and the deceased was murdered as a result of the said conspiracy and her body was thrown into the well. According to him, it further stood established on record that after the commission of the murder evidence was also destroyed by the accused as a part of the conspiracy.
7. On the other hand, learned counsel for the respondents has argued that there was neither any perversity nor any infirmity with the judgment passed by the learned trial Court because the accused were not guilty of the offences alleged against them nor the prosecution was able to prove its case against the accused beyond reasonable doubt. According to him, neither any conspiracy was hatched by the accused as ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 7 alleged by the prosecution nor the deceased was murdered as a result of the conspiracy.
8. In our considered view, what has to be scrutinized .
on the basis of the material on record is whether the prosecution has been able to prove beyond any reasonable doubt that a conspiracy was indeed hatched by Shayam Lal with Narain Dass and Mohinder Singh to do away with the of deceased and whether the deceased was killed as part of that conspiracy and whether thereafter, the accused destroyed rt the evidence after committing the murder of the deceased.
9. In the present case, there is no direct evidence to suggest that on the intervening night of 19/20.03.2007, the deceased was led to jungle by accused Shayam Lal. This factum has come on record in the course of investigation on the basis of the alleged disclosure statement made by accused Shayam Lal while in police custody which is on record as Ext.PW6/A. This disclosure statement has been allegedly made in the presence of two witnesses, namely, Bagga Ram and Ram Lok.
10. It is settled principle of law that no confession made to a police officer shall be proved as against a person accused of any offence. This is provided in Section 25 of the Evidence Act. Section 26 of the said Act further provides that no confession made by any person while he is in the custody of a police officer, shall be proved as against such person unless it ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 8 be made in the immediate presence of a Magistrate. Section 27 of the said Act provides how much of an information received from accused may be proved.
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11. The Hon'ble Supreme Court in Mehboob Ali & Another Vs. State of Rajasthan, (2015) 9 J.T. 512, has held as under:-
"[13] For application of section 27 of of Evidence Act, admissible portion of confessional statement has to be found as to rt a fact which were the immediate cause of the discovery, only that would be part of legal evidence and not the rest. In a statement if something new is discovered or recovered from the accused which was not in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence.
[14] Section 27 of Evidence Act refers when any "fact" is deposed. Fact has been defined in section 3 of the Act. Same is quoted below :
"Fact" means and includes' (1) any thing, state of things, or relation of things, capable of being by the senses; (2) any mental condition of which any person is conscious. Illustrations:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 9
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified .
time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. "Relevant". "One fact is said to be relevant to another when the one is of connected with the other in any of the ways referred to in the provisions of this Act rt relating to the relevancy of facts."
[16] This Court in State (NCT of Delhi) v.
Navjot Sandhu alias Afsan Guru, 2005 11 SCC 600 has considered the question of discovery of a fact referred to in section 27. This Court has considered plethora of decisions and explained the decision in Pulukuri Kottaya & Ors. V. Emperor, 1947 AIR(PC) 67 and held thus :
"125. We are of the view that Kottaya case, 1947 AIR(PC) 67 is an authority for the proposition that "discovery of fact" cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.
126. We now turn our attention to the precedents of this Court which followed the track of Kottaya case. The ratio of the decision in Kottaya case reflected in the ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 10 underlined passage extractedwas highlighted in several decisions of this Court.
127. The crux of the ratio in Kottaya case was explained by this Court in State of .
Maharashtra v. Damu. Thomas J. observed that: (SCC p. 283, para 35) "The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the of interpretation that the "fact discovered"
envisaged in the section embraces the place rt from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
In Mohd. Inayatullah v. State of Maharashtra, 1976 1 SCC 828, Sarkaria, J. while clarifying that the expression "fact discovered" in Section 27 is not restricted to a physical or material fact which can be perceived by the senses, and that it does include a mental fact, explained the meaning by giving the gist of what was laid down in Pulukuri Kottaya case . The learned Judge, speaking for the Bench observed thus: (SCC p. 832, para 13) "Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Pulukuri Kottaya v. Emperor ; Udai Bhan v. State of U. P., 1962 Supp2 SCR 830)."
::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 1112. Now in this legal background, we will be scrutinizing the disclosure statement made by the accused .
under Section 27 of the Evidence Act. According to the prosecution, accused Shayam Lal disclosed that on 19.03.2007 he took Nisha Devi in the jungle on the pretext of cutting Kher trees as was earlier conspired alongwith Narain Dass of and Mohinder Singh. Said two persons were already at the disclosed place. At a short distance from the house he rt strangulated Nisha Devi. Thereafter, he called Mohinder Singh and Narain Dass. Narain Dass did not come. Mohinder Singh came to the spot. Thereafter, they both left to their respective house. After sometime, he alongwith his brother Kewal and his nephew came back with a gunny bag and all three of them after concealing the body of Nisha Devi in the said gunny bag, threw the same during night time inside the well near the "Jharni Moorh". Next day, he told about this fact to his brother Kamal who had come from Patiala. After 20-25 days, he and Kamal had gone to pay their obeisance to Haripur Baba Ji. On their way when he looked inside the well he found the said gunny bag floating. Next day, when they came back from Haripur Baba Ji, his brother purchased a rope from Panejehra Bus Stand and on the same night, he alongwith Mohinder Singh, Kamal and Surender went to the well. He took two gunny bags and axe and sickle from the house. They took ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 12 out the body of Nisha from the well. At that time, her hair alongwith skin came out. They concealed shoes, bangles and clip etc. in a black cloth and put it back in the same bag.
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Neck, arms and legs of the dead body were cut into pieces and put into two separate gunny bags in which stones were put and gunny bags were again thrown in the well. The cloth containing shoes, bangles, hair sim card etc. was hidden of behind sand and rodi near the Nala. Other articles were thrown in the Nala. He had kept axe and Darat in his house.
rt He had later on burnt the clothes, shoes, hair, bangles, clip etc. in the jungle. He stated that he can demarcate that place where he had strangulated Nisha Devi and also from where the clothes were hidden and thereafter burnt, and the place where he has concealed axe without handle and sickle.
13. Bagga Ram has entered the witness box as PW-5 and Ram Lok has entered the witness box as PW-6. A perusal of the testimony of the PW-5 demonstrates that he has not stated either in his examination-in-chief or in his cross-
examination that any disclosure statement was made in his presence by accused Shayam Lal.
14. Ram Lok, who has entered the witness box as PW-6, has deposed to the effect that on 13.07.2008 he alongwith Bagga Ram had visited the Police Station and police conducted interrogation of accused Shayam Lal in his presence.
Accused told that a sickle and axe (Safajang) had been kept ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 13 by him at his home and stated that he can get the same recovered. This disclosure statement is alleged to have been made on 13.07.2008. In this disclosure statement, as per the .
prosecution, the accused amongst other things had disclosed that on the evening of the fateful day, he allured deceased to the jungle and there he strangulated her. Accused has also mentioned in his disclosure statement that as to how the body of of the deceased was subsequently disposed of. However, none of these facts have been stated by PW-6. As far as PW-5 is rt concerned, we have already taken note of this fact that he has no where stated in his statement that any disclosure statement was made in his presence. He has only deposed with regard to the alleged recoveries effected in his presence.
15. This in our considered view, makes the factum of any disclosure statement having been made by the accused voluntarily in the manner as has been stated by the prosecution highly doubtful and suspicious.
16. Now, we come to the statement of husband of deceased PW-1. According to PW-1 Dila Ram, he used to work as a labourer in Calcutta. On 19.03.2007, he talked with his wife on mobile for about 20-25 minutes and he was told that his children on completion of their examination had gone to the house of their maternal grand father and his wife was alone at home. According to him, thereafter, for the next 2-3 days he could not talk with his wife. Thereafter, he received ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 14 a telephone from his in-laws informing him that the deceased was not at home and the house was locked and animals were unattended. On this, he asked his in-laws to release the .
animals and to break open the locks of the house. He reached back on 24.03.2007 and proceeded to Police Station Ram Shahar and asked the police to conduct search of his wife.
Thereafter, according to him, he met SDPO, Nalagarh and of moved an application Ext. PW1/A. CIA staff Solan arrested the accused. However, the whereabouts of is wife could not be rt ascertained. Now comes the most important part of his testimony, which is quoted herein below:-
"After some time the date and month I do not remember I was returning home from the house of my sister at village Kasana. When at about 10-12 PM I had reached near my house on hearing some talks inside of the home of Bhagat Ram. I had stopped there. Some people were consuming liquor. Kamal Chand, Shyam Lal, Chaman Lal, Hari Krishan and Bhagat Ram were those people who were talking inside whom I could identity from their voice. All being from my village. One of them Shyam Lal, Kamal Chand are present today in the Court today. In their conversation they were saying that by now the bone of Nisha may have got dissolved in the well. and now they have succeeded in their mission."::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 15
17. He further deposed that thereafter he went to his house and asked his younger brother Chuni Lal to prepare .
food for him in the early morning. At about 7.00 A.M., his brother Nikka reached home. After having meals, he accompanied Nikka and his elder brother Ganju and, went to Jogon to search the well about which he had heard over of night. They reached near the place known as Jharni where the well is situated. Thereafter, he has deposed as under:-
rt "We saw a gunny bag flouting in the well. On suspecting that dead body may be in the well I informed my in laws telephonically. 2-3½ hours my father in law, mother in law accompanied by Achharu the uncle of my wife. My father in law had telephonic call with District Inspector of Police CIA Solan who had asked us to approach Police Post Joghon.
Police people at Joghon had asked me to keep watch for the night at the well on our moving application at PP Joghon. Next day police people with the help of villagers had fished out the gunny bag which was found containing dead body without head and some other organs which was taken by the police."
18. In his cross-examination, he has stated that he did not give any complaint in writing to the police about what ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 16 he had heard. In fact, he says that he had not informed any one about what he had heard. He has also admitted that there was dispute between him and accused Kamal with regard .
to irrigation of their respective lands and a settlement had been arrived at on the intervention of Panchayat. He has also deposed that before lodging report against accused Shyam Lal, he and his family members were not entertaining any of suspicion on any of the accused.
19. rt In our considered view, the version which has been putforth by the said witness, requires a very close scrutiny. This is for the reason that besides him being an interested witness, as he is the husband of the deceased, the story putforth by him does not seem to be believable. The way and manner in which according to him, he came to know about his wife having been killed by the accused seems more like a concocted version than a fact which will come into the knowledge of a person in normal circumstances. The alleged body of the deceased in a gunny bag has been first noticed by PW-1. He allegedly visited the well after hearing the version of the accused. He has also stated that before visiting the spot where the well was situated he had returned to his house where he disclosed what he had heard to his brother and asked him to prepare meal. He had his meal in the morning and thereafter visited the spot. According to us, this conduct of a person who has gained knowledge about the circumstances in ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 17 which his wife was killed is unnatural. Any normal person on gaining knowledge as to how his wife was killed would rush to the nearest Police Station/Police Post to disclose what he has .
heard. However, PW-1 rather than doing this, went to his house, stayed there over night and also had meal and then he visited the spot. This conduct of PW-1 besides being unnatural also shrouds the story of the prosecution with suspicion.
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20. According to the prosecution, thereafter, next day rt police people with the help of villagers had fished out the gunny bag which was found containing body parts. The dead body was taken into possession and photographs were also taken. The parts of the body were sent for analysis. The analysis were conducted by Dr. Piyush Kapila, who has stated has PW-21 that the body parts were of a human being. He has also stated that sex of the individual was female aged about 17-40 years. It was also stated that for absolute identification whole jaw and one femure bone was sent for DNA analysis. As per the record, blood samples of the parts of the deceased were taken by the police in the presence of Judicial Magistrate, Nalagarh, for the purpose of DNA analysis. DNA profiling has been conducted by PW-18 Dr. D.S. Negi. On the basis of DNA profiling coupled with the statements of medical expert, it stood established on record that the body so discovered was of deceased Nisha.
::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 1821. According to the prosecution, accused Shayam Lal was also having motive to do away with the deceased.
Accused Shayam Lal and the deceased were having illicit .
relations and after accused Shayam Lal was engaged, he was threatened by the deceased that she will not allow him to marry any one and if he does, she will implicate him in a rape case. At this stage, we can also refer to the so called disclosure of statement made by accused Shayam Lal as well as Kamal Chand (whose disclosure statement is Ext.PW9/A), which led to rt the recovery of axe, sickle, torch and the rope, which has been purchased from a shop at Jogon. The factum of the purchase of rope from a shop at Jogon has come in the disclosure statement of accused Kamal, which disclosure statement has been exhibited as Ext. PW9/A. This rope according to the prosecution was used for taking out the gunny bag from the well when it was found to be floating at the first instance by accused Shayam Lal.
22. PW-24 Ajay Kumar, seller of the rope, has deposed that he runs a hardware shop at Panejehra and police had come with two persons and stated that they had purchased a rope from his shop. However, he did not remember whether they purchased any rope. According to him, he saw those two persons only on that day. He was declared as a hostile ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 19 witness. Incidentally, the rope in issue was never discovered by the police.
23. In our considered view, this disclosure statement .
which has been recorded under Section 27 of the Evidence Act is of no relevance at all because where as on one hand any disclosure statement made by an accused in police custody is not admissible in law, On the other hand, on the basis of the of said disclosure statement, as far as the present case is concerned, no recovery has been effected by the police. This rt statement looses its relevance and significance.
24. A perusal of the testimony of the witnesses in whose presence recoveries have been effected on the basis of the disclosure statement made by accused Shayam Lal demonstrates that these witnesses have not supported the case of the prosecution. There are contradictions in the statements of these witnesses, which shroud the case of the prosecution with suspicion. According to PW-47 Inspector Om Prakash, one axe Ext. P-3, sickle Ext. P-4 and torch Ext. P-5 were recovered from the house of the accused vide Ext. PW5/C on the basis of disclosure statement made by accused Shayam Lal. As per PW-47 Inspector Om Prakash, these recoveries were made at the instance of Shayam Lal and Ext.PW5/C was prepared in the presence of witnesses Hem Lata, Bagga Ram and Ram Lok. Hem Lata has deposed as PW-7 and according ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 20 to her the objects which were recovered at the instance of accused Shayam Lal were concealed in a separate parcel and taken into possession. According to her, she did not .
remember impression of seal. She was also declared as a hostile witness.
25. Incidentally, as per the report of the chemical of analysis, the sickle and the axe were not found to be carrying any particles of tissue of the dead body. If the said weapons rt had been used to cut the body of the deceased then some particles of the tissue of the dead body ought to have been found from the sickle or the axe. This also creates a serious doubt as to whether these articles actually were the alleged weapons of offences or not. Therefore, in our considered view, the prosecution has miserably failed to connect the accused with the alleged disclosure statement made by accused Shayam Lal and the alleged recoveries effected on the basis of the said statement.
26. From what we have discussed above, it is evident that the prosecution has not been able to establish on record beyond any reasonable doubt that Nisha was murdered by the accused after hatching conspiracy in this regard and thereafter, the dead body of the deceased was dumped in the well as is the case of the prosecution. We may reiterate here that in the ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 21 present case there are no eye witnesses, who have seen the alleged commission of offences.
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27. It is settled law that in the case of circumstantial evidence, the salient features which have been carved out by the Honble Supreme Court in Vijay Thakur Vs. State of Himachal Pradesh, (2014) 14 Supreme Court Cases 609, are of as under:
(i) rt The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) Thee must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
28. From what we have discussed above, it cannot be said that there are circumstances which have been placed on record by the prosecution on the basis of which it can be said ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 22 that there is a definite conclusion of guilt, which has been fully established by the prosecution against the accused. This is evident from the following:-
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(a) The prosecution has not been able to place any material on record from where it can be gathered that the deceased was allured to the jungle by accused Shayam Lal, as a result of conspiracy hatched by him with of other co-accused to do away with her.
(b) The prosecution has not been able to place rt any material on record to substantiate that the deceased was strangulated by Shayam Lal and thereafter her body was packed in a gunny bag and thrown in a well.
(c) The prosecution has not been able to substantiate by placing any material on record that after few days Shayam Lal with the help of other co-accused fished out gunny bag from the well and after chopping the dead body dumped the same again into two gunny bags with stones and threw it in the well.
(d) The prosecution has not been able to establish that Shayam Lal and other co-
accused destroyed the other evidence by burning the clothes, hairs, bangles, sim card and other belongings found on the dead of the deceased.
(e) The prosecution has not established on record that PW-1 actually over heard the accused the accused confessing about having murdered the deceased and ::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 23 thereafter disposing her body in the manner as has been putforth by the prosecution.
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29. Therefore, the chain of circumstances in the present case from the time the deceased went missing and till the time her body was found from the well in the gunny bags does not link the accused conclusively with the commission of of the offences.
30. rt According to us, the material on record placed by the prosecution may be pointer that the accused might have committed the offence which has been alleged against them but we reiterate that this "may be" cannot be made basis to convict a person.
31. On the basis of material on record, it cannot be said that the prosecution was able to bring home the guilt of the accused beyond reasonable doubt.
32. Further, a perusal of the judgment passed by the learned trial Court demonstrates that all these aspects of the matter have been taken into consideration by the learned trial Court and dealt with in detail. According to us, the conclusions arrived at by the learned trial Court can neither be said to be perverse nor it can be said that the conclusions are not borne out from the records of the case.
::: Downloaded on - 15/04/2017 20:42:49 :::HCHP 2433. Therefore, we uphold the judgment passed by the learned trial Court and dismiss the appeal being without any merit. Bail bonds, if any, furnished by the accused are .
discharged.
(Sanjay Karol),
Judge
of
(Ajay Mohan Goel),
June 29, 2016 Judge
(BSS) rt
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