Himachal Pradesh High Court
Kalyan Singh Alias Bitto vs State Of Himachal Pradesh on 13 June, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No 43 of 2013.
Reserved on 16.5.2016.
Decided on: 13.6.2016.
.
Kalyan Singh alias Bitto
....Appellant.
Versus
State of Himachal Pradesh ... Respondent.
................................................................................................
of
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting?1 Yes.
For the appellant. : Mr. Satyen Vaidya, Sr. Advocate with Mr.
Vivek Sharma, Advocate.
For the respondent . : Mr.V.S. Chauhan, Addl. Advocate General
with Mr. Vikram Thakur, & Puneet Rajta,
Dy. Advocate Generals.
Ajay Mohan Goel, J.
This appeal has been filed against the judgment passed by learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 18-ST/7 of 2012 dated 22.1.2013, vide which the learned Trial Court has convicted accused for offence punishable under Section 302, 201 IPC and sentenced him to undergo rigorous imprisonment for life and to pay Rs. 5,000/-
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 2and in default of payment of fine, to undergo simple imprisonment for six months under Section 302 IPC. Accused .
has been further sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2,000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 201 IPC. Both the sentences are to of run concurrently.
2. In brief, the case of the prosecution was that Smt. rt Satya Devi, (hereinafter to be referred as 'deceased'), was married to accused, Kalyan Singh (in short 'accused') in Renuka Temple on 12.10.2007. Theirs was a love marriage.
After her marriage, deceased stayed in her matrimonial house at village Kuffri. After about two months of marriage, accused started maltreating and quarrelling with deceased under the influence of liquor on the ground that deceased belonged to a poor family. This fact was disclosed by deceased to her brothers Guman Singh, Bhim Singh and Inder Singh.
Thereafter, deceased left for Dera Sacha Sauda, Sirsa and during the said period, accused contracted second marriage.
When deceased came back from Sirsa, she had pregnancy of 6-7 months and delivered a male child at Rajgarh. Deceased's ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 3 brother, Inder Singh, contacted accused and asked him to take back his sister and child but accused told him that he was ready .
to take the child but not the deceased. In November, 2008, Smt. Meera Tomer, Community Organizer, Nagar Panchayat received a letter from deceased, which was addressed to Sh.
Mohinder Bhaglalia, Co-coordinator of ARTI, NGO, Rajgarh, of vide which deceased had made a complaint against her husband. This letter was sent to Mohinder Bhangalia, who rt thereafter called deceased and accused to his NGO for counseling on 8.12.2008 and 10.12.2008. Thereafter, accused amicably settled the matter with deceased and agreed to have his wife and child entered in the Panchayat record but he did not fulfill his promise. Deceased went to Totu, Shimla under the supervision of Protection Officer, ICDS, Shimla and filed proceedings against accused under the Domestic Violence Act in the Court of JMIC, (6), Shimla. In the said proceedings accused entered into compromise with deceased and the matter was accordingly disposed of by the said Court, vide order dated 2.7.2009. Deceased and accused visited NGO of Mohinder Bhangalia on 9.7.2009 and thereafter accused left for his house along with his wife and child. Brother of deceased ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 4 Guman Singh also left for his house. When Guman Singh came back to his house from the house of accused on third day, .
deceased told him that she apprehended danger to her life from accused. After 3-4 days, Mohinder Bhangalia also received a telephonic call from deceased, wherein she told him that accused had kept her in Dogari and he was not talking to her of and she apprehended that accused would kill her. After about three months, when Mohinder Bhangalia contacted accused rt and inquired about his wife, accused told him that deceased had gone to attend some Bhagwat from where, she had fled away with some 'Sadhu'. On this Mohinder Bhangalia asked the accused as to whether he had lodged any report with the police, to which accused told him that he had not reported the matter to the police. Further the case of prosecution is that, for some time, after deceased had gone with accused, she used to complains against accused with her brother, Guman Singh, on telephone but subsequently she stopped calling him. After some time, accused called Bhim Singh, elder brother of deceased and told him that deceased had left for Sirsa but when they inquired at Sirsa, they found that deceased was not present there.
When the deceased was not traceable for a year, her brother, ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 5 Inder Singh, visited the house of accused who told him that deceased had gone to Renuka for some religious affair and as .
and when deceased comes back, he will visit their house along with deceased. However, when accused did not visit the house of Inder Singh, they got suspicious that accused might have killed their sister and upon this, her brother, Guman Singh, of reported the matter to ASI Dulo Ram, In-charge, PP, Nohradhar, Ext. PW1/A, on the basis of which, FIR, Ext.PW4/A, rt was registered in Police Station, Sangrah by Babu Ram, who was the then investigating officer. The matter was investigated by the police and the accused was arrested on 8.1.2012. While in police custody, accused made a disclosure statement in PP, Nohradhar before SI Harpal Singh that he could demarcate the place where the dead body of deceased was buried. On this, SI Harpal Singh moved an application to Executive Magistrate, Nohradhar for permission to exhume the dead body of deceased. On 11.1.2012, accused led the police to Panjah Khad and demarcated the place where the dead body of deceased was buried. After permission from Executive Magistrate, Nohradhar who was also present on the spot, when the digging was conducted on the spot, one human skeleton ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 6 was found which was identified by Guman Singh to be that of his sister Satya Devi. SI Harpal Singh conducted inquest over .
the skeleton and prepared inquest reports, Ext. PW27/B and Ext.PW27/C and thereafter he put the skeleton into a carton under the supervision of PW13, Dr. Jatinder Thakur, and moved an application, Ext.PW13/A, for conducting the post-mortem of examination and sent the same to Civil Hospital, Rajgarh from where PW13 sent the same to IGMC, Shimla. The post-mortem rt examination of the skeleton was conducted by Dr. Sangeet Dhillon and report of the same is, Ext.PW30/B. On 13.1.2012, accused made disclosure statement that he could get one iron rod recovered from his residential house. On the basis of the disclosure statement, recovery of iron rod from the upper story was made. On 22.2.2012, Dr. Pankaj Chandel obtained blood samples of the son of the deceased and brother Guman Singh on FTA cards for the purpose of identification of the skeleton on the basis of DNA profiling. The investigation further revealed that accused was having a second wife and he did not want to give share in his property and maintenance allowance to his first wife deceased-Satya Devi and therefore, accused along with his brother accused-Surinder Singh killed the deceased on ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 7 the night of 15.7.2009 by giving her beatings with iron pipe and in order to destroy the evidence, they buried deceased body in .
Panjah Khad. After the completion of investigation, accused persons were sent for trial under Sections 302, 201 read with Section 34 IPC.
3. The accused pleaded not guilty and claimed to be of tried.
4. The prosecution, in all, examined 30 witnesses in rt order to substantiate its case. On completion of trial on the basis of the material placed on record by prosecution, the learned Trial Court acquitted accused Surinder Singh by holding that prosecution has failed to bring home the guilt of said accused. However, as far as accused-Kalyan Singh was concerned, it held that the prosecution has established its case against him beyond reasonable doubt. Accordingly, learned Trial Court convicted accused Kalyan Singh.
5. Feeling aggrieved by the said conviction imposed upon him, the present appeal has been filed by accused, Kalyan Singh, against the judgment of learned Trial Court.
6. Mr. Satyen Vaidya, Learned Senior Counsel appearing for the appellant has argued that the judgment ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 8 passed by the learned Trial Court is perverse and not sustainable in law. According to him, the conclusion arrived at .
by the learned Trial Court to the effect that the prosecution had proved its case beyond reasonable doubt against accused-
Kalyan Singh was not borne out from the record. He further argued that in the present case there were two accused and the of co-accused had been acquitted by the learned Trial Court on the ground that prosecution had not been able to prove its case rt against him beyond reasonable doubt. Accordingly, he argued that when both the accused were charged with the same offences, then the acquittal of one warranted the acquittal of other also. Therefore, he urged that the conviction of the appellant was totally unwarranted and in fact amounted to travesty of justice. He further argued that admittedly in the present case there is no eye witness, who can connect the appellant with the charges alleged against him. Therefore, the learned Trial Court has erred in not appreciating that in the absence of cogent circumstantial evidence, the prosecution had failed to link all the circumstances by an unbroken chain so as to bring the guilt of the accused home. Thus, according to him, the conviction of accused was unwarranted and the findings ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 9 returned by the learned Trial Court were based on conjectures and surmises rather than material produced on record by the .
prosecution. He further argued that the prosecution witnesses were not trustworthy and their credibility stood impinged by the defence. According to him, the deposition of the witnesses of prosecution was not so credible so as to be made basis of of conviction of a person. Thus, he prayed that the judgment passed by the learned Trial Court was completely erroneous rt and the same was liable to be set aside and the appellant was liable to be acquitted of the offences alleged against him.
7. On the other hand, Mr. V.S. Chauhan, learned Addl.
Advocate General has argued that the appeal filed by the convict is without any merit. According to him, the findings arrived at by the learned Trial Court are neither perverse nor it can be said that the conviction of the accused is not substantiated on the basis of material produced on record by the prosecution. According to him, the learned Trial Court has rightly come to the conclusion that the prosecution has proved beyond reasonable doubt that convict was guilty of offences alleged against him. He has further argued that all the circumstances in the present case stood proved link by link by ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 10 the prosecution and the disclosure statement of accused/convict inspired confidence, as the same was duly .
proved by the prosecution to the hilt and which disclosure statement actually resulted in the body of the deceased being recovered. According to him, the order of conviction and the sentence imposed by the learned Trial Court warranted no of interference and he argued that the appeal being merit-less deserved dismissal.
8. rt We have heard learned counsel for the parties and gone through the records of the case.
9. Admittedly in the present case, there is no eye witness.
10. At this stage, it is relevant to take note of the judgment of Hon'ble Supreme Court on circumstantial evidence in Vijay Thakur Vs. State of Himachal Pradesh, (2014) 14 Supreme Court Cases 609, relevant paras of which are quoted below:-
"18. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 11 culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible .
without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts of in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid rt recoveries.
19. In Mani v. State of Tamil Nadu, (2008) 1 SCR 228, this Court made following pertinent observation on this very aspect:-
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
20. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:-
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 12"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances .
has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
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21. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:-
rt "24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated.
Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 13(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 of hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable rt 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."
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 14 information leading to discovery and not any opinion formed on it by the prosecution."
.
It is settled position of law that suspicion, however strong, cannot take the character of proof.
22. We, therefore, have no hesitation in allowing these appeals and setting aside the of conviction and sentence of the two appellants under Section 302 read with Section 34 of the Penal Code. We order accordingly. The rt appellants are directed to be released from jail forthwith, if not required in any other case."
11. The Hon'ble Supreme Court in Sangili alias Sanganathan Vs. State of Tamil Nadu, (2014) 10 Supreme Court Cases 264 has held as under:-
"15. To sum up what is discussed above, it is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. In the present case, we find, in the first instance, that the appellant was roped in with suspicion that it was a case of triangular love and since he also ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 15 loved PW-3, he eliminated the deceased when he found that the deceased and PW-3 are in love with each other. However, we are of the view .
that this motive has not been proved. The evidence of last seen is also not established. Father of the deceased only said that the deceased had received a call and after receiving that call he left the house. In his deposition, he admitted that he had not seen the appellant of before and he did not recognize his voice either. Therefore, he was unable to say as to whether the phone call received was that of the appellant. Proceeding further, we find that the rt deceased was not seen by anybody after he left the house. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
16. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273, this Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 16 of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a .
case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in of fact a case of no evidence."
17. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:-
rt "24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) 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;
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 17(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) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the of accused."
25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the rt accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence.
What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
(emphasis supplied)
18. It is settled position of law that suspicion however strong cannot be a substitute for proof.
In a case resting completely on the
circumstantial evidence the chain of
circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. In our opinion, it is not safe to ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 18 record a finding of guilt of the appellant and the appellant is entitled to get the benefit of doubt. We, therefore, allow the appeal and set-aside .
the conviction and sentence of the appellant. The appellant be set at liberty unless required in any other case."
12. Thus, the salient points which have been carved out by the Hon'ble Supreme Court in the case of circumstantial of evidence, on the basis of which the guilt of the accused can be brought home, are as under:-
rt "(i) 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 ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 19 the innocence of the accused and must show that in all human probability the act must .
have been done by the accused."
13. Because it is a case of circumstantial evidence, this Court has to satisfy its judicial conscience as to whether by way of circumstantial evidence produced on record by the of prosecution, it has been able to link the commission of the offence with the accused or not.
14. rt Now, we will apply the above salient features to the facts of the present case, in order to ascertain as to whether there is any infirmity or perversity with the judgment passed by the learned Trial Court in the present case.
15. Neither there is any direct evidence nor there is any eye witness who allegedly has seen the accused committing the crime. Thus, the case of the prosecution is solely based on circumstantial evidence.
16. In our considered view, where a case rests upon circumstantial evidence, such evidence in order to base conviction, must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 20 accused but should be inconsistent with his innocence. The circumstances which have been relied upon by the prosecution .
to connect the accused with the charged offences are as under:-
1. relation of the deceased becoming strained with her husband soon after the marriage and the deceased leaving for Dera Saucha Sauda, Sirsa;
2. accused Kalyan Singh contracting second marriage;
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3. accused Kalyan Singh not paying any maintenance allowance to the deceased and her child despite counseling done by the NGO at Rajgarh;
4.
rt deceased moving the court at Shimla against accused Kalyan Singh under Domestic Violence Act and amicable settlement reached at between the parties in the court;
5. apprehensions of threat to her life expressed by the deceased soon before her disappearance;
6. deceased last seen alive with her husband accused Kalyan Singh;
7. false explanation given by accused Kalyan Singh regarding disappearance of the deceased;
8. demarcation of place in Panjab Khad by both of the accused from where human skeleton was recovered;
9. identification of the skeleton to be that of deceased Satya Devi by her brother and also by DNA report;
10. cause of death of Satya was homicidal; and
11. recovery of weapon of offence at the instance of accused Kalyan Singh.
Circumstance No.1.
16. The first circumstance which was relied upon by the prosecution was that the relationship between deceased and ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 21 accused had become strained after marriage and due to this reason deceased left for Dera Saucha Sauda, Sirsa. To prove .
this circumstance, Guman Singh brother of deceased appeared in the witness-box as PW-1.
17. PW1 has deposed that after the marriage of deceased with accused, she was kept well for two months by of accused and thereafter accused started quarreling with deceased on the ground that deceased belongs to a poor rt family. Accused used to maltreat his sister under the influence of liquor and deceased had disclosed these facts to them. He has also deposed that after two months of her marriage, deceased had left for Dera Sacha Sauda at Sirsa because deceased was fed up with the maltreatment meted out to her by the accused.
18. PW2-Inder Singh, who is also brother of deceased, has also deposed that when deceased visited them 1½ month after marriage, she complained that accused was maltreating her, under the influence of liquor. He has also deposed the factum of his sister leaving for Sirsa on account of maltreatment being meted out to her by the accused.
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 2219. PW20-Tulsi Ram, God brother of deceased deposed that he was disciple of Dera Sacha Sauda, Sirsa and .
deceased was also disciple of said Dera at Sirsa. He has stated that deceased disclosed to him that her husband (accused) maltreated her under the influence of liquor and due to this reason deceased had left for Dera Sacha Sauda, Sirsa.
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20. The credibility of the deposition of these witnesses has not been impinged by the defence. Further learned counsel rt for the appellant could not impress upon us, as to why this Court should disbelieve the testimony of these witnesses which was trustworthy and which inspired confidence. Thus, this circumstance duly stood proved on record beyond reasonable doubt by the prosecution.
Circumstance No.2.
21. The factum of accused having contracted second marriage with Ms. Kusum Lata when deceased left for Sirsa is proved on the basis of Pariwar Register, Ext.PW16/A, maintained by Gram Panchayat, Gawahi. This register has been proved on record by Secretary of the Gram Panchayat and a perusal of the same revealed that deceased-Satya Devi and Kusum Lata are recorded as wives of accused-Kalyan ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 23 Singh. PW1-Guman Singh has also stated that accused has contracted second marriage. These facts are duly established .
on record having not been rebutted by any cogent evidence by accused and therefore, it stood proved on record that accused had married again when deceased had left for Dera Sacha Sauda, Sirsa.
of Circumstance Nos. 3 & 4.
22. On the basis of deposition of PW3-Vijay Kumar rt Bhangalia, who runs NGO called ARTI at Rajgarh, PW19- Meera Tomer, who is working as Community Organizer in Nagar Panchayat, Rajgarh, PW20-Tulsi Ram and PW21-Bhagat Ram, who was the Record Keeper of General Record Room, Shimla, these two circumstances have also been duly proved by the prosecution. It has been proved on record that counseling was conducted between deceased and accused by NGO, AARTI. After the said counseling, accused agreed to have the name of his wife and child entered in the Panchayat record but he failed to fulfill his promise, as a result of which, deceased was sent to Totu Shimla under the supervison of Protection Officer, ICDS, Shimla, from where proceedings were filed in the Court at Shimla against accused by the deceased.
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 24The factum of the Court proceedings and the orders passed by various court and the parties entering into compromise in the .
Court of law have remained unrebutted and accordingly these two circumstances were also established on the basis of material produced on record by the prosecution.
Circumstance No. 5.
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23. The factum of deceased having expressed apprehension of danger to her life from her husband has been rt proved by the statements of PW1 and PW3. PW1 stated that when accused took deceased back to his house after the compromise was arrived at in the Court at Shimla, he had also accompanied her to the house of accused and he came back on third day. When he was coming back from the house of accused, his sister told him that she was apprehending danger to her life from the accused person. PW3-Vijay Kumar Bhangalia has also deposed that after deceased and accused entered into compromise at Shimla Court and visited their NGO along with copy of judgment on 9.7.2009 after 3-4 days, he received a telephonic call from deceased, wherein she told him that accused had kept her in a 'Dogri' and he was not talking to her and deceased apprehended danger to her life from the ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 25 accused person. Incidentally, these statements of the witnesses have gone unrebutted in the cross-examination. Thus, this .
particular circumstance also stands established on record, especially in view of the fact that it stands proved that pursuant to the compromise entered into between accused and deceased in the Court at Shimla, accused took her to her of matrimonial house, whereafter she expressed her apprehension to PW1 and PW3 about danger to her life from the accused.
rt Circumstance Nos. 6 and 7.
24. As far as these two circumstances are concerned, PW1 to PW3 and PW14 to PW20 have proved these two circumstances beyond any reasonable doubt. Brother of deceased PW1 had left deceased in the house of accused on 9.7.2009 and returned back to his home on 11.7.2009 and thereafter deceased was not seen dead or alive by any person till her body was exhumed from Panjah Khad. This witness has deposed that accused had made a call to her elder brother and informed him that deceased had gone to Sirsa but when inquiry was made at Sirsa, it was revealed that the deceased was not present there. Thereafter, their sister was not traceable for one year and in these circumstances when they sent Inder Singh to ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 26 the house of accused, he told him that deceased had left his house the very next day, when he had dropped her at his .
house. Similarly, PW2-Inder Singh stated that 10-15 days after his sister was dropped at the house of accused, they came to know that their sister had gone missing. In between accused informed brother of deceased Bhim Singh that deceased had of gone to Sirsa. After 1-2 years when they visited the house of accused, he told them that deceased had gone to Renuka in rt connection with some religious affair. PW3-Vijay Kumar Bhangalia has stated that about three months after the deceased had gone along with the accused, when he contacted the accused and made an inquiry about the deceased, accused told him that deceased had gone to Bhagwat, from where she had fled away with some 'Sadhu' and when he asked accused about lodging of report with the police, the response of the accused was in negative and he immediately disconnected the phone.
25. PW14-Shakuntla Chauhan, who runs NGO and is former Pradhan of Gram Panchayat, Devna has stated that Mohinder Bhangalia had telephonically told her that deceased was missing. She further deposed that accused met him at ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 27 Nohradhar and when she enquired from accused about deceased, accused told her that deceased had gone to Dera at .
Sirsa. Similarly, PW20-Tulsi Ram has stated that 3-4 days after the deceased came back from Shimla, her mobile was found to be switched off and when he made inquiry from accused, he told him that deceased had left for Sirsa leaving the child with of him. On this, inquiries were made at Sirsa and it was found that deceased was not present there.
26. rt In our considered view, it is evident from the statements of these witnesses which have gone unrebutted that deceased was last seen with accused when they came back from Shimla to the house of accused after compromise was entered into between the parties in the Court at Shimla. Further, she was last seen alive with accused on 11.7.2009 and thereafter deceased went missing till her dead body was exhumed from Panjah Khad. From the above, it stands proved on record that accused had given different explanations to different persons regarding the missing of deceased and all explanations given by him in this regard were misleading and false. Therefore, both the above circumstances also stood duly established on record by the prosecution.
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 28Circumstance No.8.
27. As per the prosecution, accused made a disclosure .
statement, Ext. PW5/A, before SI Harpal Singh, PW27, in the presence of PW5-Randhir Chauhan and PW14-Shakuntla Chauhan that he could demarcate the place at Panjah Khad, where the dead body of deceased was buried and it was on the of basis of this disclosure statement, that accused demarcated the place in Panjah Khad in presence of PW1-Guman Singh, PW6- rt Kuldeep Singh, PW7-Vijinder Dutt and PW-8-Devinder Singh Kalta, from where the skeleton of deceased was recovered. The disclosure statement has been recorded in the presence of PW5-Randhir Chauhan and PW14-Shakuntla Chauhan. PW5- Randhir Chauhan is an independent witness and he has mentioned in his statement that on 8.1.2012 he was present in Police Post, Nohradhar in connection with his personal work when accused was in police custody and accused made disclosure statement, Ext.PW5/A, that he could demarcate the place where the dead body of deceased was buried. He further deposed that accused made this statement in the presence of Smt. Shakuntla Chauhan. The veracity of his deposition was not impinged by the defence in the cross-examination and his ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 29 statement inspires confidence and is trustworthy. Similarly, PW14-Shakuntla Chauhan has stated that she is Secretary of .
NGO, Surya and is also former Pradhan of Gram Panchayat, Devna. In her statement, she has stated that in the year 2008 persons of Aarti Organization, Rajgarh had asked her to find out about the report of missing of deceased, on which she visited of PP, Nohra from where she came to know that report regarding missing of deceased had been lodged. She further deposed rt that earlier message was sent to accused, on which accused along with Mohan Lal came to her and she took them to Aarti NGO. On the next day, deceased did not visit as she had gone to Shimla and when she contacted deceased on phone, deceased told her that she did not go to her matrimonial house, as accused had married again and was not treating her well and she wanted maintenance from accused for herself and for her child. She further deposed that after many days Mahinder Bhangalia rang up her and told her that deceased was missing.
Thereafter, accused met her at Nohradhar and when she inquired about deceased, accused told her that deceased had gone to Dera at Sirsa. She has further deposed that on 8.1.2012, she and Randhir Chauhan were joined by police in ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 30 the investigation when accused was in police custody and he made disclosure statement in their presence, which was signed .
by her as well as Randhir Chauhan. She has also deposed that accused had stated that he could get the dead body recovered from Panjah Khad and demarcate the place. The statement of this witness is also trustworthy and inspires confidence, as in of the cross-examination, the defence has not impinged the credibility of this witness.
28. rt PW27-Harpal Singh has stated that on the basis of said disclosure statement, he led police party to Panjah Khad on 11.1.2012, where accused demarcated the place, where the dead body of deceased was buried. The version as put-forth by PW7 regarding disclosure statement, has been fully corroborated by both PW5 and PW14, who were the marginal witnesses of said disclosure statement. Both these witnesses have categorically testified that accused had made disclosure statement in their presence. The version of PW7 with regard to demarcation of the place at Panjah Khad from where the skeleton of deceased was found, is duly corroborated in all its material particulars by the testimony of PW1, Guman Singh, PW6, Kuldeep Singh, PW7, Vijender Dutt and PW8, Devinder ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 31 Kalta. A perusal of statements of these witnesses demonstrates that all have deposed in unison that accused demarcated the .
place at Panjah Khad, where after digging, a human skeleton was recovered. The cross-examination of these witnesses has not been able to lay any foundation for discarding their testimony and thus the defence has not been able to impinge of the credibility of the said witnesses. Incidentally, PW8, Devinder Kalta was posted as Executive-cum-Tehsildar in whose rt presence the dead body of deceased was exhumed. All these circumstances taken together proved beyond any reasonable doubt that the discovery of the skeleton was made in pursuance to the disclosure statement made by accused, thus this circumstance has also been fully proved by the prosecution.
Circumstance No.9.
29. The skeleton was identified by PW1, Guman Singh, to be that of his sister from clothes. He has mentioned that the clothes were the same, which the deceased was wearing on the day when he had dropped her at the house of accused. He has categorically denied in his cross-examination that the skeleton could not be identified. His statement also finds corroborations from the recovery memo of the skeleton, which is Ext.PW6/B, ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 32 which also reflects the clothes which were present on the skeleton on the day when the same was exhumed. The .
testimony of PW1 is also corroborated by DNA report, vide Ext.PW28/N. During the course of investigation, blood samples of the brother of deceased, PW1-Guman Singh and Master Krish son of the deceased and accused were obtained on FTA of cards, Ext. P48 and Ext.P49 by PW24, Dr. Pankaj Chandel.
These samples were sent to FSL, Junga which was preserved rt by PW30, Dr. Sangeet Dhillon, who conducted the post-mortem examination of the said skeleton. Report of the Assistant Director, DNA Division, FSL, Junga demonstrate that DNA profile obtained from the molar teeth of the skeleton was matched with the blood sample of Master Krish and it was found that the same belongs to biological mother of Master Krish.
Thus, from the testimony of PW1 and report of DNA, Ext.
PW28/N, the prosecution has categorically established on record that the human skeleton, which was recovered at the instance of the accused, belongs to his wife i.e. deceased.
Thus, this circumstance has also been duly proved by the prosecution.
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 33Circumstance No. 10.
30. PW30, Dr. Sangeet Dhillon, Assistant Professor in .
IGMC, Shimla had conducted the post-mortem examination of the skeleton of deceased, which was recovered from the Panjah Khad. She has given the opinion that in the absence of soft tissues, it was not possible to ascertain the exact cause of of death, however, the post-mortem findings as evident from head (skull) were consistent with those found in a case of head injury.
rt She has also opined that the injuries described in the post-
mortem report were possible with weapon of offence, Ext. P13, which was shown to her or similar weapon and the injuries sustained by such weapon could result in death. Therefore, this circumstance also stood duly proved beyond reasonable doubt that the death of the deceased was homicidal.
Circumstance No.11.
31. On 13.1.2012, accused while in police custody made a disclosure statement, Ext. PW9/A, before PW28, ASI Dula Ram and on the basis of this disclosure statement, he got iron pipe, Ext. P13, recovered from the house of accused at village Jhalari, vide memo Ext.PW10/A. PW28, ASI Dula Ram has further testified that on 13.1.2012, accused made ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 34 disclosure statement before him in the presence of Sunder Singh and Mohan Lal that he could get the iron pipe recovered .
from his house. The statement of this witness has been duly corroborated in material particular by Mohan Lal, who has deposed as PW9 and was one of the marginal witnesses.
PW10 has also corroborated the case of prosecution, who was of witness to recovery memo, Ext.PW10/A. Incidentally, all these witnesses have been subjected to meticulous and lengthy rt cross-examination on behalf of the accused, but their testimonies has remained unshattered on record. Not only this, the testimony of the said witnesses is otherwise trustworthy and inspires confidence. Therefore, this circumstance has also been established by the prosecution beyond any reasonable doubt.
32. Keeping all the above factors in view, we are of the considered view that in the present case, all the circumstances were duly proved by the prosecution beyond any reasonable doubt connecting the accused with the commission of offence, for which he has been convicted by the learned Trial Court.
Besides this, the learned Trial Court has also meticulously and in a reasoned manner dealt with all issues including all the circumstances and after careful consideration and appreciation ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 35 of all the material placed on record, it has come to the conclusion that the accused was guilty of offence alleged .
against him. Therefore, according to us, there is neither any perversity nor any infirmity with the judgment which has been passed by the learned Trial Court convicting the accused of the offences with which he was charged, as well as with the of sentences which has been imposed by the learned Trial Court upon him. The prosecution has brought home the guilt of the accused rt beyond reasonable doubt and the chain of circumstance has been completed linking the accused with crime beyond all reasonable doubt.
33. As far as the aspect of one of the co-accused having been acquitted by the learned Trial Court, it is settled law that if one co-accused is acquitted and the Court finds that the prosecution has been able to bring home the factum of the guilt of other accused beyond reasonable doubt then the said accused can be duly convicted of the offences alleged against him. Even the factum of the State not having filed appeal against the acquittal of co-accused is no ground to give benefit to the other convict, if cogent evidence is there connecting the other co-accused with the offence.
::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 3634. It is relevant to quote para 23 of the judgment of Hon'ble Supreme Court in Vutukuru Lakshmaiah Vs. State of .
Andhra Pradesh (2015) 11 Supreme Court Cases 102:-
"23. At this juncture, it is worthy to note that the High Court has acquitted A-4, A-8 and A-9 on the foundation that they have been falsely implicated. The learned Senior Counsel for the appellants has contended that when the appellate court had acquitted the said accused persons, there was no warrant to sustain the conviction of the other accused persons. On a perusal of the of judgment of the appellate court, we find that the judgment of acquittal has been recorded on the score that the names of A-8 and A-9 do not find mention in the evidence of PWs 1 to 3. On a similar basis, A-4 has been acquitted. Suffice it to mention here because the High rt Court has acquitted A-4, A-8 and A-9, that would not be a ground to discard the otherwise reliable dying declaration, for the evidence in entirety vividly show the involvement of the appellant-accused."
35. The Hon'ble Supreme Court in Jagtar Singh Vs. State of Haryana, (2015) 7 Supreme Court Cases 675 held as under:-
"21. We are not impressed by the submission of the learned counsel for the appellant when he urged that since the co-accused was acquitted of the charges, hence the benefit of the same be also extended to the appellant.
22. As held above, the evidence on record in no uncertain terms proves that it was the appellant who was the aggressor and hit the deceased. This evidence was rightly made basis by the two courts to hold the appellant guilty for committing the offence in question. When the evidence directly attributes the appellant for commission of the act then we fail to appreciate as to how and on what basis we can ignore this material evidence duly proved by the eyewitnesses. Such was not the case so far as the co-accused is concerned. The prosecution ::: Downloaded on - 15/04/2017 20:34:41 :::HCHP 37 witnesses too did not speak against the co-accused and hence he was given the benefit of doubt. It is pertinent to mention that the State did not file any appeal against his acquittal and hence that part of the order has attained finality."
.
Therefore, in view of the above discussion, we uphold the judgment of conviction passed by the learned Trial Court against the appellant as well as the sentence which has of been imposed upon the appellant by the learned Trial Court and the present appeal is accordingly dismissed.
rt (Sanjay Karol)
Judge
(Ajay Mohan Goel)
Judge
June 13, 2016.
(guleria)
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