Himachal Pradesh High Court
Divesh Vaidya Alias Mukhia vs State Of H.P on 1 January, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 313 and 316 of 2015
Reserved on: December 30, 2015.
Decided on: January 01, 2016.
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1. Cr. Appeal No. 313 of 2015
Divesh Vaidya alias Mukhia ......Appellant.
Versus
State of H.P . .......Respondent.
2. Cr. Appeal No. 316 of 2015
Ritesh Handa alias Bhau ......Appellant.
Versus
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State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant(s): Mr. Anoop Chitkara, Advocate.
For the respondent/State: Mr. P.M.Negi, Dy. Advocate General.
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Justice Rajiv Sharma, J.
Since both these appeals have arisen from a common judgment, the same were taken together for hearing and are being disposed of by a common judgment.
2. These appeals are directed against the common judgment and order dated 29.6.2015 & 30.6.2015, respectively, rendered by the learned Addl. Sessions Judge(II), Mandi, H.P., in Sessions Trial No. 36 of 2013, whereby the appellants-accused (hereinafter referred to as "accused"), who were charged with and tried for offences punishable under Sections 302 and 201 IPC read with Section 34 of the IPC were convicted and sentenced to undergo life imprisonment and to pay fine of Rs. 20,000/- each for commission of the offence under Section 302 IPC and in default of payment 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 2of fine to undergo simple imprisonment for one year each. The accused were also sentenced to undergo imprisonment for a term of two years under .
Section 201 IPC and to pay fine of Rs. 5,000/- each and in default of payment of fine to undergo simple imprisonment for a period of one month each. The substantive sentences were ordered to run concurrently. The period of detention undergone by each of the convict was set off as per the provisions of Section 428 Cr.P.C.
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3. The case of the prosecution, in a nut shell, is that on 21.4.2013 at about 8:15 AM, PW-1 Dina Nath telephonically informed the police of rt Police Post, City Mandi that Govind Ram (since deceased) was lying dead in pool of blood in Hanumanghat Sarai at Mandi. The In-charge P.P. City Mandi, PW-26 SI Chet Ram, telephonically informed S.P. Mandi, Addl. S.P. Mandi, SHO PS Sadar Mandi, member of RFSL Mandi and rushed to the spot alongwith the police party. He recorded the statement of PW-6 Kedar Nath under Section 154 Cr.P.C. vide Ext. PW-6/A. According to him, he was resident of village Gaighat, PO Hathsar, Tehsil Dighata, Distt. Sant Kabir Nagar, U.P. and he was residing at Mandi for the last 20 years. He is a mason by profession. On 20.4.2013, at about 7:30 PM, after completing his day work, he along with Janardhan came to his quarter near to Hanumanghat Sarai. According to him, when he came back at that time Mukhiya (Divesh Vaidya) and Ritesh Handa alias Bhau were sitting outside Hanuman Shamshanghat. They were eating and drinking something and their presence was also visible from his quarter. At about 9:00 PM, he had ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 3 gone to fetch water from Bawri. He noticed that Divesh Viadya alias Mukhiya and Ritesh Handa alias Bhau were sitting at the same place under .
intoxicated condition and deceased Govind Ram was sitting inside the Sarai.
Ritesh Handa and Mukhiya went inside the open space of Sarai where Govind Ram was sitting. At about 10:00 PM, he heard cries of Govind Ram but due to fear, he did not come out from his quarter. On 21.4.2013 at about 7:30 AM, when he had gone to attend the call of nature near Beas of river, on his return he met with local residents Dina Nath and Parmod Kumar. They were standing outside the Sarai and Govind Ram was lying rt dead in a pool of blood. According to him, he disclosed to Dina Nath that during last night, Mukhiya and Bhau were there. On the basis of Ext. PW-
6/A, FIR Ext. PW-26/A was registered. The team of RFSL, Mandi also visited the spot and inspected the dead body. The post mortem of the dead body of deceased was also got conducted. Dr. Rakesh Kumar and Dr. Hemant Kumar conducted the post mortem and the report is Ext. PW-8/B. The cause of death was opined that deceased died due to shock consequent upon excessive bleeding loss and head injuries sustained due to blunt and sharp edged weapons. The duration between injuries and death was within one hour and duration between death and postmortem was within 12 to 24 hours. The blood samples were also lifted from the spot. The accused were nabbed. Accused Ritesh Handa alias Bhau made disclosure statement Ext.
PW-3/A in the presence of Karam Singh and Ravi Chandel qua identification of the spot and throwing of sharp edged weapon in Beas river. Similarly, he ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 4 made disclosure statement Ext. PW-2/A with regard to the concealment of clothes in House No. 109/8, Darmayana Mohalla near Balakrupi temple, .
Mandi in the presence of PW-2 Parmod Kumar and Const. Krishan Chand.
The clothes were recovered. The Investigating Agency also collected sample for DNA profiling and sent the same through PW-25 HHC Bhagat Ram and the report is Ext. PW-24/A. The investigation was completed and the challan was put up after completing all the codal formalities.
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4. The prosecution, in order to prove its case, has examined as many as 27 witnesses. The accused were also examined under Section 313 Cr.P.C.
rt They have denied the prosecution case. According to them, they were falsely implicated. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, these appeals on behalf of the accused persons.
5. Mr. Anoop Chitkara, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, Dy. Advocate General, for the State has supported the judgment/order of the learned trial Court dated 29/30.6.2015.
6. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
7. PW-1 Dina Nath deposed that on 21.4.2013, at about 7:30 AM, he alongwith Yugal Kishore went to morning walk near the park where they met Parmod Kumar Vaidya. They paid obeisance in the temple of Mahakal.
One Sh. Govind used to live in the Karamshala. He was also having a room.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 5They found him soiled with blood. They shouted and called him. He did not wake up. He just walked two steps above and found him dead. Thereafter, .
they went near to a Peeple tree. They met one Kedar. Kedar used to stay in the Sarai. They asked him about Govind. He told that Govind was crying loudly in the night. He also told that two other boys were sitting there, where dead body of Govind was lying. Kedar also disclosed the name of two boys, namely, Mukhiya and Bhau. Thereafter, they informed the police.
of The police came on the spot. He further disclosed that on 20.4.2013, he had also gone on walk with Yugal Kishore near parking area in the evening rt and he met Mukhiya and Bhau in the park as they were sitting on the bench. In his cross-examination, he admitted that neither Karamshala nor courtyard of the Karamshala or park were visible from the room of Kedar Nath. He could not say with whom Govind Ram remained after they left the spot. He disclosed to the police that he was told by Kedar Nath that Govind was crying in the night. Confronted with statement Mark D-1, where it is not so recorded.
8. PW-2 Parmod Kumar, deposed that on 21.4.2013, he went to morning walk at about 7:30 AM. He reached Hanuman Ghat within 5 minutes. He met Dina Nath and Yugal Kishore near Peepal tree. Thereafter, they came together towards Sarai. They called Govind Ram but he did not respond. Thereafter, they stepped up and found him soiled with blood.
Kedar Nath was coming up from the khad (rivulet). They asked him as to whether any quarrel had taken place there. He named two persons, namely, ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 6 Ritesh and Mukhiya, and told that both of them were with Govind Ram in the night of 20.4.2013. Dina Nath was having mobile phone and they asked .
him to inform the police. Police came on the spot. Accused Ritesh Handa made a disclosure statement in his presence stating that the clothes and shoes worn by him on the fateful day were kept by him in house No. 109/8 near Balakrupi Temple, Darmayana Mohalla. The disclosure statement is Ext. PW-2/A. Accused Ritesh Handa and Constable Krishan Chand also put of their signatures over the same. Deceased Govind Ram used to complain to them that in the night, some boys used to come and used to misbehave with him.
rt They usually used to meet him at Hanumanghat. In his cross-
examination, he admitted that people used to go to take water from Darmayana Mohalla, which is nearby Hanumanghat. The space was open, where the dead body was lying and anybody could have easy access to the same. Volunteered that the space was covered with roof. Deceased Govind Ram was not mentally ill. However, he used to drink and used to abuse people and was troublesome person. He categorically admitted that park and Karamshala were not visible from the room in which Kedar Nath used to reside.
9. PW-3 Karam Singh is son of deceased Govind Ram. According to him, he came to Hanumanghat on 20.4.2013. On 21.4.2013, he was informed by people that death of his father occurred at Hanumanghat. On 21.4.2013, in the morning, he came to Hanumanghat and found dead body of his father lying there. The police was also present on the spot. He came ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 7 to Mandi along with Up-Pradhan for taking death certificate of his father.
Accused Ritesh was in the police custody. He disclosed to the police that he .
had killed Govind Ram with the help of Bamboo stick and with some sharp iron weapon and then he had thrown the sharp iron weapon into the river from the place near a place known as Visarjan at Hanumanghat and the bamboo stick was lying on the spot. He also disclosed that another accused Mukhia was sitting near the Peepal tree at that time. The statement was of recorded by the police vide Ext. PW-3/A. He also signed the same.
Thereafter, the accused led them to the place of occurrence but they could rt not trace the iron weapon.
10. PW-4 Ravi Chandel deposed that on 23.4.2013, he came to Mandi along with Karam Singh, son of deceased for taking death certificate of Govind Ram deceased. They straight way went to the Police Station for obtaining the death certificate. Accused Ritesh Handa was in the police custody. Accused Ritesh Handa disclosed that he offered a Biri containing Charas (Bhang) to deceased Govind Ram before killing him and gave beatings to him with kick and fist blows and also with bamboo stick. He disclosed that he attacked deceased Govind Ram with sharp iron weapon on 20.4.2013 and also disclosed that the sharp iron weapon was thrown by him in the river and the Bamboo stick was thrown by him on the spot. He also disclosed that the sharp iron weapon was thrown by him from a place i.e. where Visarjan takes place at Hanumanghat. Both the accused were with them. The police took them to the spot. He put his signatures over Ext.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 8PW-3/A. It was also signed by accused Ritesh Handa and witness Karam Singh. Accused Ritesh Handa led them to the spot but sharp iron weapon .
was not found. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that he has put his signatures over Ext.
PW-3/A. He also admitted that he along with Vidya Devi were associated by the police at the spot. He also admitted that the police prepared spot map Mark-X at the spot. He denied that he along with Vidya Devi put their of signatures over Ext. PW-4/A at the spot. In his cross-examination, by the learned defence counsel, he admitted that no bamboo stick was taken into rt possession by the police on 23.4.2013 in his presence. He admitted that the death certificate is not issued by the police. He also admitted that on Fard Ext. PW-3/A, accused Ritesh Handa and witness Karam Singh did not sign in his presence.
11. PW-5 Smt. Vidya Devi deposed that accused Ritesh Handa disclosed that he had thrown one sharp iron weapon with which he had killed Govind Ram into the river. That place was near to Shamshanghat.
Weapon was not found there. Document Ext. PW-4/A was prepared at the spot. She signed the same in red circle B. Witness Ravi Chandel and accused Ritesh also put their signatures on it at the spot. He alongwith Ravi Chandel remained associated in the investigation and accused Ritesh led them to the spot. In her cross-examination, she admitted that accused Ritesh Handa and witness Ravi Chandel did not sign in her presence on Ext.
PW-4/A. Her signatures were taken by the police on blank paper. Thereafter, ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 9 police came to her house. The statement given by the accused was gone through by her and she accepted the same as correct and then put her .
signatures. She was cross-examined by the learned Public Prosecutor. She denied the suggestion that she did not sign on blank papers on 23.4.2013.
She also denied that she only put signatures on Ext. PW-4/A in red circle B on that day. In her cross-examination by the learned defence counsel, she admitted that she asked the police to go ahead with the proceedings and to of take her signatures later on. She also admitted that this was the reason for her putting signatures on blank paper.
12. rt PW-6 Kedar Nath is the most material witness. He deposed that on 20.4.2013, he and Janardhan returned to quarter at about 7-7:30 PM after completion of their work. Mukhia and Ritesh Handa were sitting outside Hanuman Shamshanghat and were eating and drinking. He had gone to fetch water from Bawri. He prepared his dinner. A person named Govind Ram was sitting inside the Sarai. He used to reside there. Mukhia and Ritesh Handa had also gone inside the Sarai. At about 10:00 PM, he heard cries of Govind Ram but he could not come out from his room. On the next day, in the morning, he had gone to attend the call of nature near Beas river. He met with local residents Dina Nath and Parmod Kumar near Sarai. They were standing outside the Sarai and Govind Ram was lying dead in a pool of blood. According to him, he disclosed to Dina Nath that during last night, Mukhiya and Bhau were present. Dina Nath telephonically contacted the police. Police recorded his statement Ext. PW-
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 106/A. In his cross-examination, he admitted that the dead body of deceased was lying in thickly populated area. He also admitted that the houses of .
Binu, Raju, Mahesh, Satya Sharma, Bhura and tea stall of Sanju are situated nearby that place. He also admitted that on the one side of Shamshanghat one park is situated and on the other side, one Bawri is situated. He also admitted that the people of the local area used to visit the park and Bawri frequently. He also admitted that there remains rush of of people on the spot at 10:00 PM. He also admitted that the street light has been installed in the park by M.C. Mandi. He also admitted that when he rt came back from the work place at 7-7:30 PM, about 8-10 people were sitting at Bawri. He also admitted that on 21.4.2013, police had brought the accused persons at the spot. He also admitted that accused Ritesh Handa had helped to remove the dead body from the spot to the hospital. He also admitted that the people/Saint(Sadhu) used to stay in the Sarai during night. He also admitted in his cross-examination that after 7:30 PM, he did not see the accused at the spot.
13. PW-7 Tek Chand, Asstt. Director, RFSL, Mandi, has proved report Ext. PW-7/A. According to Ext. PW-7/A, human blood was detected on Ext. 5d (thread), Ext. 5f (laces), Ext. 8d (piece of metal) and Ext. 9b (pants Ritesh Handa), which was insufficient for further serological examination.
14. PW-8 Dr. Rakesh Kumar has conducted the post mortem examination. According to him, the deceased died due to shock consequent ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 11 upon excessive bleeding loss and head injuries sustained due to blunt and sharp edged weapons. The duration between injuries and death was within .
one hour and duration between death and postmortem was within 12 to 24 hours. The post mortem report is Ext. PW-8/B. On 1.7.2013, bamboo (danda) was shown to him and he and Dr. Hemant Kapoor opined that injuries No. 2,3, 6 & 7 could be caused by bamboo shown to them.
However, injury No. 7 could also be caused with sharp weapon.
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15. PW-9 Ashutosh Pal deposed that accused Ritesh Handa had got recovered pants, shoe and black coloured hood from his house in the rt custody of police. It was taken into possession vide memo Ext. PW-9/A.
16. PW-10 Dr. B.R.Rawat, Asstt. Director (retd.), RFSL, Mandi, has proved report Ext. PW-10/A.
17. PW-11 DSP Rahul Sharma, Finger Print Bureau, Shimla, has proved the opinion Ext. PW-11/B.
18. PW-19 Dr. Rajesh Verma, deposed that he visited the spot on 21.4.2013 and found dead body of male lying in a pool of blood. He was accompanied by Dr. Naresh Sharma and Sh. Sanjeev Singh. He found articles on the spot vide report Ext. PW-19/A.
19. PW-21 HHC Krishan Chand deposed that on 24.4.2013, Ritesh Handa was taken in the I.Os room for interrogation. During interrogation, accused disclosed that clothes which he had worn on the date of incident had been kept by him in Darmiana Mohalla near Bhoot Nath Gali on the slab of fifth storey. He was having knowledge about the clothes and could ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 12 get those recovered. The statement was recorded vide Ext. PW-2/A. Accused Ritesh Handa led the police party to the spot and produced his blue .
jean pants. From third floor of his house, he produced his sports white shoes and hood, which was worn by him and it was produced after changing the same. The same were taken into possession vide memo Ext. PW-9/A. He signed the same. During interrogation, accused Divesh Vaidya alias Mukhiya disclosed that he had worn the same clothes which were worn by of him at the time of occurrence. The clothes were taken into possession vide memo Ext. PW-13/A.
20. rt PW-26 Insp. C.S.Bhangalia, is the I.O. He recorded the statement of Kedar Nath vide Ext. PW-6/A under Section 154 Cr.P.C. FIR No. 94 dated 21.4.2013 Ext. PW-26/A was also registered at Police Station, Mandi. He called the photographer. He prepared the spot map. He sent the dead body for post mortem examination. He also recorded the supplementary statement of witness Kedar Nath and witnesses Yugal Kishore and Dina Nath. He had prepared docket regarding matching of finger prints and was handed over to MHC to send the same to Finger Print Bureau after the signature of SHO. Accused Ritesh Handa had made disclosure statement Ext. PW-3/A in the presence of Ravi Singh and Vidya Devi. On 24.4.2013, on the basis of disclosure statement of accused Ritesh Handa, the accused got recovered his pants from 5th storey of his house lintel. He also got recovered sports shoes from the 3rd storey. The hood which was worn by him was changed by him and handed over to him.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 13Similarly, the clothes of accused Divesh Kumar were produced by his mother. In his cross-examination, he admitted that the dead body was lying .
in open place and anybody could approach that place. He also admitted that many houses were situated near the place of occurrence. He also admitted that no sharp edged weapon was recovered.
21. PW-27 Dr. Aparna Sharma has concluded that the DNA profile obtained from exhibit P-2d (blood lifted from body) completely matched with of the DNA profile obtained from Ext. P-3b (pants of Ritesh Handa). She proved report Ext. PW-24/A.
22. rt The entire case of the prosecution is based on circumstantial evidence. In order to prove the case based on circumstantial evidence, it is necessary to complete the entire chain of events and all the incriminating circumstances must point towards the guilt of the accused. In the case based upon circumstantial evidence, motive plays a very important role.
The prosecution, in the present case, primarily relied upon 'last seen theory'.
23. PW-1 Dina Nath deposed that Govind Ram used to live in the Karamshala. They found him soiled with blood on 21.4.2013 in the morning. They met one Sh. Kedar Nath. Kedar Nath used to stay in the Sarai. They asked him about Govind. He told that Govind was crying loudly in the night. He also told that two other boys were sitting there, where dead body of Govind was lying. Kedar also disclosed the name of two boys, namely, Mukhiya and Bhau. Thereafter, they informed the police. In his cross-examination, PW-1 Dina Nath admitted that neither Karamshala ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 14 nor courtyard of the Karamshala or park were visible from the room of Kedar Nath. Since this sentence was not properly constructed, we have gone .
through the statement of PW-1 in vernacular. His statement was recorded by the police. He disclosed to the police that he was told by Kedar Nath that Govind was crying in the night. Confronted with statement Mark D-1, where it is not so recorded.
24. PW-2 Parmod Kumar, also deposed that he noticed the dead of body of Govind Ram in the morning. Kedar Nath was coming up from the khad (rivulet). They asked him as to whether any quarrel had taken place rt there. He named two persons, namely, Ritesh and Mukhiya, and told that both of them were with Govind Ram in the night of 20.4.2013. In his cross-
examination, he categorically admitted that park and Karamshala were not visible from the room in which Kedar Nath used to reside. PW-6 Kedar Nath deposed that on 20.4.2013, he and Janardhan returned to quarter at about 7-7:30 PM after completing their work. Mukhia and Ritesh Handa were sitting outside Hanuman Shamshanghat and were eating and drinking something. He had gone to fetch water from Bawri. Thereafter, he went inside his room and prepared his dinner. A person named Govind Ram was sitting inside the Sarai. He used to reside there. Accused Mukhia and Ritesh Handa had also gone inside the Sarai. At about 10:00 PM, he heard noise of crying of Govind Ram but he did not come out from his room. On the next day, in the morning, he had gone to attend the call of nature near Beas river. He met with local residents Dina Nath and Parmod Kumar near ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 15 Sarai. They were standing outside the Sarai and Govind Ram was lying dead in blood pool. According to him, he disclosed to Dina Nath that during .
last night, Mukhiya and Bhau were present. Thereafter, Dina Nath telephonically contacted the police. In his cross-examination, he admitted that after 7:30 PM, he did not see the accused at the spot.
25. What emerges from the statements of PW-1 Dina Nath and PW-
2 Parmod Kumar is that neither Karamshala nor courtyard of Karamshala of or Park were visible from the room of Kedar Nath. According to PW-6 Kedar Nath, he had gone to fetch water from Bawri. Thereafter, he went inside his rt room and prepared his dinner. A person named Govind Ram was sitting inside the Sarai. He used to reside there. Accused Mukhia and Ritesh Handa had also gone inside the Sarai. In his initial portion of the examination-in-chief, he deposed that he had seen accused Mukhiya and Ritesh Handa sitting outside the Hanuman Shamshanghat and they were drinking. If he had gone to his room after fetching water to prepare meals, how could he see accused going inside the Sarai since PW-1 Dina Nath and PW-2 Parmod Kumar have categorically deposed that from the room of PW-6 Kedar Nath, Karamshala, the courtyard of Karamshala and Park were not visible. Moreover, PW-6 Kedar Nath, in his cross-examination has deposed that he has not seen the accused on the spot after 7:30 PM and he has heard cries at about 10:00 PM of Govind Ram. In normal circumstances, once he has heard the cries of Govind Ram, he should have gone to look after him but he did not opt to come out of his room. It is unusual conduct ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 16 of PW-6 Kedar Nath. There is a gap of about 2 ½ hours between 7:30 PM and 10:00 PM. Even in the morning hours, if he had heard cries of Govind .
Ram at night, at least he should have gone to enquire about his welfare.
PW-1 Dina Nath, in his cross-examination, deposed that his statement was recorded by the police and he disclosed to the police that he was told by Kedar Nath that Govind was crying in the night. But, when confronted with statement Mark D-1, there it is not so recorded. In his statement recorded of under Section 154 Cr.P.C. Ext. PW-8/A, PW-6 Kedar Nath stated that he had seen the accused sitting from his quarter. However, as discussed rt hereinabove, it has come on record that Karamshala, courtyard of Karamshala or park were not visible from his quarters. Thus, he had no opportunity to see the accused sitting at Hanuman cremation ground. PW-1 Dina Nath has also deposed that he had come back to his quarter with Janardhan but Janardhan was not examined by the prosecution.
26. PW-1 Dina Nath has admitted in his cross-examination that there were many houses near the Karamshala. PW-2 Parmod Kumar has admitted in his cross-examination that many houses were situated above the road at place Shamshanghat, such as houses of Binu, Raju, Satya, Mahesh, Satya Sharma and Bhura etc. PW-6 Kedar Nath has admitted that where the dead body of the deceased was lying, it is a thickly populated area. He also admitted that the houses of Binu, Raju, Mahesh, Satya Sharma, Bhura and tea stall of Sanju are situated nearby that place. He also admitted that on the one side of Shamshanghat one park is situated ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 17 and on the other side, one Bawri is situated. He also admitted that the people of the local area used to visit the park and Bawri frequently. He also .
admitted that there remains rush of people on the spot at 10:00 PM. He also admitted that the street light has also been installed in the park by M.C.Mandi. PW-12 Parveen Sharma has also admitted in his cross-
examination that there are many houses near Shamshanghat and street lights are installed surrounding the Sarai and Shamshanghat by the of Municipal Committee. He also admitted that during summer season, people used to come to the park up to 10:00 PM. PW-13 Constable Surinder Kumar rt has also admitted in his cross-examination that the spot was situated in thickly populated area and towards one side of spot, there was park and on another side, there was well (Bawri). He also admitted that the dead body was lying at open space where every person could have access to it.
Similarly, PW-2 Parmod Kumar also deposed that the space was open where the dead body was lying and anybody could have access to the area. PW-26 Insp. C.S.Bhangalia, is the I.O. He also admitted that many houses were situated near the place of occurrence. In case, as per the version of PW-6 Kedar Nath, the deceased Govind Ram was crying at 10:00 PM, it would have drawn the attention of the residents of the area residing near the vicinity. The cries, if were heard by PW-6 Kedar Nath, the same would have been heard by the people residing in the close vicinity of the place of occurrence.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 1827. PW-3 Karam Singh has proved disclosure statement Ext. PW-
3/A made by accused Ritesh Handa qua the recovery of weapon of offence.
.
Ext. PW-3/A was signed by him and by accused Ritesh Handa and PW-4 Up-Pradhan Ravi Chandel. Thereafter, the accused has led them to the place of occurrence and also shown the place from where he had thrown sharp iron weapon into the river. The sharp iron weapon could not be traced. The disclosure statement was recorded on 23.4.2013. PW-4 Ravi of Chandel deposed that accused Ritesh Handa disclosed that he attacked deceased Govind Ram with sharp iron weapon on 20.4.2013 and disclosed rt that the sharp iron weapon was thrown by him in the river and the Bamboo stick was thrown by him on the spot. He put his signatures over memo Ext.
PW-3/A. It was also signed by accused Ritesh Handa and witness Karam Singh. Accused Ritesh Handa led them to the spot but sharp iron weapon was not found. He was declared hostile and cross-examined by the learned Public Prosecutor. PW-3 Karam Singh and PW-4 Ravi Chandel have gone to the Police Station to get the death certificate. The death certificate is not issued by the police. It is either issued by the Gram Panchayat or by the Municipal Committee, as the case may be. Thus, there was no occasion for them to be at Police Station. PW-4 Ravi Chandel, in his cross-examination by the learned defence counsel, has admitted that no bamboo stick was taken into possession by the police on 23.4.2013 in his presence. He admitted that the death certificate is not issued by the police. He also admitted that on memo Ext. PW-3/A, neither accused Ritesh Handa nor ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 19 witness Karam Singh put their signatures. However, the fact of the matter is also that sharp iron weapon, which allegedly was used in the commission of .
offence, was not recovered by the police since it was allegedly thrown into the river near Hanumanghat. PW-5 Smt. Vidya Devi deposed that accused Ritesh Handa disclosed that he had thrown one sharp iron weapon with which he had killed Govind Ram into the river. That place was near to Shamshanghat. Weapon was not found there. Document Ext. PW-4/A was of prepared at the spot. She signed the same in red circle B. Witness Ravi Chandel and accused Ritesh also put their signatures on it at the spot.
rt However, in her cross-examination, she admitted that accused Ritesh Handa and witness Ravi Chandel did not sign in her presence over Ext. PW-4/A. Her signatures were taken by the police on blank papers. In her cross-
examination by the learned defence counsel, she admitted that she asked the police to go ahead with the proceedings and to take her signatures later on. She also admitted that this was the reason for her putting signatures on blank paper. However, no document was scribed in her presence. It further casts doubt, the manner in which the statement Ext. PW-4/A was prepared qua the recovery of weapon of offence i.e. sharp iron weapon.
28. The clothes of accused Ritesh Handa were recovered on the basis of disclosure statement Ext. PW-2/A and clothes of accused Divesh Vaidya were produced by his mother. The recovery of stick is also doubtful since PW-4 Ravi Chandel has categorically deposed in his cross-
examination that the stick was not recovered in his presence. As per Ext.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 20PW-7/A, proved by PW-7 Tek Chand, Assistant Director, RFSL, Mandi, blood could not be detected on Ext. 9a (shoes Ritesh Handa), Ext. 9c (hood Ritesh .
Handa), Ext. 10a (chappal Divesh Vaidya), Ext. 10b (lower/pyjama Divesh Vaidya) and Ext. 10c (T-short Divesh Vaidya). The human blood found on Ext.
9b (pants Ritesh Handa) was insufficient for further serological examination.
29. The pants of the accused Ritesh Handa were taken into possession vide memo Ext. PW-9/A. It is not stated in this memo that the of pants were smeared with blood. The DNA report is based on the blood lifted from the pants of accused Ritesh Handa. In case there was blood on the rt recovered pants of accused Ritesh Handa, it should not have gone unnoticed at the time of recovery. We have seen memo Ext. PW-9/A, whereby the pants were produced by the accused. PW-26 Insp.C.S.Bhangalia, I.O. has admitted in his cross-examination that he has not observed any blood stains on pant when it was recovered vide memo Ext. PW-9/A. How blood stains could be seen by PW-27 Dr. Aparna Sharma at the time of compiling of the DNA report. Even PW-9 Ashutosh Pal, in whose presence, the clothes were produced by accused Ritesh Handa has not disclosed that he has seen blood stains on the clothes. PW-21 HHC Krishan Chand has also not deposed that he has noticed any blood stains on the clothes of accused Ritesh Handa at the time of recovery from 5th storey of the house. It also makes report Ext.
PW-24/A doubtful. The stains on the pants could not be overlooked at the time of recovery, being an important piece of evidence.
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 2130. The post mortem report is Ext. PW-8/B. According to PW-8 Dr. Rakesh Kumar, the deceased died due to shock consequent upon excessive .
bleeding loss and head injuries sustained due to blunt and sharp edged weapons. The duration between injuries and death was within one hour and duration between death and postmortem was within 12 to 24 hours.
According to him, he and Dr. Hemant Kapoor opined that injuries No. 2,3, 6 & 7 could be caused by bamboo shown to them. However, injury No. 7 could of also be caused with sharp weapon. The recovery of bamboo stick (danda), as noticed hereinabove, in view of the statement of PW-4 Ravi Chandel is rt doubtful. The weapon of offence i.e. sharp iron weapon was never recovered.
31. According to PW-26 Insp. C.S.Bhangalia, inside the Sarai, in one room, two empty bottles of liquor, whereupon "Darling" label was printed, were lying at the radius of 20 feet from the body of deceased and red colour torch was at the radius of 17 feet from the dead body. One nip whereupon label "Master Blend" was printed and one glass cup were found on the spot. He has packed the bottles in two different boxes. Nip, torch, glass of cup were put in a third box in order to trace out the finger prints.
Thereafter, he put the articles in a cloth parcel which was sealed with seal impression "T" at 15 places. PW-26 Insp. C.S.Bhangalia, has not deposed that while taking these articles into possession, he was wearing gloves. It was necessary for the I.O. to ensure that these articles were taken into possession by wearing gloves. Moreover, it was necessary to take ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 22 precautions while packing up the case property since the place where the dead body was found was open and accessible to all.
.
32. PW-11 DSP Rahul Sharma, Finger Print Bureau, Shimla has proved report Ext. PW-11/B. According to this report, the decipherable chance prints (1) Marked as "II" and the sample prints of left ring finger and (2) marked as "IV" and sample prints of left middle finger (on the sample slips of Divesh Vaidya) were the prints of one and same finger of the same person.
of The finger prints of accused Ritesh Handa, the chance prints marked as "I, III, V, VI & VII" were either sufficiently faint, blurred, super imposed or rt smudged having no required data and the chance prints were unfit for comparison. PW-11 DSP Rahul Sharma, has admitted in his cross-
examination that there should be proper handling of the material lying on the spot. The spot should not be disturbed in any manner prior to taking the material boxes and sending to the expert. The articles like glass and jar at the time of collection should not be touched with naked hands and if articles are touched by different persons from open space by the naked hands, there is possibility of identical marks of those persons.
33. Their lordships of the Hon'ble Supreme Court in the case of Mahmood vrs. State of Uttar Pradesh, reported in AIR 1976 SC 69, have held that when the specimen finger-prints of the accused were not taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act, it could not be read in evidence. It has been held as follows:
::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 23"16. Furthermore, the specimen finger-prints of the appellant were not taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. This is another suspicious feature of the conduct of investigation. It has not been .
explained why this Magistrate was kept out of the picture.
19. Lastly, it may be observe that Inspector Daryao Singh, P.W. 15, has not given any reasons in support of his opinion. Nor has it been shown that he has acquired special skill, knowledge and experience in the science of identification of finger-prints. It would be highly unsafe to convict one of a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under Section 45, Evidence Act."
of
34. The Division Bench of the Andhra Pradesh High Court in the case of Manepalli Anjaneyulu vrs. State of A.P., reported in 1999 Cri.
rt L.J. 4375, has held that in case where chance prints found at scene of offence and developed and photographed, the non-filing of photographs and no evidence produced to show that finger prints of accused were taken before Magistrate, no sanctity can be attached to such evidence. It has been held as follows:
"31. The prosecution relics on the evidence of finger print expert PW17.
According to him, some chance prints were found at the scene of offence, which were developed and photographed. Five finger prints were found suitable for comparison and when they were compared with the finger prints of the accused, it was found that print 'A' tallied with the finger print of the left ring finger of the fourth accused and prints 'B' and 'D' tallied with the thumb impression of the 6th accused and chance print 'R' tallied with the left index finger impression of the 3rd accused and the photo of chance print T' tallied with the left middle finger print impression of A3. Exs.P35 to P39 are the comparative charts relating to the chance finger prints with the identical finger ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 24 prints of the suspects. The learned trial Judge found that this evidence corroborates the other evidence of the prosecution to establish the participation of A3, A4 and A6 in the incident of dacoity. It may be .
mentioned that the photographer who took the chance finger prints has not been examined and the finger prints photographs taken have not been filed. There is nothing to show that the finger prints of the accused have been taken before the Magistrate. PW17 in his evidence merely slated that the finger print slips of five accused persons were received by him from the Inspector of Police, Tanuku on 15-10-1989 with which of he compared the chance finger prints. His evidence docs not reveal as to who took the finger prints of the accused and where they were taken. The concerned Inspector PW37 has nowhere stated in his evidence whether he has taken finger prints of the accused and if so whether he rt has taken them on his own or he has taken them in the presence of the Magistrate, though he speaks of having taken the specimen handwriting of A1. In the absence of such evidence, no sanctity can be attached to the evidence of finger print expert inasmuch as there is no evidence to show that the finger prints with which the chance finger prints were compared were those of the accused."
35. PW-26 Insp. C.S.Bhangalia, testified that search slip Ext. PW-
26/P and Ext. PW-26/Q were prepared by HC Bhup singh regarding rolled prints of deceased Govind Ram, but the fact of the matter is that Bhup Singh has not been examined by the prosecution.
36. The learned Single Judge of the Kerala High Court in the case of Ayyappan vrs. State of Kerala, reported in 2005 Cri. L.J. 57, has held that when there was no authentic and safe data to show that chance finger prints were properly lifted from scene and was made available for examination of expert and expert's report not revealing nature of comparison ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 25 effected or basis of opinion of expert as to how he reached conclusion that chance finger prints were that of accused, expert evidence and his report .
cannot be made foundation for conviction. It has been held as follows:
"11. The prosecution attempted to support the evidence of PW2 with the evidence of PW6 finger print expert and Ext.P4 report submitted by him. I have been taken through the evidence of PW.6 and Ext.P4. I am in agreement with the learned counsel for the petitioner that except to of indicate or explain why PW.9 suspected the petitioner/ accused, Ext.P4 and the evidence of PW.6 cannot be put to any other specific or satisfactory purpose. I am surprised to note the nature of the evidence tendered through PW.6. There is no authentic and safe data to show rt that chance finger prints were properly lifted from the scene and was made available for examination of PW6. The chance or specimen finger prints have not been proved in any manner known to law. Ext.P4 report does not reveal the nature of the comparison effected or the basis of the opinion of PW.6 as to how he reached the conclusion that the chance finger prints were that of the petitioner. In these circumstances, the evidence PWs.6 and Ext.P4 cannot also be of any crucial help to the prosecution. (sic) referred above identification by PW.2 or expert evidence in (sic) be made the foundation for conviction."
37. In the instant case, there is no evidence/data that chance finger prints were properly lifted from the scene and were made available for examination of expert. It has not come in the statement of PW-26 Insp.
C.S.Bhangalia, I.O. that he was wearing gloves and the scene of crime was properly sensitized. PW-26 Insp. C.S.Bhangalia, has also admitted that the dead body was lying in the open space and anybody could approach the place. Thus, there is sufficient evidence that lot of people had arrived on the ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 26 scene before the police came and thus, the case property being touched by other persons can also not be overruled.
.
38. PW-19 Dr. Rajesh Verma, Dy. Director, Physical Science Laboratory, Mandi visited the spot on 21.4.2013. He noticed dead body of male lying in a pool of blood. The articles lying on the spot were mentioned in his report Ext. PW-19/A. The place of occurrence was Hanumanghat Sarai near Victoria Bridge. He was accompanied by Dr. Naresh Sharma and of Sh. Sanjeev Singh. He has prepared report of articles lying on the spot.
According to his report, blood stains were observed on the side of cemented rt bench meant for sitting near the dead body. According to his report, it was a case of homicide. Though PW-19 Dr. Rajesh Verma in his report Ext. PW-
19/A has noticed only one empty wine bottle but PW-26 Insp.
C.S.Bhangalia, in his statement has deposed that in one room, two empty bottles of liquor, whereupon "Darling" label was there was lying at the radius of 20 feet from the dead body and red colour torch which was at the radius of 17 feet from the body of deceased were found and one nip whereupon "Master Blend" label was printed were found on the spot. In case two bottles and cups were lying on the spot, these could not skip the notice of PW-19 Dr. Rajesh Verma who has prepared report Ext. PW-19/A. In his report, there is mention of only one empty bottle and glass cups found on the spot. The statement of PW-26 Insp. C.S.Bhangalia is contrary to the details of case property given in Ext. PW-19/A. Thus, the possibility of two ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 27 bottles planted on the spot cannot be ruled out and the finger prints lifted from these articles are to be discarded.
.
39. PW-27 Dr. Aparna Sharma has proved DNA profiling report Ext.
PW-24/A. PW-27 Dr. Aparna Sharma has concluded that the DNA profile obtained from exhibit P-2d (blood lifted from body) completely matched with the DNA profile obtained from Ext. P-3b (pants of Ritesh Handa). According to her, there was only one stain on the back side of the pants. But, this was of insufficient for further serological examination as per report Ext. PW-7/A and no blood stains were seen at the time of recovery of pants vide Ext. PW-
9/A. rt
40. There is no evidence on record to prove as to who has searched for the weapon of offence i.e. sharp iron weapon in the water. The water shown in the photographs is apparently shallow and no one has entered the water. There is merit in the contention of Mr. Anoop Chitkara, Advocate for the accused that the theory of weapon has been introduced only after getting the opinion of the doctor qua injury No. 7. We have seen the photographs Ext. PW-16/A27, PW-16/A28, PW-16/A33 and PW-16/A35. The water is shallow and if accused Ritesh Handa has thrown the weapon of offence into the water, it could easily have been traced out. Nobody has even entered the river to find out the presence of weapon of offence i.e. sharp iron weapon.
41. The entire case of the prosecution is based on circumstantial evidence. In the case based upon circumstantial evidence, motive plays a very important role. There was no enmity between the accused and the ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 28 deceased. It is also not the case of the prosecution that quarrel has taken place on the spot. Had the quarrel taken place on the spot, it would .
definitely have been witnessed by the residents of the locality, as the place, according to PW-1 Dina Nath, PW-2 Parmod Kumar, PW-6 Kedar Nath, PW-
12 Parveen Sharma, PW-13 Constable Surinder Kumar and PW-26 Insp.
C.S.Bhangalia, Investigating Officer of the case, was thickly populated.
of
42. The Karamshala was not visible from the place where PW-6 Kedar Nath was residing. Thus, his statement that he has seen the accused entering Sarai from his quarter/room is not worth credence. The recovery of rt bamboo stick (danda) is also doubtful. The recovery of two bottles is also doubtful in view of the variance as per the details given in report Ext. PW-
19/A. The statement made by the accused Ritesh Handa to the effect that he had thrown the weapon of offence in river is also doubtful, more particularly in view of statements made by PW-4 Ravi Chandel and PW-5 Smt. Vidya Devi. According to PW-5 Vidya Devi, she has signed the blank papers and accused Ritesh Handa and witness PW-4 Ravi Chandel did not sign in her presence.
43. The theory of 'last seen together' has also not been proved conclusively by the prosecution since scene of crime was not visible from the room/quarter of PW-6 Kedar Nath, as per the statements of PW-1 Dina Nath and PW-2 Parmod Kumar. It has also come on record that the Sarai was ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 29 frequently visited by other Saints (Sadhus) and they used to stay there overnight.
.
44. Their lordships of the Hon'ble Supreme Court in the case of Ajit Singh Harnam Singh Gujral vrs. State of Maharashtra, reported in (2011) 14 SCC 401, have held that the duration of time between two events ought to be so small that possibility of any other person being author of crime can be ruled out. It has been held as follows:
of "27. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of rt any person other than the accused being the author of the crime becomes impossible, vide Mohd. Azad alias Samin vs. State of West Bengal 2008(15) SCC 449 = JT 2008(11) SC658 and State through Central Bureau of Investigation vs. Mahender Singh Dahiya 2011(3) SCC 109 = JT 2011(1) SC 545, S.K. Yusuf vs. State of West Bengal, J.T. 2011 (6) SC 640 (para14).
28. In our opinion, since the accused was last seen with his wife and the fire broke out about 4 hours thereafter it was for him to properly explain how this incident happened, which he has not done. Hence this is one of the strong links in the chain connecting the accused with the crime.
29. The victims died in the house of the accused, and he was there according to the testimony of the above witnesses. The incident took place at a time when there was no outsider or stranger who would have ordinarily entered the house of the accused without resistance and moreover it was most natural for the accused to be present in his own house during the night."
45. Their lordships of the Hon'ble Supreme Court in the case of Dandu Jaggaraju vrs. State of Andhra Pradesh, reported in (2011) 14 SCC 674, have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 30 prosecution. It is this circumstance which often forms the fulcrum of prosecution story. It has been held as follows:
.
"9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant.
There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive of is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story."
46. rt Their lordships of the Hon'ble Supreme Court in the case of Sathya Narayan vrs. State rep. by Inspector of Police, reported in (2012) 12 SCC 627, have held that in the case of circumstantial evidence, motive also assumes significance since absence of motive would put Court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omissions or conjectures do not take place of proof. It has been held as follows:
"42) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust."::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 31
47. Their lordships of the Hon'ble Supreme Court in the case of Majenderan Langeswaran vrs. State (NCT of Delhi) and another, .
reported in (2013) 7 SCC 192, have held that onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. It has been held as follows:
of "3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the rt matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996.::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 32
16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing .
murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.
17. In the case of Hanumant Govind Nargundkar vs. State of M.P., AIR of 1952 SC 343, this Court observed as under:
"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 rt all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ...."
18. In the case of Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) 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 and such evidence should not only ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 33 be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)"
.
19. In the case of C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved of circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
rt
20. In the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v.
State of A.P., (2005) 7 SCC 603)."
21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that:::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 34
"17. At this stage, we also deem it proper to observe that in exercise of power underArticle 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which .
is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court--Bharat v. State of M.P., (2003) 3 SCC 106. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime."
22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests of squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable rt doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
"23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 35 effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of .
these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the of accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
24. In the case of Rajendra Pralhadrao Wasnik vs. State of rt Maharashtra, (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under:
"12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
25. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289, this Court while reiterating the above principles further added that:
"28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 36 circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable .
doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v.
State of Maharashtra, (2008) 15 SCC 269)"
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to of circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else."
48. Their lordships of the Hon'ble Supreme Court in the case of rt Rishipal vrs. State of Uttarakhand, reported in (2013) 12 SCC 551, have held that motive does not have a major role to play in cases based on eye witnesses account of incident but it assumes importance in cases that rest entirely on circumstantial evidence. Their lordships have further held that circumstances sought to be proved against accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. It has been held as follows:
"15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 37 car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for .
that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.
19. rtIt is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."
49. The prosecution has failed to prove the chain of events in the instant case. The circumstantial evidence is too shaky, suspicious and fragile to render the sound foundation for conviction. The circumstances, ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 38 from which the ends of guilt was to be drawn, has not been fully established by unimpeachable evidence, beyond shadow of doubt. Thus, the .
prosecution has failed to prove the case against the accused persons beyond reasonable doubt. This is a fit case, in our opinion, where the accused are entitled to benefit of doubt.
50. The learned trial Court while convicting the accused had come to the conclusion that accused had motive to kill the deceased since he had of obstructed them not to have drinks in Hanumanghat Sarai. There is absolutely no evidence to come to this conclusion.
51. rt We have already noticed that the water where the weapon of offence allegedly was thrown was shallow and no effort at all has been made to trace the same. The weapon of offence, being sharp iron weapon, could not be carried away by the water. Thus, the findings recorded by the learned trial Court that the accused have tried to destroy the evidence is also contrary to evidence.
52. Mr. P.M.Negi, Dy. Advocate General, has vehemently argued that the accused are hardened criminals. FIR has been registered against accused Ritesh Handa in case FIR No. 174/11 under Sections 342, 504, 323 read with Section 34 IPC and in case FIR No. 1/12 under Sections 341, 382, 506, 457, 380 read with Section 34 IPC. Similarly, against accused Divesh Vaidya alias Mukhiya, two FIR Nos. 128/2006 and 204/2009 under Sections 20 & 21 of the ND & PS Act and FIR No. 309/10 under Section 20 of the ND & PS Act, FIR No. 205 /12 under Sections 457, 511 IPC and FIR ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 39 No. 35/05 under Section 457, 380, 511 read with Section 34 IPC, have been registered. The bad conduct cannot be taken into consideration as laid .
down under Section 54 of the Indian Evidence Act unless and until the defence is taken that accused have good character.
53. Their lordships of the Hon'ble Supreme Court in the case of Ram Lakhan Singh and others vrs. The State of Uttar Pradesh, reported in AIR 1977 SC 1936, have held that in Indian system of law, an of accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rt rebuttal, evidence of bad character may be adduced. It has been held as follows:
"23. Although the judgment of the Sessions Judge is otherwise an exhaustive judgment it cannot be said from the instances which we have set out above that his appreciation is free from legal infirmity of some kind of prejudice against the accused who are described as "law breakers". In our system of law an accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rebuttal, evidence of bad character may be adduced (Section 54 of the Evidence Act)."
54. There is absolutely no evidence on record to suggest even remotely that the accused had intention to rob the deceased. The deceased only used to collect scrap and there is no evidence that the accused had any motive to rob him. Nothing was found missing and no money etc. has been recovered from the accused.
55. Accordingly, in view of the analysis and discussion made hereinabove, the appeals are allowed. Judgment and order of conviction and ::: Downloaded on - 15/04/2017 19:38:28 :::HCHP 40 sentence dated 29.6.2015 and 30.6.2015, respectively, rendered by the learned Addl. Sessions Judge(II), Mandi, H.P., in Sessions trial No. 36 of .
2013, is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case.
of
56. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in rt conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
January 01, 2016, ( Sureshwar Thakur ),
(karan) Judge.
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