Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 22 December, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 4235 of 2013 Reserved on: 16.11.2017 Decided on: 22.12.2017 .
__________________________________________________________ Karan Thakur .....Appellant.
Versus State of Himachal Pradesh ......Respondent. __________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes. __________________________________________________________ For the appellant: Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate.
For the respondent: Mr. V.S. Chauhan, Addl. AG, with Mr. J.S. Guleria, Asstt. AG.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/accused/convict (hereinafter referred to as "the accused") laying challenge to judgment dated 26.10.2013, passed by learned Additional Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 1 of 2013, whereby the accused was convicted for the commission of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 2offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").
2. The background facts, as projected by the prosecution, .
can tersely be summarized as under:
The accused, when in the year 2011, posted as Sepoy Gunner No. 14939093H, Mech. Infantry (7 Grenadier), at Babina Cantt., District Jhansi (U.P.), was in relationship with the deceased, daughter of Shri Yashwant Singh. As per the prosecution case, the accused was in regular touch with the deceased and he was using cell No. 073094-00919. The accused used to make calls to the deceased on her cell No. 98168-46315. On 04.03.2011, when the deceased accompanied the accused to his place of posting, where she stayed for some days, both of them had sexual relation. The father of the deceased, Shri Rakesh Thakur, brought her back and the matter was amicably settled to save the dignity and honour of the deceased. The matter was not reported to the police and it was agreed that the deceased and the accused will neither meet nor have any future contact or relation with each other. In lieu of compromise, the mother of the deceased, Smt. Meera Devi, was paid `25,000/- (rupees twenty five thousand). However, the accused did not desist from calling the deceased. As per the prosecution, on and w.e.f. 23.06.2011 the accused came on leave and on 19.07.2011 he ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 3 met with the deceased at Awah Devi temple, thereafter the deceased went missing. When the deceased did not return home, her mother tried to contract her on cell phone and she came to know that she .
went with the accused. Thereafter, cell phone of the deceased was switched off and the family members started searching her, but in vain. The mother and brother of the deceased repeatedly made phone calls on cellphone of the accused and ultimately on 22.07.2011 he picked up the call, but could not tell about the deceased. Subsequently, the accused told the brother of the ृ ) का जो करना था कर दया है ! आपने जो करना है कर accused "मने ..... (मतक लो!". Despite strenuous efforts of the family members of the deceased, the deceased could not be traced and on 07.09.2011 the mother of the deceased filed a complaint before Superintendent of Police, Mandi, H.P., whereupon FIR No. 207 of 2011, dated 09.09.2011 was registered against the accused under Sections 363, 366, IPC, at Police Station, Sarkaghat, Mandi, H.P. and the investigation ensued. On 10.09.2011, when the police visited house of the complainant, a hand written note of the deceased was given to the police by the complainant, wherein it was written "मने अपना जीवन साथी ढू ढ लया है , इधर उधर फ़ोन मत करना, म फ़ोन कर दं ग ू ी, मेर चंता मत ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 4 करना, म करण के साथ जा रह हू ँ! During the course of investigation, record qua date of birth of the deceased, i.e., copy of pariwar register was procured and on 18.09.2011 police went to Babina Cantt, .
Jhansi, U.P.. It was unearthed that during the period from 23.06.2011 to 22.07.2011 the accused was on leave. The accused was using cell No. 073094-00919 at Babina Cantt, District Jhansi, U.P. The accused was arrested and later on released on bail due to insufficient evidence. On 28.07.2012, a Special Investigation Team (SIT) headed by PSI Sanjeev Kumar was constituted. After careful analysis of the call records, it was unearthed that on 21.07.2011 cell No. 073094-00919, i.e., of the accused, was operating through hand-
set having IMEI No. 910517500060140 and this IMEI number was of hand-set of the deceased, on which she was using cell No. 98168- 46315. On 07.08.2012, the accused, yielded to the intense interrogation of the SIT and confessed that he committed murder of the deceased on 19.07.2011 and disposed her body in a nalla near Hanuman Mandir, at Bassi Bhoranj, District Hamirpur, H.P. Consequently, upon the disclosure statement, so made by the accused, the police obtained permission of Naib-Tehsildar, Bhoraj, District Hamirpur, H.P., for accompanying them and exhuming the dead body of the deceased. The accused led the police team to Village Takota Brahmana, near Hanuman Mandir, where he got ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 5 them identified a cave, near a nallah. At the instance of the accused, digging was done and some bones of human skeleton were exhumed.
As the digging work was being done during night, the same was .
stopped and decided to be resumed on the subsequent morning in presence of witnesses. The recovered bones were collected and put in box and the spot was preserved and guarded. On 08.08.2012, police called the complainant on the spot and exhuming operation was resumed around 09:30 a.m. in presence of the complainant (mother of the deceased), Jagar Nath (relative of the deceased), Rattan Lal, Naib-Tehsildar, Bhoranj and the police personnel.
During the digging skeleton remains of human body alongwith female clothes and ornaments on the body were recovered. The complainant identified the clothes and other remains, viz., silver ring, two black sacred threads tied on the ankles of the skeleton as that of her daughter (deceased). The exhuming operation was videographed and photographs of the skeleton remains and bones were also taken. Femur bone was separated for conducting DNA profiling and rest of the articles were packed in separate cloth parcels, which were stitched and sealed and were taken into possession vide recovery memo. The police prepared the spot map of the place of exhumation and the skeleton remains were sent for postmortem examination to Department of Forensic Medicine, IGMC, ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 6 Shimla. As per the postmortem examination report, the skeletal remains were of a female, aged around 20-22 years, having living height of around 160.89 +/- 5 cms, consistent with Indian race with .
no other identification features other than the belongings and no injuries were present on the skeletal remains. The cause of death could not be opined and the deceased might have died at least more than six months before the examination. On 13.08.2012, blood sample of the Meera Devi (complainant and mother of the deceased) was taken at Civil Hospital Sarkaghat and the same was sent for DNA profiling to State F.S.L., Junga. Pursuant to order of District Magistrate, Hamirpur, dated 26.09.2012, FIR No. 207/11, dated 09.09.2011, registered under Section 302 IPC at Police Station, Sarkaghat, was transferred to Police Station Bhoranj, District Hamirpur, H.P., and FIR No. 194/12, dated 27.09.2012, was registered at Police Station Bhoranj, District Hamirpur, H.P., under Section 302 IPC. The police of Police Station, Bhoranj, procured billing addresses and CDRs of mobile SIM No. 88946-77707, 98168- 46315 and 073094-00919. After investigation, it was found that the accused had committed the murder of the deceased on 19.07.2011 and buried her body at Village Takota Brahmana, near Hanuman Mandir in a nallah at Bassi Bhoranj, Hamirpur. After conclusion of investigation, challan was presented in the Court.
::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 73. The prosecution, in order to prove its case, examined as many as twenty five witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty.
.
The accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated 26.10.2013, convicted the accused for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of `50,000/- (rupees fifty thousand). The fine amount, if realized, was ordered to be paid as compensation to the complainant, hence the present appeal maintained by the accused (convict).
5. The learned Senior Advocate for the appellant has argued that there is no evidence against the appellant, as the circumstances, which emerge in no way connect the accused with the guilt. He has further argued that DNA profile of the deceased did not match with the DNA profile of her mother. The disclosure statement allegedly made by the accused is also full of discrepancies and even the recovery of the skeleton of the deceased has not been proved, as the Naib-Tehsildar, in whose presence the recovery is stated to have been effected, has specifically stated that on the next morning by the time he reached the spot, the skeleton was already exhumed. The learned Senior Counsel has argued that in these ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 8 circumstances, the only conclusion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Thus, the accused be acquitted after setting-aside the .
judgment of conviction, so passed by the learned Trial Court.
Conversely, the learned Assistant Advocate General has argued that the chain of circusmtances is complete and no link is missing. He has further argued that the circumstantial evidence, which has come on record, not only connects the accused with the commission of crime, but it also proves that the accused has committed the murder of the deceased. The deceased was in love relation with the accused and as the accused wanted to get rid of the deceased, he killed her.
He has further argued that if the prosecution has failed to prove the motive of the accused in killing the deceased, even then other circumstantial evidence, including the disclosure statement made by the accused, when he was in custody, leads to only conclusion that the accused has killed the deceased. In rebuttal, the learned Senior Advocate has argued that there is no evidence to come to the conclusion that the skeleton exhumed was of Shashi Devi (deceased).
He has further argued that there is no evidence on record to connect the accused with the alleged commission of the offence, as alleged.
6. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 97. After going through the record, it is clear that the case of the prosecution rests upon the circumstantial evidence and as far as the law qua circumstantial evidence is concerned, the same in nitty-
.
gritty is that each and every circumstance is required to be proved by the prosecution and the circumstances, as a whole, have to make out a chain in a manner that the only conclusion is that the accused has committed the crime. The law on the point of circumstantial evidence is considered and settled by the Hon'ble Courts in the following judgments:
1. State of H.P. vs. Sunil Kumar, r Criminal Appeal No. 326 of 2011, decided on 15.06.2017;
2. Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622;
3. Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme Court 79;
4. State of Uttar Pradesh vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, &
5. Rajdev aliasRaju & another vs. Stae of H.P., Criminal Appeal No. 288 of 2015.
8. In State of H.P. vs. Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017, this Court has held as under:
"13. It is more than settled that in case of circumstantial evidence, the circumstances from which interference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there be a complete chain of evidence ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 10 consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the .
accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un-erringly pointing out towards the guilt of the r accused.
iii) The circumstances taken
cumulatively, should form a
complete chain so that to come to the conclusion that the crime was committed by the accused.
14. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
15. In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 11 Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173)."
9. The Hon'ble Supreme Court in Sharad Birdhichand .
Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close r relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.
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150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view.
.
What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
... ... ... ... ... ...
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 13
159. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and .
circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case (AIR 1981 SC 765) (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to r the guilt of the accused."
160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."
10. The Hon'ble Supreme Court in Padala Veera Reddy vs. ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 14 State of Andhra Pradesh and others, AIR 1990 Supreme Court 79, has held as under:
.
"12. There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, PW-8 and brother PW-9 claiming exclusive possession of the disputed land, that the deceased was found dead on the morning of 7.9.85 and that there were certain visible injuries such as abrasions, nail marks and contusions on the part of the nose, upper lip, chin and r neck etc. as noted by the Medical Officers (PWs 5 and 6) in the post-
mortem report Ex. P. 9. The appellate Court on the strength of the opinion given by the Medical Officers (PWs 5 and 6) has agreed with the view of the Trial Court that the death of the deceased was of homicidal one and not suicidal and held "therefore suicidal is ruled out." We also very carefully went through the evidence of the Medical Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.
... ... ... ... ... ...
15. While considering the above circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 15 house of PW-1 throughout the night is nothing but a false explanation and that the culprits who ever they might have been should have administered the poison to the victim and thereby caused her death .
and that there is very strong suspicion against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:
"There is no evidence whatsoever either from the neighbours or from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these r circumstances, it is not possible to hold that the prosecution has established the guilt on the part of A. 1 to A. 3. Thus, there is no conclusive evidence that the accused committed the offence of murder. It is an unfortunate case where cold- blooded murder has been committed and it is difficult to believe that no inmate of the house had any hand in the offence of murder. But that will be only a suspicion which cannot take the place of proof."
16. We, in evaluating the circumstantial evidence available on record on different aspects of the case, shall at the foremost watchfully examine whether the accused 1 to 3 had developed bad-
blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 16 wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the .
landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill-
treated either by her husband or in-
laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill-treated the deceased, which observation we have extracted above. Hence, we hold that there is no sufficient material to warrant a conclusion that the accused had any motive to snatch away the life threat of the deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the scene house and that she has been done away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life. As observed by the appellate Court, the explanation offered by accused 1 to 3 that they remained in the house of PW 1 throughout the night is too big a pill to be swallowed. But at the same time, in our view, this unacceptable explanation would not lead to any irrestible inference that the accused alone should have committed this ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 17 murder and have come forward with this false explanation. We have no hesitation in coming to the conclusion that it is a case of murder but not a suicide as we have pointed out supra. The placing of .
the tin container with the inscription 'Democran, by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body. Even if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Ex. P. 6 to P. 8 alleged to have been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No. 1 in this written statement is that by about the time of the arrival of the police, one Sathi Prasad Reddy handed over these letters to him saying that he (Reddy) found them near the place where the dead body was laid and that he (A-1) in turn handed over them to the police. PWs 8 and 9 have deposed that these letters are not under the hand writing of the deceased. But the prosecution has not taken any effort to send the letters to any hand-writing export for comparison with the admitted writings of the deceased with the writings found in Ex. P. 6 to P. 8.
::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 18Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.
.
17. No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that all the accused or any of them are the real culprits. The circumstances indicated by the learned Counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime.
r In our view, they are not.
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22. We are of the firm view that
the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them committed the murder of the deceased, Vijaya punishable under Section 302 read with Section 34 of I.P.C. or the offence of cruelty within the mischief of Section 498- A I.P.C. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference."
11. The Hon'ble Supreme Court in State of Uttar Pradesh vs. Ram Balak & another, (2008) 15 Supreme Court Cases 551, has held as under:
"12. So far as the last seen aspect is concerned it is necessary to take ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 19 note of two decisions of this Court.
In State of U.P. v. Satish, it was noted as follows:
"22. The last seen theory comes into play where the time-gap .
between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence r of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
13. In Ramreddy Rajesh Khanna Reddy v. State of A.P., it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in ::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 20 such a case the courts should look for some corroboration."
(See also Bodhraj v. State of J&K, (2002) 8 SCC 45) .
14. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 12 SCC 438. Factual position in the present case is almost similar, so far as time gap is concerned.
15. Out of the circumstances highlighted above really none is of any significance. Learned Counsel for the appellant-State highlighted that the extra judicial confession itself was sufficient to record the conviction. On a reading of the evidence of CW-1 it is noticed that accused Ram Balak did not a say a r word about his own involvement. On the contrary he said that he did not do anything and made some statements about the alleged act of co-accused. Additionally, in his examination under Section 313 of Code, no question was put to him regarding his so called extra judicial confession. To add to the vulnerability, his statement is to the effect that after about 11 days of the incidence the extra judicial confession was made. Strangely he stated that he told the police after three days of the incidence about the extra judicial confession. It is inconceivable that a person would tell the police after three days of the incidence about the purported extra judicial confession which according to the witness himself was made after eleven days. Learned Counsel for the State submitted that there may be some confusion. But it is seen that not at one place, but at different places this has been repeated by the witness.
::: Downloaded on - 22/12/2017 23:06:53 :::HCHP 2116. Learned Counsel for the appellant also refers to a judgment of this Court in Abdul Razak Murtaza Dafadar v. State of Maharashtra, more particularly para 11 that the Dog Squad had .
proved the guilt of the accused persons. In this context it is relevant to take note of what has been stated in para 11 which reads as follows:
(SCC pp. 239-40) "11. It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in r Scotland it has been admitted. But in the United States there are conflicting decisions:
'There have been considerable uncertainty in the minds of the Courts as to the reliability of dogs in identifying criminals and much conflict of opinion on the question of the admissibility of their actions in evidence. A survey of the cases however, reveals that most Courts in which the question of the admissibility of evidence of-trailing by blood-hounds has been presented take the position that upon a proper foundation being laid by proof that the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the person trailed was the guilty ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 22 party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant .
with the Crime.' (para 378, Am. Juris. 2nd edn. Vol. 29, p.
429.) There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-
examination, the dog s human companion must go into the box and report the dog s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. In R. v.
Montgomery,1866 NI 160 a police constable observed men stealing wire by the side of a railway line.
They ran away when he approached them. Shortly afterwards the police got them on a nearby road. About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked continuously until he stopped in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 23 was crucial to sustain the conviction. In these circumstances the Court of Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog s reactions .
was properly admitted. The Court did not regard its evidence as a species of hearsay but instead the dog was described as "a tracking instrument and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dog s evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But Dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-
deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight.
It is submitted by learned Counsel for the appellant that in the said case this Court had upheld the conviction. Though in the said case the conviction was upheld, but that was done after excluding the evidence of Dog Squad. This Court found that the rest of the prosecution evidence proved the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 24 charges for which the appellants therein had been convicted."
12. This Court in Rajdev alias Raju & another vs. State of H.P., Criminal Appeal No. 288 of 2015, decided on 30.05.2016, .
has held as under:
51. 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 record a finding of guilt of the accused Manoj Sahani and the accused Manoj Sahani is entitled to r get the benefit of doubt."
13. After touching the different aspects relating to the law laid down by Hon'ble Courts on the subject of circumstantial evidence, the testimonies of the prosecution witnesses need discussion and analysis.
14. PW-1, Shri Sanjay Kumar, was associated by the police in the investigation on 10.09.2011 and in his presence the complainant (mother of the deceased) produced a paper slip, mark 'A', allegedly written by the deceased and the same was taken into possession vide seizure memo, Ex. PW-1/A. As per this witness, he and brother of the deceased signed seizure memo, Ex. PW-1/A. PW-
2, Shri Ramesh Chand (father of the accused) deposed that he is not ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 25 aware about the cell number of the accused. This witness was declared hostile and he, in his cross-examination, has deposed that he used to receive phone calls of his son from cell No. 7309400919.
.
He has further deposed that he has no knowledge that the accused was also keeping another cell having number 9598829650. He has deposed that the accused used to change his cell numbers during his postings at different places.
15. PW-3, Ms. Priyanka Thakur, younger sister of the accused, deposed that in the year 2011 the accused was posted in Jhansi, U.P.. She has further deposed that in the year 2011 her cell number was 8894677707 and she used to talk with the accused on cell phone of her father. The accused never called her on her cell number. This witness was also declared hostile and she, in her cross-examination, has denied that cell number of the accused was 7309400919. As per this witness, during the period from June-July, 2011, the accused had come home on leave. She has denied that during the leave period the accused used cell No. 8894677707. She knew the deceased and at times used to call her. She denied that the accused used to talk with the deceased from her cell number.
She admitted that accused had cell number 9598829650. She has also denied that during the period from 23.06.2011 to 19.07.2011 the accused made frequent calls to the deceased from cell number ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 26 8894677707 to cell No. 9816846315, i.e., of the deceased. As per this witness, Shri Sandeep Kumar, brother of the deceased used to call her from cell number 9129241325 and he was having another .
cell number 9816846315. She has further deposed that Shri Sandeep Kumar gave her a mobile phone of "Nokia" without SIM card and the accused took that handset with him after his leave.
16. PW-4, Naib Subedar P.B. Shajilal, deposed that in the year 2011 the accused was posted as Sepoy Gunner No. 14939093H at Babina Cantt. U.P. and he was Platoon Commander of Alpha Company. As per this witness, the accused was on thirty days' annual leave w.e.f. 23.06.2011 to 22.07.2011. Leave certificate is Ex. PW-4/C. He has further deposed that the accused availed four days' casual leave w.e.f. 07.03.2011 to 10.03.2011 with permission to prefix 06.03.2011 and to this effect leave certificate is Ex. PW-
4/D. The accused also availed fifteen days' annual leave w.e.f.
13.05.2011 to 27.05.2011 and qua this leave certificate is Ex. PW-
4/E.
17. PW-5, Shri Malkiat Singh, deposed that the deceased was known to him and her cell number was 9816846315. He used to talk with her on this number. As per this witness, during the year 2010-11 the deceased disclosed that she is in love with the accused.
This witness, in his cross-examination, has deposed that cell No. ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 27 9816846315 was of the brother of the deceased. He has further deposed that the deceased was interested to marry him, but due to her relations he refused. PW-6, SI Kirpal Singh, deposed that the .
accused made a disclosure statement, Ex. PW-6/A, under Section 27 of the Indian Evidence Act disclosing that he has buried the dead body of the deceased in a nallah near Hanuman Temple at Bassi Bhoranj and he can get the same recovered. He has further deposed that he signed the disclosure statement as a witness and Constable Hardev Singh of Police Station Sarkaghat was also present there.
This witness, in his cross-examination, has deposed that disclosure statement, Ex. PW-6/A, was made by the accused at 4 p.m.
18. PW-7, Shri Rattan Lal Thakur, Naib Tehsildar, deposed that on 07.08.2012, around 10:45 p.m., SHO Police Station, Bhoranj, alongwith SHO Police Station, Sarkaghat, came to his residence with application, Ex.PW-7/A, seeking permission to trace the dead body of the deceased. He has further deposed that a simultaneous request seeking his presence for the identification of the spot and recovery of the dead body was also made. He allowed the application and accompanied the police personnel to the spot.
As per this witness, they went to a cave in Kukkad nallah. In his presence the accused identified the place where he had buried the deceased after killing her. The police prepared spot identification ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 28 memo, Ex. PW-7/B, in his presence, which bears his signatures.
The digging was started, which continued till 1 a.m. and few skeleton bones were recovered and put in a box. As per this witness, as it .
was dark, the digging was stopped and it was decided to resume the digging work in the morning. They left the spot and guards were deputed on the spot. On the subsequent morning, as decided, he reached the spot around 09:45 a.m., but by that time, the police had already completed the digging work and recovered the skeleton remains of the human body. He has further deposed that alongwith the skeleton remains, the police had also recovered salwar, kameez of light green colour, human hair, a silver ring alongwith black threads tied on the ankle of the skeleton. The complainant (mother of the deceased) identified the clothes and other remains as that of the deceased. The recovered skeleton remains alongwith other articles were put in a carton box and a bone was separated for the purpose of DNA examination, which was packed in a separate cloth parcel and stitched. The said parcel was sealed with four seals having impression 'V' and taken into possession vide seizure memo, Ex. PW-7/C. The police also took photographs of the skeleton and the digging process was videographed. This witness, in his cross-
examination, has deposed that he received a phone call from SDM, Bhoranj, to allow application, Ex. PW-7/A. On 08.08.2012 by the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 29 time he reached the spot, the digging operation was complete. He has further deposed that on 07.08.2012 the police insisted to identify the spot, as it was directed by their superiors. As per this .
witness, photographs were taken by police officials and by some other persons, who was not the police official. Likewise, videography was done by the police officials and by a person with his cell phone. He has further deposed that no seizure memo was prepared qua the bones which were recovered during the night of 07.08.2012. He signed two documents on 07.08.2012. As per this witness, accused, in his presence, made a statement disclosing that he after killing the deceased buried her dead body on the spot, whereas in his statement recorded under Section 161 Cr.P.C. it is not so recorded.
19. PW-9, Shri Baldev Singh, Patwari, on directions of Tehsildar issued jamabandi for the year 2005-06, Ex. PW-8/A, and aks sajra, Ex. PW-8/B. PW-9, Shri Shashi Kant Verma, Nodal Officer, Idea Cellular Limited, deposed that on being requested by the police, he traced that cell No. 917309400919, which was outstation number of Idea Cellular, U.P. (East Circle), was operating in IMEI No. 910517500069140. He has further deposed that the aforesaid cell No. received SMS from Cell No. 919232232665 on 21.07.2011 at 10.05. a.m. in H.P. Circle. He has issued his report, ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 30 which is Ex. PW-9/A. He has not stated anything that in whose name cell No. 917309400919 is registered. PW-10, HC Hoshiar Singh, is a formal witness. In his presence PSI Sanjeev Kumar, .
handed over postmortem report and two VCDs to Inspector Mohinder Singh, SHO, Police Station, Bhoranj, Hamirpur, vide seizure memo, Ex. PW-10/A.
20. PW-11, HHC Dharam Singh, Malkhana Moharar/Addl.
MHC, Police Station, Sarkaghat, deposed that on 08.08.2012, PSI Sanjeev Kumar handed over and deposited the following articles:
1. One carton box sealed in a cloth parcel r with 8 seals of impressions 'V' containing skeleton remains, clothes, ornaments and black thread of a female;
2. One cloth parcel sealed with 4 seals bearing impression 'V' containing bone of the skeleton; &
3. Sample seal impression 'V' on the piece of cloth.
He made requisite entries qua the deposit of the above parcels at Sr. No. 934/12, column No. 4, of Malkhana Register No. 19, which he brought in the Court. Extract of entry is Ex. PW-11/A. He has further deposed that on 16.08.2012, the sealed parcels, for being deposited in Forensic Medicine, IGMC, Shimla, vide RC No. 184/12, dated 16.08.2012, were handed over to HHC Nanku Ram. Copy of RC No. 184/12 is Ex. PW-11/B. On 21.09.2012, HHC Suresh Kumar, came with the sealed parcels and postmortem report and he ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 31 handed over the following parcels:
1. One sealed carton box bearing 3 seals of 'DKG' containing skeleton remains;
2. One sealed cloth parcel bearing 10 seals of impression 'DKG' containing clothes;
.
3. One sealed cloth parcel bearing 4 seals of impression 'DKG' containing PMN;
4. One sealed cloth parcel bearing 3 seals of impression 'DKG' containing sacred thread;
5. One sealed cloth parcel bearing 3 seals of impression 'DKG' containing finger ring; &
6. One sealed cloth parcel bearing 6 seals of impression 'DKG' containing left femur.
He made the required entries in the malakhana register, i.e., Ex. PW-
11/A. He has further deposed that on 04.10.2012, sealed parcel containing left femur was sent to FSL, Junga, through Constable Manish Kumar, vide RC No. 232/12, dated 04.10.2012, copy of which is Ex. PW-11/C, for DNA profiling.
21. PW-13, Shri Guri Singh, Panchayat Secretary, Gram Panchyat Cholthara, on being requested by the police, prepared and issued date of birth certificate of the deceased, which is Ex. PW-
13/B. Likewise, he also prepared and issued copy of pariwar registered, which is Ex. PW-13/C. PW-14, Shri Devinder Verma, Nodal Officer, Bharti Air Tel Limited, provided billing address and CDRs of mobile SIM No. 88946-77707, w.e.f. 21.06.2011 to 22.07.2011. As per this witness, cell No. 88946-77707 was issued ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 32 in the name of one Priyanka Thakur, daughter of Ramesh Thakur, village & Post Office Chamboh, Tehsil Bhoranj, District Hamirpur, H.P. He has also provided billing address and CDRs of mobile No. .
98168-46315. As per this witness this mobile number was issued in the name of Sandeep Kumar son of Jaswant Singh, resident of Village Karyal, Tehsil Sarkghat, District Mandi.
22. PW-15, HHC Nanku Ram, is a formal witness. He has deposed that on 16.08.2012, HHC Dharam Singh, Malkhana Muharar/Addl. MHC, P.S. Sarkghat, gave him two parcels, which he deposited on the same day in Department of Forensic Science, IGMC, Shimla. As per this witness, copy of RC No. 184/12, dated 16.08.2012, vide which parcels were handed over to him is Ex. PW-
11/B. He handed over the receipt qua deposit of the parcels to HHC Dharam Singh on the same day. The parcels remained intact under his custody. PW-16, Shri Kamlesh Kumar, deposed that Shri Sandeep Kumar (brother of the deceased) called him and disclosed that the deceased had gone with a boy, who is serving in Army and now she is back to Hamirpur. He along Sandeep and Meera Devi (complainant) went to Hamirpur and met Shri Ramesh Chand, father of the accused. In his presence compromise took place, which is Ex.
PW-16/A, and he signed the same as a witness. His signatures are in encircled red, which is Ex. PW-6/A. A sum of `25,000/- (rupees ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 33 twenty five thousand) was paid to the mother of the deceased and complainant party agreed not to report the matter to the police.
23. The complainant, Smt. Meera Devi (mother of the .
deceased), who is key prosecution witness, was examined as PW-17.
As per this witness, the deceased and the accused were having love affair and in the month of March, 2011, the accused took the deceased to Gwalior (M.P.), where he was serving in Army.
Subsequently, father of the accused, Shri Ramesh Thakur, brought the deceased back. She entered into a compromise with Ramesh Thakur, which is Ex.PW-16/A, and took `25,000/- (rupees twenty five thousand) for not reporting the matter to the police. She has further deposed that the accused talked with her twice and disclosed that he is interested to marry the deceased, but his parents are not willing. Thereafter the accused came on leave and the deceased met him at Awahdevi. She was told by the deceased that on 18.07.2011 the accused called her at about 09:30 p.m. and asked her to meet him at Awahdevi on 19.07.2011. On the subsequent morning, the deceased, wearing a new suit, went to Awahdevi and she did not return. She contacted the deceased on her cell phone around 12:30 p.m. and the deceased informed her that she is in the vehicle of the friend of the deceased. Thereafter, she repeatedly telephoned her, but the mobile of the deceased went out of coverage area. She ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 34 lodged a missing complaint qua the deceased. She has further deposed that as the whereabouts of the deceased could not be traced upto September, 2011, she moved a complaint/application before .
Superintendent of Police, Mandi, which is Ex. PW-17/A. When the police came to her house, she handed over a handwritten note of the deceased, which she found beneath her pillow. The said note disclosed that the deceased had gone with the accused. The said note was taken into possession vide seizure memo, Ex. PW-1/A. Initially, the accused was arrested, however, he was released later on. A year later police came to her house and told that they have suspicion that the accused had killed the deceased. Subsequently, through the police, she came to know that the accused had confessed his guilt. She was called by the police and she alongwith her brother, Shri Jagar Nath, went to Bassi nallah near Hanuman Mandir, where police had employed two labourers for digging and the digging work was in operation. During the digging operation, skeleton remains of a female wearing light green colour suit were recovered and a silver ring with a black stone was also recovered.
The skeleton remains had black sacred thread tied on the ankles.
She, on the basis of clothes and ornaments, identified the skeleton remains as that of the deceased. The police put the skeleton remains in a carton box and a bone was separately taken out for the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 35 purpose of DNA examination. As per this witness, the said carton box was packed in a white cloth, which was sealed and the same was taken into possession vide seizure memo, Ex. PW-7/C. She has .
further deposed that after 4-5 days she was again called by the police for taking her blood sample for DNA analysis. She was taken to Government Hospital, Sarkaghat, where her blood sample was taken. This witness, in her cross-examination, has deposed that she was called after disclosing that the skeleton has been traced.
24. PW-18, Shri Sandeep Thakur (brother of the deceased), deposed that in the month of July, 2011, the accused had come on leave and he met him at Awahdevi temple, where he told him that he is interested in marrying the deceased, but his parents are not willing. He has further deposed that on 19.07.2011 the deceased went missing. After 3-4 days a missing report was lodged and they had suspicion that the accused was involved in the incident. As per this witness, 2-3 months later his sister again went missing and the complainant lodged complaint, Ex. PW-17/A, with Superintendent of Police, Mandi, and the investigation ensued. His mother (complainant) handed over to police a handwritten note of the deceased, which is Ex. PW-17/B, and the same was taken into possession vide seizure memo, Ex. PW-1/A. He has further deposed that after 2-3 days, when the deceased went missing, he telephoned ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 36 the accused on his cell No. 07309400919 from his cell No. 9129241325 and the accused told him that he had done away with the deceased and he can do whatever he wants to do. On .
19.07.2011, around 12:30 p.m., he telephoned the deceased and she informed him that she is with the accused in a vehicle of his friend.
As per this witness, the accused, whenever he used to come on leave, used to call the deceased from cell No. 08894677707 and the same was of his sister, Ms. Priyanka Kumari. He has deposed that the accused prior to 19.07.2011 took the deceased to Gwalior, wherefrom father of the accused brought her back and compromise, Ex. PW-16/A, was entered into. Subsequently, he came to know that the accused killed the deceased and also disposed of her dead body at Bassi nallah. This witness, in his cross-examination, has deposed that the handwritten note, Ex. PW-17/B, was recovered by the police from the room of the deceased. He denied that the deceased went missing on 22.07.2011.
25. PW-19, Constable Manish Kumar, is a formal witness.
He, while posted as Malkhana Muharar/Addl. MHC, Police Station, Sarkaghat, was handed over two sealed parcels by HHC Dharam Singh, vide RC No. 232/12, dated 04.10.2012, copy of which is, Ex.
PW-11/C. He deposited the same in FSL, Junga, and the parcels, under his custody, remained intact. PW-20, ASI Om Parkash, ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 37 deposed that on 09.09.2011, ASI/SHO Rajinder Kumar, handed over the case file of the present case to him and he went to the house of the complainant. He has further deposed that the complainant .
produced a hand written note of the deceased, which is Ex. PW-
17/B, and the same was taken into possession vide seizure memo, Ex. PW-1/A. He also prepared the spot map, Ex. PW-20/A and recorded the statements of the witnesses under Section 161 Cr.P.C.
As per this witness, he also collected the records qua date of birth of the deceased and copy of the pariwar register. On 18.09.2011, he also went to Babina, District Jhansi, U.P., and procured the leave record qua the accused. He, after completing the investigation handed over the case file to SI Kripal Singh, Additional SHO, Police Station, Sarkaghat. This witness, in his cross-examination, has deposed that cell number of the accused, i.e., 8894677707, was put on surveillance. As per this witness, the deceased did not have any SIM card on her own name and she was using cell number 9816846315, which was in the name of her brother, Shri Sandeep Thakur.
26. PW-21, ASI Rajinder Kumar, deposed that for further investigation the case file was handed over to him. After procuring the arrest warrant, he reached Babina, District Jhansi, U.P., on 01.02.2012, but by that time the accused had already proceeded on ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 38 leave for a month. As per this witness, the accused was using cell No. 7399400919 and the same was issued in the name of Jyoti Soni, daughter of Shri Lakhan Lal, resident of Babina Cantt. District .
Jhansi. In his investigation it has come that Jyoti Soni had been married two years back and the above cell number was not issued in her name. The accused, after his arrest, disclosed that whenever he used to come home, he used to use cell number, i.e., 8894677707 of his sister. The accused used to call the deceased from this number.
On receipt of application of the complainant, he registered FIR No. 207/11, dated 09.09.2011, which is Ex. PW-21/C. PW-22, HC Ashok Kumar, deposed that on 04.07.2012 a special team was constituted and on 06.07.2012 he went to Babina, District Jhansi, for investigating the matter. After associating the accused in the investigation, he returned on 14.07.2012. In his investigation it was unearthed that many calls have been exchanged between cell number 98176-45093 and 98168-46315, i.e. the cell number of the deceased. As per his investigation, cell number 98176-45093 was issued in the name of Shri Malkiat Singh, resident of village Shahpur, District Kangra, HP. After completing the investigation, he handed over the case file to PSI Sanjeev Gautam, Police Station Sarkaghat.
27. PW-23, Dr. Piyush Kapila, Assistant Professor, ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 39 Department of Forensic Medicine, IGMC, Shimla, conducted the postmortem examination of skeletal remains allegedly recovered at the instance of the accused from village Takota Brahmana nallah, .
District Hamirpur. As per his report, Ex. PW-23/A, he observed as under:
"A Human, female of around 20-22 years of having living height of around 160.89+/-5 cms, consistent with Indian Race with no other identification features other than the belongings and no injuries present on the skeletal remains, and where cause of death cannot be opined, and who might have died at least more than 6 months before r the examination."
28. PW-24, Inspector Mohinder Singh, deposed that on 07.08.2012 the police personnel from Police Station Sarkaghat alongwith the accused came to Police Station Bhoranj and they apprised him that on the basis of the information given by the accused, the dead body of the deceased is to be exhumed from Tikkar road, which falls in his jurisdiction. Thereafter, application, Ex. PW-7/A, was moved to Naib Tehsildar, Bhoranj, seeking his permission to exhume the dead body. The accused led the police party to a cave near Hanuman Mandir, Village Takota Brahmana and identified a spot. Pursuant to identification of the spot by the accused, spot map, Ex. PW-7/B, was prepared, which bears his and the signatures of the Executive Magistrate-cum-Naib Tehsildar, Bhoranj. The digging work was started and some skeleton bones ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 40 were recovered. The digging was stopped and the recovered bones were kept in a carton box and it was decided to resume the digging in the next morning. The police deputed a guard for protection of .
the spot. On the subsequent morning, he did not join the investigation. This witness investigated the matter after the case was transferred on 27.09.2012 from Police Station Sarkaghat to Police Station, Bhoranj. He registered FIR under Section 302 IPC and procured the postmortem report of the deceased. He also recorded the statements of the witnesses. This witness, in his cross-
examination, has deposed that no private person was deployed during the night for digging work and the bones were recovered from the sand.
29. PW-25, SI Sanjeev Kumar, headed the Special Investigation Team, which was constituted by Superintendent of Police, Mandi. He has deposed that during his investigation he found that cell number 7309400919 was being used by the accused in Uttar Pradesh and it was operating in cell phone set with IMEI No. 9105175000069140 and said cell phone set was of the deceased, on which she was using her cell number 98168-46315. He has further deposed that after going through the CDRs of cell number 7309400919, 9816846315 and 8894677707 he proceeded with the investigation. He called the accused on 07.08.2012 in Police Station, ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 41 Sarkaghat, for interrogation, when he had come on leave. The accused confessed his guilt. This witness reiterated the prosecution story qua recovery of skeleton etc., so his version, being repetitive in .
nature qua that aspect of the prosecution case, is deliberately left.
He has deposed that pursuant to the spot identification by the accused, memo, Ex. PW-7/B, was prepared in presence of Shri Ratttan Lal Thakur, Executive Magistrate, Bhoranj, and Inspector Mohinder Singh, SHO, Police Station, Bhoranj. This witness, in his cross-examination, has deposed that officials of P.O. Cell-A on 07.08.2012, around 5-6 p.m., met the accused at Sarkaghat and the accused was arrested after 1½ hours of interrogation. As per this witness, the disclosure statement of the accused was recorded immediately after his arrest. He has further deposed that the father of the accused was informed about the arrest of the accused at about 07:30 p.m.
30. Before analyzing the prosecution evidence, some vital aspects of the prosecution case need discussion. It has come on record that earlier the deceased had eloped with the accused and the accused took her to his place of posting, i.e., Jhansi, U.P., where he was serving in the Army. It has also come on record that father of the deceased brought the deceased back. Thereafter, the parties entered into a compromise and the matter was not reported to the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 42 police. The complainant, who is mother of the deceased, while appearing in the witness-box, as PW-17, has deposed that the father of the accused gave `25,000/- as compensation, at that time, but .
this fact has not been mentioned in the compromise.
31. In the present set of circumstances, DNA report, Ex. PX, could have been conclusive piece of evidence, but the same is of no avail, as DNA report, Ex. PX, demonstrates as under:
"Observations:
i) Exhibit-1 (femur bone) did not yield good quality DNA despite repeated efforts. The isolated DNA was highly degraded as visualized by 0.8% agarose gel electrophoresis. The DNA did not show any amplification of fifteen autosomal STRs AmpF/STR Identifiler Plus ® PCR Amplification Kit, hence a STR- DNA profile could not be generated. Only Amplification of amelogenin (X) was visible which indicates that the bone belongs to a female.
ii) Exhibit-1 (Blood sample of Meera Devi on FTA card) yielded good quality DNA and was possible to amplify all the fifteen autosomal STR loci and amelogenin with AmpF/STR Identifiler Plus ® PCR Amplification Kit.
Conclusions:
On the basis of the above analysis performed on the aforesaid exhibit, it concluded that:
1. Exhibit-1 (femur bone) did not yield amplifiable DNA with the available technology in the laboratory despite repeated and extensive efforts; and hence no STR DNA profile could be generated. Only amplification of amelogenin (X) was visible which indicates that the bone belongs to a female. No, further opinion is possible."
32. The learned Senior Counsel for the accused, in order to strengthen his arguments, has placed reliance on the following ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 43 judicial pronouncements:
1. Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842;
2. Surinder Pal Jain vs. Delhi Administration, AIR 1993 SC 1723;
.
3. Tarseem Kumar vs. The Delhi Administration, AIR 1994 SC 2585;
4. 2002(2) SCC 426
5. Sashi Jena & others vs. Khadal Swain & another, 2004(4) SCC 236;
6. Mohd. Faizan Ahmad alias Kalu vs. State of Bihar, 2013(2) SCC 131;
6. Anvar P.V. vs. P.K. Basheer & others, 2014(10) SCC 473; &
7. Tomaso Bruno & another vs. State of Uttar Pradesh, 2015(7) SCC 178
33. In Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842, the Hon'ble Supreme Court, vide para 6, has held as under:
"6. These principles were reiterated by this Court in Shivaji Saheb Rao Bobde v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) wherein it was emphasized that where the prosecution rests merely on circumstantial evidence, the facts 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. The Court further observed that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion consistent with the innocence of the accused and the circumstances must show that in all human probability the act must have been done by the accused. These principles have been ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 44 consistently laid down by this Court in several decisions, it is not necessary to refer to all these decisions. However, we would like to refer to the decision in Sharad B. Chand v. State of Maharashtra, (1985) 1 SCR 88 : (AIR 1984 SC 1622) as this .
case has been relied upon by the High Court in upholding the conviction of the appellants. In Sharad B. Chand's case this Court while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him struck a note of caution that before a false explanation is used as additional link against the accused the Court should satisfy itself that (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the circumstances point to the guilt of accused with reasonable definiteness; r and (3) the circumstances are in proximity to the time and situation where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused, as an additional link to lend an assurance to the Court and not otherwise. There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused. We have reminded ourselves of these principles with a view to ascertain as to whether the high Court has correctly applied these principles in convicting and sentencing."
In the present case the circumstantial evidence on one hand points towards the guilt of the accused and on the other hand it points towards the innocence of the accused, therefore, this Court is also of ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 45 the view that in such a situation view favouring the guilt of the accused must be given go by. The judgment (supra) is fully applicable to the facts of the present case.
.
34. In Surinder Pal Jain vs. Delhi Administration, AIR 1993 SC 1723, the Hon'ble Supreme Court, vide paras 26, 30 and 34, has held as under:
"26. On our independent appraisal of the evidence we find that the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepant and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to reply upon the same."
... ... ... ... ... ...
30. In view of the serious discrepancies, contradictions and the attempt of the Investigating Officer Harmit Singh to create false clues and fabricate evidence, we are of the opinion that the learned Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement Ex. PC and the consequent recovery of the ornaments.
The prosecution has failed to established that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution. This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively.
... ... ... ... ... ...
34. On an independent appraisal of the evidence on record, we have therefore unhesitatingly come to the conclusion that the learned Sessions Judge was ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 46 perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound cogent and reasonable. The High Court was not justified to set aside those findings on surmises and against the appellant by .
the High Court is not sustainable in law and we agree with the learned Sessions Judge that the prosecution has not established the case against the appellant beyond a reasonable doubt. We, accordingly, set aside the judgment of the High Court convicting the appellant for the offence under Sec. 302/ 203, I.P.C. The appeal is allowed and the appellant acquitted of both the charges. The appellant is on bail, his bail bonds shall stand discharged."
No doubt the prosecution case rests wholly on circumstantial evidence and the statements of PW-7, Shri Rattan Lal Thakur, Naib Tehsildar, who is witness to the recovery of skeleton, PW-17, Smt. Meera Devi (mother of the deceased) and PW-18, Shri Sandeep Thakur (brother of the deceased) make the links in the chain of the circumstances weak. The statements of the above key prosecution witnesses suffer from infirmities and improbabilities, therefore, the judgment (supra) is fully applicable to the facts of the present case.
35. In Tarseem Kumar vs. The Delhi Administration, AIR 1994 SC 2585, the Hon'ble Supreme Court, vide para 8, has held as under:
"8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 47 the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its .
importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the r immediate impelling motive on the part of the accused which led him to commit motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution."
In the case in hand, prosecution has tried to portray the motive behind the crime was that accused killed the deceased as he wanted to get rid of her. However, the prosecution evidence does not even subtly support this view. No doubt, the prosecution need not to necessarily prove motive behind the crime, however, motive can provide important cues qua the offence. Therefore, in the present case motive for committing the crime by the accused assumes greater importance. The judgment (supra) is fully applicable to the facts of the present case.
::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 4836. In State of Haryana vs. Ram Singh, 2002(2) SCC 426, the Hon'ble Supreme Court, vide paras 11, 13 and 19, has held as under:
.
"11. Significantly, the prosecutor produced the bundle containing three pieces of bones, which are identified by PW-8 as the same pieces of bones, which were under seizure by the police authorities at the place of occurrence - these bones, however, were not produced and placed for examination before the post-mortem doctor, as to whether they can be co-related with that of the deceased person. The Serological Report of these bones did not see the light neither the Ballistic Experts' Report as to the nature of the weapons used. It is a duty cast on the prosecution to prove the guilt of the r accused persons beyond all reasonable doubts. High Court has dealt with the issue that the thumb marked disclosure statement of Ram Singh dated 29-1-1992 casts a lot of doubt as to the involvement of accused Ram Singh since Ram Singh was arrested only on 13-2-1992 as such disclosure statement of 29-1- 1992 cannot be had - it is this inconsistency which was noticed by the High Court and Ram Singh, at whose instance the ring was supposed to have been recovered, stands acquitted on the ground of benefit of doubt. The High Court, however, has not considered the medical evidence vis-a-vis the eye-witnesses' account -
the conflict and inconsistency between the two also raises a very great suspicion in the mind of the Court : credibility of the prosecution case stands at zero level by reason of the conclusion of the High Court and accordingly benefit of doubt to Ram Singh. It is the same prosecutor, which has recovered the pieces of bones, had it exhibited but not produced before the post-mortem doctor, who would otherwise be able ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 49 to identify the bones as that of the deceased. This failure of the prosecution in our view, cannot be taken as a mere omission but a failure, which would go a long way in the matter of reposing confidence thereon.
.
... ... ... ... ... ...
13. The judgment under appeal
admittedly does not contain a whisper even pertaining to the contradictions between eye-witnesses' account and the medical evidence. In the contextual facts and as noticed above, medical evidence runs positively counter to the eye-witnesses' account rendering the ocular testimony not being dependable or trustworthy. There is no credible evidence on record. It is significant that all the so- called eye-witnesses were produced in r Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under-trial prisoners being involved in a murder trial. The Court thus has to scrutinise its evidence with a little bit of caution and scrutiny so as to judge their veracity. Admittedly all the supposed eye-witnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence. High Court has principally relied on the 161 statements and the contradictions available on the record have not been taken note of. In our view this is a clear error on the part of the High Court. Some weapons have been seized along with the cartridges and it has been stated that such recovery was effected in terms of the disclosure statement. Before this Court it has been strongly urged that ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 50 the same is in contravention of Section 27 of the Evidence Act. Undoubtedly, Section 27, though provides an exception, but the Court should always be vigilant about the circumvention of its provision - "Sarkar on Evidence (15th Edition)"
.
has the following to state on Section 27 :-
"..... The protection afforded by the wholesome provisions of Ss. 25 and 26 is sought to be whittled down by the police by their ingenuity in manipulating the record of the information given by the accused in the case-diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. When a r fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. Court should be watchful that the protection afforded by Ss. 25 and 26 should not be dependent on the ingenuity of the police officer in composing the narrative conveying the information relating to the alleged recovery of a fact."::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 51
... ... ... ... ... ...
19. Significantly all disclosures,
discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu .
Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - Can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same has been tailor-made or not and in the event of there being such a r doubt, the benefit must and ought to be transposed to the accused persons.
The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully hereinbefore.
The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omni present Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the Court has to be consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 52 Manphool was missing from village for about 2/3 days and is murdered on 21-1-1992 itself. There is defence evidence on record by DW-3 Raja Ram that Manphool was murdered on 21-1- 1992. The High Court rejected the defence contention by reason of the .
fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21-1-1992 itself and DW-3 Raja Ram had even come to attend the condolence and it is by reason therefor Raja Ram's evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of r the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution's witnesses in particular PW-10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case : a doubt or a certainty - jurisprudentially a doubt would be enough : when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet - it is prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be suspicious in nature."
Certainly, in the present case, medical evidence could have been very ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 53 vital, but DNA report, Ex. PX, is not reliable as the same is not conclusive. DNA report, Ex. PX, demonstrates that femur bone, which was sent for DNA analysis, did not yield amplifiable DNA, so .
no STR DNA profile could be generated. The report only provides that the sample bone belongs to a female. On the other hand, recovery of bones in presence of witness Shri Rattan Lal Thakur, Naib Tehsildar (PW-7) is also under doubt, as he has deposed that on 08.08.2012 by the time he reached the spot, the police had already exhumed the bones. Therefore, he has not witnessed the recovery of bones from the spot. In the present case the medical/scientific evidence is of no help and thus it cannot be said that the same runs parallel to the prosecution witnesses.
37. In Sashi Jena & others vs. Khadal Swain & another, (2004) 4 SCC 236, the Hon'ble Supreme Court, vide para 16, has held as under:
"16. We now come to the fourth and the last circumstance that according to the medical evidence it was a case of homicidal death and not suicide. From the evidence of PW-6-the Doctor who held post-mortem examination, it would appear that it was a case of homicidal death. It appears that during the course of investigation, PW-7-the Investing Officer - sent the post-mortem report to Professor, FMT Department, MKCG Medical College, Berhampur, for his opinion, who requested PW-7 to send hyoid bone, as according to him, it was essential for formation of opinion as to whether it was a case of suicide or homicide, but ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 54 PW-7 reported vide his letter dated 15- 10-1986 (Ext. 16/1) that the said bone was not available in the Sub- Divisional Hospital where post-mortem examination was conducted. Upon receipt of the said letter, the said Professor submitted his report under .
letter dated 15-10-1986 (Ext. 16), which was based on the post-mortem report, to the effect that, in the absence of any mention in the post- mortem report as to whether the fracture was ante-mortem or not and what was the type of the fracture, it could not be said with reasonable amount of certainty that it was a case of homicide. In this view of the matter, it would not be safe to place reliance upon the report (Ext. 16). Thus, in view of opinion of the doctor, PW-6, we have no option but to hold that it was a case of homicide and the prosecution has succeeded in proving r this circumstance against the accused persons which, being the solitary circumstance against them, cannot form basis of their conviction as it is well settled that in a case of circumstantial evidence, there should be chain of circumstances showing complicity of the accused persons with the crime and the chain should be complete. In view of the foreoging discussion, we are of the view that prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding conviction of the appellants."
It is settled law that in case of circumstantial evidence, the prosecution has to prove each and every circumstance and connect the links in a manner that nothing seems to be improbable, however, as in the case in hand, vital links in the chain of circumstances are missing, so the judgment (supra) is fully applicable to the facts of the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 55 present case.
38. In Mohd. Faizan Ahmad alias Kalu vs. State of Bihar, (2013) 2 SCC 131, the Hon'ble Supreme Court, vide para 18, .
has held as under:
"18. The High Court's observation that there was a pre-conceived plan to abduct the children would not be applicable to the appellant because there is nothing on record to establish that the appellant met the co-accused and planned a strategy to abduct the children and demand ransom. His case stands on a different footing from that of the other accused. The case of the other accused will have to be dealt with on its own merit. The High Court was carried away by the r heinous nature of the crime and, in that, it lost sight of the basic principle underlying criminal jurisprudence that suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence.
We hope and trust that this is just an aberration."
The basic and fundamental principle of criminal jurisprudence is that suspicion, howsoever grave, cannot supplant proof. In the case in hand also, the prosecution has proceeded on suspicion and the investigation ensued against the accused, but even after culmination of the investigation, the hands of the prosecution are empty and are not filled with proof and even the proof supporting the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 56 suspicion lacks. Therefore, the judgment (supra) is fully applicable to the facts of the present case.
39. In Anvar P.V. vs. P.K. Basheer & others, (2014) 10 .
SCC 473, the Hon'ble Supreme Court, vide paras 7 to 21, has held as under:
"7. Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments were also introduced in The Indian Penal Code r (45 of 1860), The Bankers Books Evidence Act, 1891, etc.
8. Section 22A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of electronic records are relevant.- Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
9. Section 45A of the Evidence Act reads as follows:
"45A. Opinion of Examiner of
Electronic Evidence.-When in a
proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact. Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
10. Section 59 under Part II of the ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 57 Evidence Act dealing with proof, reads as follows:
"59. Proof of facts by oral evidence. All facts, except the contents of documents or electronic records, may be proved by oral evidence."
11. Section 65A reads as follows:
.
"65A. Special provisions as to evidence relating to electronic record:
The contents of electronic records may be proved in accordance with the provisions of section 65B."
12. Section 65B reads as follows:
"65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to r be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-
section (1) in respect of a computer output shall be the following, namely:
-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 58 activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the .
period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-
section (2) was regularly performed by computers, whether
(a) by a combination of computers r operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 59 appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a .
person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied r directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
These are the provisions under the Evidence Act relevant to the issue under discussion.
13. In the Statement of Objects and ::: Downloaded on - 22/12/2017 23:06:54 :::HCHP 60 Reasons to the IT Act, it is stated thus:
"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business."
.
In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of r these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 61 period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said .
activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement r in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 62 etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic .
record sought to be used as evidence.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of r examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999.
Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 63 Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code .
in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru., 2005 11 SCC 600], a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph- 150 as follows:
"150. According to Section 63, secondary evidence means and r includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge.::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 64
Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence .
under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub- section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65."
It may be seen that it was a case r where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act.
However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record."
40. After discussing the prosecution evidence and also the law relied upon by the learned Senior Counsel for the appellant/accused, we are of considered view that present case hinges on circumstantial evidence. The prosecution, in order to establish and prove the guilt of the accused, has relied upon the:
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 651. Circumstantial evidence;
2. Relevance of the statement of the accused under Section 27 of The Indian Evidence Act, 1872;
3. Motive cannot be a ground to reject the case of the prosecution; & .
1. Circumstantial evidence:
1. Praful Sudhakar Parab vs. State of Maharashtra, (2016) 12 SCC 783,
2. Anthony D'Souza & others vs. State of Karnataka, (2003) 1 SCC 259,
3. Dharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC 509,
4. Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh & another, (2015) 7 SCC 148.
1. In Praul Sudhakar Parab vs. State of Maharashtra, (2016) 12 SCC 783, the Hon'ble Supreme Court has held as under:
13. The present is a case where no eye witness is produced. The statements wee made before police by the accused in the morning of 09.12.1996 wherein the accused is stated to have confessed murder cannot be said to be a valid confession as has rightly been held by the learned Sessions Judge.
The prosecution has based its case on circumstantial evidence. Whether conviction based on circumstantial evidence can be upheld and whether there was sufficient evidence to support the conviction are the questions to be answered in this appeal. This Court on several occasions has considered the law regarding basing of conviction by the Court on a circumstantial evidence. It is useful to refer to the judgment of the Apex Court ikn Gambhir v. State of Maharashtra, (1982) 2 SCC 351, wherein the Apex Court laid down that circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 6614. Referring to the above judgment of Gambhir v. State of Maharashtra, principles were again reiterated by the Supreme Court in K.V. Chacko v.
State of Kerala, (2001) 9 SCC 277, wherein following was laid down in .
para 5:
"5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be of a definite tendency unerringly r pointing towards guilt of the accused;
3. the circumstances, taken cumulatively, should form a chai9n so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
2. In Anthony D'Souza & others vs. State of Karnataka, (2003) 1 SCC 259, the Hon'ble Supreme Court has held as under:
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 67"15. In Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, this Court said that in a case of circumstantial evidence when the accused offers an .
explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra v. Suresh, (2000) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been r again followed and reiterated in Kuldeep Singh and others v. State of Rajasthan, 2000 (5) JT (SC) 161.
16. In our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused."
3. In Dharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC 509, the Hon'ble Supreme Court has held as under:
15. We have no eye-witness version in the instant case and the entire case rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh, 1952 AIR(SC) 343, this Court held as follows:::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 68
"10. ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established and all the facts so .
established should be consistent only with the hypotheses of the guilt of the accused. Again, the circumstances would be of a conclusive nature and tendency and they should be such as to exclude but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Each and every incriminating
r circumstance must be clearly
established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye- witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, accused may be convicted on the basis of such circumstantial evidence."
4. In Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh & ano0ther, (2015) 7 SCC 148, the Hon'ble Supreme Court has held as under:
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 69"36. In cases where the direct evidence is scarce, the burden of proving the case of prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases. Before analysing factual aspects it .
may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of r evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed [See: Bodhraj Vs. State of J&K, 2002 8 SCC
45. In the case on hand, the evidence adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence. The entire evidence brought on record by the prosecution, is not only convincing, but is also trustworthy. Even if the confession of accused Nos. 4 and 7 made before PW 1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken into account, the other evidence on record adduced by the prosecution, is sufficient to hold the accused guilty of the offence.
37. This Court has been consistently taking the view that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 70 circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the present case, on scrutiny of evidence on record, we are convinced that the prosecution had established beyond reasonable doubt .
the complete chain of events which points at the guilt of the accused."
All the judgments, as cited above, enunciate the law qua circumstantial evidence and present case is no doubt wholly based on circumstantial evidence. The law, qua circumstantial evidence, deducible from the above judgments can be summarized as 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 accused but should be inconsistent with his innocence.
41. Now the evidence of the present case is to be analyzed on the above parameters of circumstantial evidence. The deceased was having intimate relations with the accused and both of them lived together at Babina Cantt District Jhansi, and the father of the accused brought the deceased back and handed her over to PW-17, Smt. Meera Devi (mother of the deceased). The deceased was using the telephone of Shri Malkiat Singh (PW-5) and it has come on record that the deceased was having relations with PW-5. It has come in the investigation and also in the statement of PW-22, HC ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 71 Ashok Kumar, that many calls were exchanged between cell No. 98176-45093 and 98168-46315 and PW-5, Shri Malkiat Singh, deposed that his telephone No. is 98168-46315. He has also .
admitted that he used to talk with the deceased, but thereafter the investigation is silent. Whether PW-5 has any role with respect to elopement of the deceased or he has any connection with it, nothing has come on record in the investigation of the police, which also makes the prosecution case suspicious. Further it has not come on record that the telephone which the accused was using, was in whose name, this also castes a doubt on the prosecution story. It has come in the prosecution evidence that PW-5, Shri Malkiat Singh, was also having relations with the deceased. PW-7, Shri Rattan Lal Thakur, Naib Tehsildar, deposed that in his presence the digging work was started and the same continued till 01:00 a.m. and few skeleton bones were recovered and put in a box. Due to darkness, the digging was stopped and it was decided to resume the work in the morning. They left the spot and guards were deputed there. On the subsequent morning, when he reached the spot, around 09:45 a.m., as decided, the police had already completed the digging work and recovered the skeleton remains of a human body. As per the prosecution story, the police recovered the skeleton of the deceased at the instance of the accused, therefore, witness to the recovery of ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 72 skeleton is of utmost help to prove the vital link in the chain of the circumstances, but statement of PW-7, Shri Rattan Lal Thakur, Naib Tehsildar, does not provide that link. Especially when it has not .
been established that the bones so recovered by the police were of the deceased, so the DNA report, Ex. PX, is also of no help to the prosecution. Thus, the above circumstances weaken the prosecution case.
42. The only incriminating substance against the accused is that he might have killed the deceased when she went to meet him at Awah Devi Temple, but there is no material on record to demonstrate that the accused met the deceased on that day. The evidence reflects that the deceased was major on the day of occurrence. PW-
17, Smt. Meera Devi (mother of the deceased) in her statement has deposed that in March, 2011, the accused took the deceased to Gwalior (M.P.), where he was serving in Army. Subsequently, father of the accused, Shri Ramesh Thakur (PW-2), brought the deceased back. PW-17 entered into a compromise with PW-2, which is Ex.
PW-16/A, and she took `25,000/- for not reporting the matter to the police. The accused in his disclosure statement made to the police has stated that his parents were not interested in his marriage with the deceased and then also PW-17 remained silent. As per the prosecution case, when the deceased went to Awah Devi Temple to ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 73 meet the accused, PW-17, Smt Meera Devi (mother of the deceased) did not object and she remained mum. In fact, there was no occasion for PW-17 and PW-18, Shri Sandeep Thakur (brother of the .
deceased) to wait for 3-4 days before lodging the missing report. So, the above glaring loopholes break the consistency in the prosecution story. There is no evidence on record that when the deceased went missing, she was seen with the accused or she met him at Awah Devi Temple. In such circumstances, it is just a presumption, getting its birth from the background facts of the prosecution case.
The accused had intimate relations with the deceased and he took the prosecutrix to Jhansi, but only because he had intimate relation with the deceased it cannot by any stretch of imagination presumed that he had killed her. It is settled position of law that presumption, howsoever strong it be, cannot supplant and substitute for proof.
So, merely the gravity of presumption, which is also not so high, cannot force this Court to uphold his conviction. Consequently, we are convinced that the circumstances in the present case do not form a complete chain and the links of it are missing, which is apparent from the statements of the key prosecution witnesses.
43. Further the handwriting of the deceased was handed over to the police by the brother of the deceased after many days stating that it was recovered from below the pillow of the deceased, ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 74 but there is no explanation why it was not handed over earlier or why it was not recovered earlier. This also creates a doubt with respect to the prosecution story and improvements made thereafter .
by the prosecution witnesses. In a case resting completely on the circumstantial evidence chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused. Having regard to above analysis of the circumstances of the present case, the probability of accused's committing the murder of the deceased seems highly improbable and thus the accused cannot be held guilt.
44. The law, as cited and discussed above, on the circumstantial evidence is lucid and also applicable in the present case, but as the circumstances in the present case do not form a complete chain, the accused cannot be held guilty.
2. Statement under Section 27:
1. Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh & another, (2015) 7 SCC 148,
1. State of Maharashtra vs. Suresh, (2000) 1 SCC 471; &
3. A.N. Venkatesh & another vs. State of Karnataka, (2005) 7 SCC 714.
44. The prosecution is trying to get aid of the Section 27 (supra) in order to prove that at the instance of accused, the bones of the deceased were recovered and thus the chain of circumstantial evidence is complete. Before discussing the law laid down by Hon'ble ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 75 Supreme Court qua Section 27 of The Indian Evidence Act, 1872, it is apt to extract Section 27, in extenso, which is as under:
"27. How much of information received from accused may be proved.- Provided .
that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
1. In Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh & another, (2015) 7 SCC 148, the Hon'ble Supreme Court has held as under: r "29. It is settled principle of law that statements made by an accused before police official which amount to confession is barred under Section 25 of the Indian Evidence Act. This prohibition is, however, lifted to some extent by Section 27 which reads thus:
"27. How much of information received from accused may be proved.-
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
In the light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 76 confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information .
supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information [See:
State of Maharashtra Vs. Damu, 2000 6 SCC 269.
30. The "fact discovered" as envisaged under Section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate r distinctly to that effect."
2. In State of Maharashtra vs. Suresh, (2000) 1 SCC 471, the Hon'ble Supreme Court has held as under:
"24. One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent. The statement of the respondent which led to the recovery of the dead body has been incorporated in Ext. 79 and the admissible portion of it reads thus:
"Her dead body is kept concealed in the field. I will take it out and produce the same; come with me."
25. But unfortunately the Division Bench of the High Court did not rely on the above circumstance on a very fragile reasoning. The first limb of that reasoning was based on a mistake committed by P.W. 3 Sayyad Niyamat in his evidence when he said that he saw the dead body of the child on 23-12-1995. Much strain is not required in holding that what P.W. 3 said should have been understood as ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 77 24-12-1995. The second limb of the reasoning is that two other possibilities could not have been ruled out, of which one is that respondent would have seen someone else placing the dead body at that spot, and the second is that respondent would have .
been told by somebody else that the dead body was placed there.
26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Criminal Court that his r knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by himself.
Such an interpretation is not
inconsistent with the principle
embodied in section 27 of the
Evidence Act."
3. In A.N. Venkatesh & another vs. State of Karnataka,(2005) 7 SCC 714, the Hon'ble Supreme Court has held as under:
"9. By virtue of Section 8 of the Evidence act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 78 simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under section 8 irrespective of the fact whether the .
statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State. Even if we hold that the disclosure statement made by the accused appellants (exhibits P14 and P15) is not admissible under Section 27 of the Evidence act, still it is relevant under Section 8. The evidence of the investigating officer and pws 1,2,7 and PW4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was r buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-
1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under section 8 of the Evidence Act."
45. As in the case in hand, circumstances do not establish towards the guilt of the guilt and they only raise a subtle presumption that accused might have killed the deceased. It is cardinal principle of criminal prudence that on the basis of presumptions one cannot be held guilty. Further, as per the prosecution story, immediately after the arrest of the accused, he made a disclosure statement under Section 27 of The Indian Evidence Act, 1872, and consequent thereto recovery was effected. It is not proved that what led the accused to make the disclosure ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 79 statement under Section 27 of the Act. Further there were many independent witnesses available and non-joining of any independent witness while recording the disclosure statement under Section 27 of .
the Act also required to be considered in favour of the accused, especially when other evidence, which has come on record, does not establish the guilt of the accused. No doubt, Section 27 of the Indian Evidence Act, 1872, (supra) has a specific purpose, but here applicability of Section 25 of the Act is more plausible, which provides as under:
"25. Confession to police officer not to be proved.- No confession made to a police r officer, shall be proved as against a person accused of any offence."
Thus, the judgments cited above relating to Section 27 of the Indian Evidence Act, 1872, are not applicable in the case in hand.
3. Motive cannot be ground to reject the case of the prosecution:
1. Praful Sudhakar Parab vs. State of Maharashtra, (2016) 12 SCC 783;
2. Ravinder Kumar & another vs. State of Punjab, (2001) 7 SCC 690;
3. State of Himachal Pradesh vs. Jeet Singh, (1999) 4 SCC 370; &
4. State of Gujarat vs. Anirudhsing & another, (1997) 6 SCC 514.
1. In Praful Sudhakar Parab vs. State of Maharashtra, (2016) 12 SCC 783, the Hon'ble Supreme Court has held as under:
"26. Motive for committing a crime ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 80 is something which is hidden in the mind of accused and it has been held by this Court that it is an impossible task for the prosecution to prove what precisely have impelled the murderer to kill a particular person. This Court in Ravinder Kumar and another vs .
State Of Punjab, 2001 7 SCC 690, has laid down following in paragraph 18:
"18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of this Court in State of Himachal Pradesh vs. Jeet r Singh, 1999 4 SCC 370:
"33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.
27. Further in Paramjeet Singh Vs. State of Uttarakhand, 2010 10 SCC 439, this Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case.::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 81
Following was stated in paragraph 54:
"So far as the issue of motive is concerned, the case is squarely covered by the judgment of this court in Suresh Chandra Bahri. Therefore, it does not require any further .
elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing )"
(emphasis in original)
28. The High Court while considering the motive has made following observations at page 46:
"70. Although prosecution is not very certain about the motive, upon taking into consideration the evidence r of PW-4 and PW-6, a faint probability is created, regarding intentions of the accused to lay hands on the cash which could have been in possession of the victim, as against the initial story that the accused was enraged against the victim, because the victim used to tease him on the point of his marriage with a bar girl Helen Fernandes. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution."
We fully endorse the above view taken by the High Court and do not find any substance in the above ground."
2. In Ravinder Kumar & another vs. State of Punjab, (2001) 7 SCC 690, the Hon'ble Supreme Court has held as under:
"18. The third contention is that the motive alleged by the prosecution was not established and hence the area ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 82 remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that .
aspect to the hilt. Nonetheless some materials were produced for showing that there were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause of the murder. In this connection we deem it useful to refer to the r observations of this Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370 : (Para 33 of AIR, Cri LJ):
"33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed it the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on' record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.""
3. In State of Himachal Pradesh vs. Jeet Singh, (1999) 4 SCC ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 83 370, the Hon'ble Supreme Court has held as under:
"29. The High Court observed that the accused had no good motive to liquidate his young wife. This is what the learned Judges of the High Court .
have stated on that aspect:
"Although it is not always necessary for the prosecution to prove motive in a criminal trial, however, this is one of such cases where motive is essential in case the prosecution wants to succeed in its endeavours to prove the case against the accused. But, we are not convinced with this kind of motive. These factors, narrated by the prosecution, are too trivial to be taken note of to establish it. They are thoroughly insignificant and do not, in any way, indicate that they could influence the accused to the extent that he would take the extreme step of killing his wife."
33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two- Judge Bench of this Court (Dr. A.S. Anand, J. - as the learned Chief Justice then was and Thomas, J.) in Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 : (1997 AIR SCW 1158):
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 84"17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause .
need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer (Shorthand Report at p. 308 CCC MAY 1856) thus:
'But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal r Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.""
46. In State of Gujarat vs. Anirudhsing & another, (1997) 6 SCC 514, the Hon'ble Supreme Court has held as under:
"46. It is then contended by Shri Sushil Kumar that Accused 1 had no motive and the prosecution has failed to0 prove it. We find no force in the contention. The motive gets locked in ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 85 the mind of the makers and it is difficult to fathom it. The evidence of Acharya, PA to the deceased, who too turned hostile to the prosecution speaks of motive. Equally, others have spoken but their evidence is not on record. If motive is proved that .
would supply a chain of links but absence thereof is not a ground to reject the prosecution case. So we reject the contention of the learned counsel in that behalf too."
After discussing the judgments, as cited by the prosecution on the point of motive, the facts of the present case qua motive of the accused have been analyzed. The motive of the accused for committing the crime, as attributed by the prosecution, is that he did not want to marry the deceased, so he killed her. Apparently, the evidence on record speaks that there was love affair between the accused and the deceased and only the father of the accused was unwilling and adamant to their marriage. This fact is further fortified by the statement of brother of the deceased, who while appearing in the witness box, has deposed that when he telephoned the father of the accused, he stated that he has done whatever he wanted to do with the deceased and the complainant party can do whatever they like. This shows that the motive behind killing the deceased, as per the prosecution and the mother of the deceased, was that the accused and his father were adamant to marry with the deceased, but the other circumstances show that it is only the father of the accused, who was adamant. In these circumstances, the ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 86 motive, as attributed by the prosecution, cannot be taken as a reason for the accused to kill the deceased, as this could have been the motive of the father of the deceased, however, no case is there .
against the father of the deceased.
47. Another story with regard to motive, as per the prosecution, is that PW-5, Shri Malkiat Singh, was having relations with the deceased and when the accused came to know about their relationship, he killed the deceased. PW-5, Shri Malkiat Singh, while appearing in the witness-box, has deposed that he was regularly talking with the deceased. Therefore, keeping in view the deposition, so made by PW-5, it can be deduced that second theory qua motive, as portrayed by the prosecution, is only an inference coming out from the testimony of PW-5 that he was regularly talking with the deceased, but he did not want to marry her, as she was in love with the accused. In the absence of any other evidence on record, it is difficult to conclude that the motive of killing the deceased by the accused was that he was offended after knowing that the deceased has relationship with PW-5, but there is no evidence with respect to the fact that PW-5, Shri Malkiat Singh, was meeting the deceased in presence of the accused or the accused came to know about the relationship of PW-5 with the deceased, thus this motive is also not proved by the prosecution.
::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 8748. The learned Assistant Advocate General has argued that even if motive has not been proved, the same is of no consequence as the circumstantial evidence proves the guilt of the accused. True it .
is that motive is not required to be proved if the circumstantial evidence proves the guilt of the accused, however, in the present case circumstantial evidence also fails to bring home the guilt of the accused. So the judgments, as citied by the learned Assistant Advocate General, are of no avail, hence the same are not applicable to the facts of the present case.
49. In view of the nature of the evidence, which has come in this case, which stands exhaustively discussed hereinabove, and testing the same on the anvil of law relating to circumstantial evidence, the only probable conclusion is that the prosecution has failed to prove its case beyond the shadow of reasonable doubt. In fact, whole prosecution story is based on suspicion and circumstantial evidence, but it is cardinal principle of criminal jurisprudence that suspicion, howsoever strong, cannot supplant proof. In the present case the circumstances, which have emerged, do not make a complete chain, which, in the present case, is required to clearly and unambiguously prove the guilt of the accused. Therefore, the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Hence, the ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP 88 impugned judgment, convicting and sentencing the accused, passed by the learned Trial Curt is set aside and the accused is acquitted.
50. The Registry is directed to issue release warrants of the .
accused and the accused be released forthwith
51. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 22nd December, 2017 (virender) ::: Downloaded on - 22/12/2017 23:06:55 :::HCHP