Himachal Pradesh High Court
State Of Himachal Pradesh vs Vikas & Others on 17 November, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 294 of 2016 Reserved on: 02.11.2017 Decided on: 17.11.2017 .
__________________________________________________________ State of Himachal Pradesh .....Appellant.
Versus
Vikas & others ......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. V.S. Chauhan, Additional Advocate General with Mr. J.S. Guleria, Assistant Advocate General.
For the complainant: Mr. Shivank Singh Panta, Advocate.
For respondents No. 1, 5 & 6: Mr. Shanti Swaroop, Advocate.
For respondents No. 2, 3, 4, 7, 8 & 9: Mr. Ajay Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State laying challenge to judgment dated 11.01.2016 passed by learned Additional Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 20 of 2014, whereby the accused/respondents (hereinafter referred to as "the accused persons") were acquitted for the offences punishable under Sections 147, 341, 323 and 302 of Indian Penal Code, 1860 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 2(hereinafter referred to as "IPC").
2. The factual matrix, as per the prosecution story, may succinctly be summarized as under:
.
On 05.02.2014, at about 04:05 p.m. Shri Sansar Chand (complainant) got his statement recorded before the police, wherein he has stated that he has three sons, namely, Sanjay Kumar, Sunit Kumar and Satish Kumar. He has further deposed that his youngest son, i.e., Satish Kumar (hereinafter referred to as "the deceased"), who was serving in Indian Army had come on leave and was to return on 05.02.2014. On 04.02.2014, the deceased, in order to bring Aadhar Card of his brother Sanjay, went to Palbhu, but he did not return. On the night of 04.02.2011, at about 12:00-12:15 a.m., the nephew of the complainant, Shri Sunil Kumar, came and inquired about the deceased. The complainant inquired from his daughter-in-law, who disclosed that the deceased had not returned and was not responding to the phone calls. Shri Sunil Kumar disclosed that one Vicky resident of Thala informed him over phone that near Palbhu/Bajrol the deceased was held up by a big gang.
Thereafter, the complainant alongwith Shri Sunil Kumar, Shri Ajit Singh and Shri Vicky went in search of the deceased to Palbhu/Bajrol, but they could not find him due to darkness. The complainant, in order to inform the police, called Vice President, ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 3 Gram Panchayat Bajrol, who came on the spot. The corpse of the deceased was found on 05.02.2014, at about 01:30 p.m., from Kapati Nallah, near Hanuman Temple in between Palbhu-II and .
Palbhu-III and he was lying with his head downside. The body of the deceased was having injuries. It came to the knowledge of the complainant that one Vikas son of Shri Satish, who is resident of Bajrol, alongwith four-five others quarreled with the deceased on the intervening night of 04/05.02.2014, so the complainant raised suspicion that Vikas etc. could have killed the deceased and threw his dead body in the Kapati Nallah. On the basis of the statement, so made by the complainant, police machinery was set into motion, FIR was registered and investigation ensued. During the course of investigation spot map was prepared and spot was photographed.
The dead body of the deceased was sent to R.H. Hamirpur, for postmortem and report thereof was obtained. The doctor concerned preserved viscera alongwith clothes worn by the deceased and the same were handed over to the police for forensic analysis. The slippers, muffler and mobile phone, which was inside his pocket, of the deceased were also taken into possession. A big stone, which was below the head of the deceased, alongwith control sample of soil and blood, was taken into possession from the spot. The police, on 06.02.2014, got inspected the spot from Forensic Team consisting of ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 4 Assistant Director Shri Tek Chand and others. At the instance of Forensic Team, stones, blood stained soil, control sample, blood stained grass, twigs of shrubs, blood stained straws and two blood .
stained stones were taken into possession. The report of the Forensic Team was also procured. It was unearthed, during the course of investigation that on 04.02.2014, at about 08:30 p.m., the deceased alongwith Shri Manjit was returning home on his motorcycle and en route they were intercepted between Palbhu-II and Plabhu-III by the accused persons. The accused persons gave beatings to Manjit and he, by running away saved himself, but the deceased could not escape and his dead body was found on 05.02.2014 in Kapati Nallah, near Hanuman Temple, in between Palbhu-II and Plabhu-III. The corpse of the deceased was thrown by the accused persons in Kapati Nallah. The accused persons were arrested and accused Vikas made a disclosure statement to the police in presence of witnesses Shri Julfi Ram and Shri Kuldeep Singh. On the basis of the said disclosure statement, a stick was recovered from a cave near Hanuman Temple. Police prepared the spot map and the motorcycle of the deceased was also taken into possession. The spot, wherefrom the motorcycle was taken into possession, was photographed. The revenue record, qua the spot wherefrom the corpse of the deceased was recovered, was taken into ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 5 possession. Injured Manjit was medically examined. Report from RFSL was also obtained and as per the final opinion of Dr. Rakesh Dhiman, all the injuries, so mentioned in postmortem report were .
ante mortem in nature and could be possible by fall from a height and in a quarrel with some person and caused by blunt weapon. The statements of the witnesses were recorded and recording of some statements were also videographed. After conclusion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as twenty two witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty. The accused persons did not lead any evidence in their defence.
4. The learned Trial Court, vide impugned judgment dated 11.01.2016, acquitted the accused persons of the offences punishable under Sections 147, 341, 323 and 302 IPC, hence the present appeal.
5. The learned Additional Advocate General has argued that the judgment of the learned Trial Court, acquitting the accused persons, is wrong both on facts and law as the same is based upon hypothetical reasoning, conjectures and surmises, so it is liable to be set-aside. He has further argued that the learned Trial Court has ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 6 not appreciated the evidence in right and correct perspective. In view of direct evidence of PW-11, Shri Manjit (injured), and also in the wake of circumstantial evidence, the prosecution has clearly .
established the guilt of the accused persons. The learned counsel for the complainant argued that recovery of danda alongwith other circumstantial evidence proves the guilt of the accused persons beyond the shadow of reasonable doubt. Conversely, learned counsel for the respondents have argued that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt and the judgment of acquittal passed by the learned trial Court is just, reasoned and needs no interference. He prays that the appeal may be dismissed.
6. In order to appreciate the rival contentions of the parties we have gone through the record carefully.
7. In the case in hand, the statement of PW-11, Shri Manjit, is very material. As per the prosecution story, the deceased and PW-
11 were together when accused persons intercepted them. The statement of PW-11, Ex. PW-22/P, was recorded by the police on 05.02.2014, i.e., on the subsequent day of occurrence.
8. PW-11, Shri Manjit, while appearing in the witness box, has deposed that on 04.02.2014 he alongwith the deceased went to Bajrol-Palbhu for attending marriage of Naveen and there they had ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 7 drinks. He further deposed that some boys were quarreling there.
On their return journey, three boys stopped them and one of the boy was saying to let them go, as they were not the persons, whom they .
are looking for. When they proceeded 200-300 meters further therefrom, 8/10 boys stopped them and despite being told that they are not the persons whom they are looking for, accused Vikas started beating him with a stick and 2/3 boys caught hold of him.
He tried to rescue himself and in that process his coat got torn and he jumped down from the road into the Nallah. He telephonically tried to contact the deceased, but he did not respond. Subsequently, he called PW-16, Shri Vicky @ Vijay, who alongwith one Satish Kumar came there and he disclosed the incident to them. He further deposed that when he was in nallah, he saw the motorcycle going towards Kakkar side, however, immediately it returned to Sujanpur side. As per this witness, the boys from the road were asking him to come, otherwise threatened to throw the motorcycle. He alongwith PW-16 again tried to contact the deceased, but to no avail and mobile of the father of the deceased was switched off. He has further deposed that on being asked by PW-16, he drove the motorcycle towards the house of the deceased, but it was parked outside the shop of Vijay Pal, as they were being chased by three motorcyclists.
This witness identified the accused persons in the Court. He has ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 8 categorically deposed that he received injury inflicted by accused Vikas with a stick on his right ear and above same in skull. PW-14, Dr. Rajinder Singh, medically examined PW-11 on 08.02.2014 and .
as per his Medico Legal Certificate, Ex. PW-14/B, the following injuries were found:
"One abrasion behind left ear on middle part having size 0.5 x 0.5 cm was covered with brownish scab".
PW-14, in his cross-examination, deposed that no injury, healed or fresh, was noticed on the right side either on front or back of the injured. The doctor opined the probable duration of injury on the person of injured Manjit 96 hours. Therefore, the statement of PW-
11, i.e., injured Manjit, who is key prosecution witness, in the facts and circumstances of the case, is belied by the statement of PW-14, Dr. Rajinder Singh.
9. As per the prosecution case PW-16, Shri Vijay, disclosed the occurrence to PW-12, Shri Ajit, who further divulged the same to PW-2, Shri Sunil, and PW-2, ultimately informed PW-1, Shri Sansar Chand, father of the deceased. They all collectively searched the deceased and visited the house of PW-3, Shri Harnam singh, Vice President of Gram Panchayat, Bajrol, who informed the police, vide rapat, Ex. PW-17/A.
10. PW-1, Shri Sansar Chand (father of the deceased), ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 9 deposed that PW-2, Shri Sunil, came to his house at about 12:12 a.m. and inquired about the deceased. He further deposed that PW-
16, Shri Vijay Kumar, telephonically informed him that the deceased .
had been held by a big gang, near Hanuman Temple at Palbhu/Bajrol. As per this witness, he alongwith PW-2, Shri Sunil, PW-12, Shri Ajit Singh, and PW-16, Shri Vijay Pal, went in search of the deceased to Palbhu/Bajrol, but due to darkness the deceased could not be found. Approximately 100-150 yards from Hanuman Temple, towards Bajrol, 10-12 boys were standing armed with dandas and they tried to stop them. He further deposed that they returned to the village and at about 03:30 a.m. they again went to the spot in two vehicles. Subsequently, they went to the house of President, Gram Panchayat, Bajrol, and informed her qua the missing of the deceased, however, she did not inform the police. PW-
11, Shri Manjit, was with him and he recognized the persons present in the night and also when the police reached the spot. PW-1 has further deposed that PW-11, Shri Manjit, told him that accused persons gave beatings to him and to the deceased, consequently the deceased died, but PW-1 in his statement, Ex. PW-1/A, has not stated so. Apparently, there are major visible lacunae in the statements of PW-1 given to the police and that recorded in the Court. PW-1 in his statement, Ex.PW-1/A, given to the police stated ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 10 that PW-2 informed him that a big gang has held up the deceased near Palbhu/ Bajrol. Subsequently, he alongwith PW-2, PW-12 and PW-16 went to the spot and due to darkness the deceased could not .
be found and in the morning of 05.02.2014 he, alongwith villagers, again went to the spot. Vice President Gram Panchayat, Bajrol, was called on the spot to inform the police and on being searched by police and local people the corpse of the deceased was recovered from Kapati Nallah, in between Palbhu-II and Palbhu-III. He further stated in his statement given to the police that he came to know that accused Vikas alongwith his 4-5 friends quarreled with the deceased.
He apprehended that the deceased was killed by them and his dead body was thrown in the Kapati nallah. The statement of PW-1 under Section 154 Cr.P.C. was recorded on 05.02.2014, at about 04:05 p.m., i.e., on the subsequent day of alleged occurrence, so he could have portrayed the same with utmost exactitude, but he nowhere stated that during the night, on their first visit to Palbhu/Bajrol, 10- 12 boys were standing on the road at a distance of about 100-150 yards from Hanuman Temple towards Bajrol and they tried to stop them. In fact, there was no reason for PW-1, Shri Sansar Chand (father of the deceased) not to disclose what had exactly happened and his statement was recorded at the earliest, so there is also no occasion of his being forgetting the sequence of events. PW-1 in his ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 11 statement, Ex. PW-1/A, given to the police nowhere stated that PW-
11, Shri Manjit, identified the accused persons or divulged their names. Thus, in ratiocination, the statement of PW-1, when seen .
viz-a-viz with his testimony made in the Court, there are major improvements and these improvements result in rendering the same as unreliable and untrustworthy.
11. PW-2, Shri Sunil Kumar, deposed that on 05.02.2014, at about 00:15 a.m. Shri Ajit Kumar (PW-12) telephonically asked him to open the door and he informed him that the deceased and Shri Manjit (PW-11) had gone to a marriage ceremony at Bajrol, where a quarrel took place and the deceased was missing since then. He further deposed that he called Shri Sansar Chand (PW-1), but his mobile was switched off, so he alongwith PW-12 went to the house of PW-1. Thereafter, he alongwith Shri Sansar Chand and Shri Ajit went to the house of Shri Vicky, wherefrom they alongwith him went to the place of occurrence. They made telephonic calls on the mobile of the deceased and searched him. It was told to them by Shri Vicky that he alongwith Shri Manjit took the motorcycle and parked the same in front of his shop. He has further deposed that when they were turning the vehicle, approximately 300 meters from the spot, 8- 10 boys were standing amidst the road. PW-1 asked to a boy to get aside, who remained standing on the road. He also saw accused ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 12 Vikas, but his name was not known to him and in the morning he came to know about his name. As per this witness, in the morning around 04:00 a.m., they again went to the spot with villagers, but .
the deceased could not be found. Thereafter, they went to the house of President of village Bajrol, but she did not inform the police for two hours. He has further deposed that some person from them informed the Vice President of Bajrol, who reached the spot and he subsequently informed the police. When police reached there, they all were in the house of President of village Bajrol. In the interregnum, accused Vikas also reached there. They all made search for the deceased, but he could not be found. The dead body of the deceased was found during day time in Kapati Nallah. By the time he reached the spot, the police had already brought his dead body on the road. As per this witness, after two-three days he came to know that accused Vikas, Raman, Tilak, Atul, Pankaj etc. were involved in killing the deceased. This witness, in his cross-
examination, has deposed that he had told the police that they were going 300 meters ahead from the place of occurrence to turn their vehicle and during that accused Vikas and others met them, but in the statement given to the police it is not so recorded.
12. PW-3, Shri Harnam Singh, the then Vice President of Gram Panchayat Bajrol, deposed that on 05.02.2014, at about 06:30 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 13 a.m., he received a telephonic call from one Swarup Singh, who asked him to come to the house of Smt. Sumna, President Gram Panchayat Bajrol, where he alongwith others was present. As per .
this witness, he met there PW-1, Shri Sansar Chand, and he narrated the incident to him. Subsequently, he informed the police and the police reached there at about 08:30 - 09:00 a.m. At about 01:30 p.m. the dead body of the deceased was found in Kapati Nallah and the same was brought on the road by the time he reached there. He has further deposed that there were injuries on the person of the deceased. Police took into possession control sample of soil and blood stained soil from the spot of occurrence, which were sealed in separate cloth parcels having seal impression 'A'. In the presence of this witness, Police took into possession various samples and sealed the same. As per this witness, the parcels were taken into possession vide seizure memo, Ex. PW-3/A, which bears his signatures encircled in red. He has further deposed that on the same day Police also took into possession blood from the spot with the help of cotton and the same was put in a plastic container which was sealed in a cloth parcel and sealed with seal impression 'D'. Mobile phone of the deceased, make Samsung, was also taken into possession by the Police. This witness, in his cross-
examination, deposed that he did not disclose to the Police that at ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 14 about 7:00 a.m, when he was present near Hanuman Temple at Palbhu, PW-1, Sh. Sansar Chand, met him and he requested him to inform the Police telephonically and in the statement given by this .
witness to the Police it is not so recorded. He has further deposed that he remained in the house of Smt. Sumana Devi for 1 to 1½ hours and in his presence Sh. Manjit (PW-11), did not divulge any name of the persons who were involved in the incident. He did not inform the Police about the quarrel which took place in the marriage, he only reported qua a quarrel having taken place.
13. PW-4, Sh. Subhash Chand, shopkeeper, deposed that on 06.02.2014, he alongwith one Bhim Singh were present with the Police at Kapati Nallah and in their presence, Police and team of RFSL collected physical and chemical evidence from the spot. He further deposed that the dead body of the deceased was found approximately 45 feet from a big stone whereon blood stains were present. As per this witness, blood stained soil and a stone which was at a distance of 30 feet were taken into possession. He further deposed that blood stained soil near the dead body of the deceased was also taken into possession. Blood stained grass, twigs of shrub, sleeper and muffler of the deceased were also taken into possession and wrapped in a paper. Two blood stained small stones were also taken into possession and wrapped in a paper. As per this witness, ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 15 all the articles were kept in a cloth parcel, which was sealed with 8 seals having impression 'A' and the same was taken into possession vide seizure memo, Ex. PW-4/A, which bears his signatures .
encircled in red circle 'A'. This witness, in his cross-examination, has deposed that sleepers and muffler were not sealed in his presence and he feigned ignorance as to who has lifted the same from the spot.
14. PW-5, Sh. Krishan Chand, deposed that on 04.02.2014, there was a marriage in the family of Sh. Hari Chand in village Palbhu and he was present there. As per this witness, at about 8:30 p.m., he met the deceased. The deceased inquired about the Aadhar Card. This witness, in his cross-examination has deposed that the deceased at the relevant time was drunk and no quarrel took place in his presence. PW-6, Sh. Julfi Ram, deposed that on 09.02.2014, he alongwith Sh. Kuldip remained associated with the Police at Police Station Sujanpur. In his presence, accused Vikas made a statement, Ex. PW-6/A, under Section 27 of the Indian Evidence Act.
The said statement was signed by him and by Sh. Kuldip.
Subsequently, they alongwith the Police went to the spot of occurrence and near Hanuman Temple accused Vikas alighted from the vehicle and he got recovered a bamboo stick from the bushes situated on a curve. The bamboo stick was measured by the Police ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 16 and put in a white cloth parcel, which was sealed with 6 seals, having seal impression 'M' and the same was taken into possession vide seizure memo, Ex. PW-6/B, which bears his signature encircled .
in red circle 'A'. As per this witness, Sh. Kuldip has also signed the same and seal after use was entrusted to Sh. Kuldip. This witness, in his cross-examination, has deposed that Sh. Sansar Chand (PW-1) informed him that the Police had called them. Sh. Sansar Chand and Sh. Kuldip are his brothers. As per this witness, no local person was associated on the spot for the proceedings by the Police. The bamboo stick was concealed in the grass.
15. PW-7, Sh. Kuldip Singh, has deposed that on 09.02.2014, he alongwith Sh. Julfi Ram remained associated with the Police. This witness also supported the version of PW-6, Sh. Julfi Ram. This witness, in his cross-examination, has deposed that he was called by the Police telephonically and also through a Police messenger. He has further deposed that he and PW-1, Sh. Sansar Chand are from same family. PW-8, Sh. Parma Nand, deposed that on 09.02.2014, he alongwith one Kashmir Singh was associated by the Police and in their presence one Vijay Kumar produced motorcycle having registration No. HP-22A-7372. As per this witness, the motorcycle was identified by Sh. Sansar Chand (PW-1) to be of the deceased. The motorcycle was taken into possession and handed ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 17 over to Sh. Sansar Chand on sapurdari, vide memo, Ex. PW-1/B. He and Sh. Kashmir Singh signed the said memo. This witness, in his cross-examination, has deposed that in his presence, Vijay Kumar .
did not state that he brought the motorcycle from the place of occurrence to his house by himself driving it, whereas in the statement given to the Police it was not so recorded.
16. PW-9, HHC Vijay Kumar, deposed that on 05.02.2014, Investigating Officer handed over to him dead body of the deceased alongwith forms 25:35 A, B, C and 25:39 for conducting postmortem of the deceased at RH Hamirpur. On 06.02.2014, postmortem of the dead body of the deceased was conducted and the Medical Officer entrusted him four parcels, which were stated to have contained viscera of the deceased. Three parcels were sealed with two seals each of DHH and one parcel had three seals, having impression DHH. An envelope was also handed over to him, which was having three seals of impression of DHH and the sample seal DHH. As per this witness, he handed over the above parcels, envelope and sample seal to MHC, Police Station, Sujanpur. The case property under his custody remained intact.
17. PW-10, Shri Rajesh Kumar, Assistant Director, Physics and Ballistic, RFSL, Mandi, has deposed that five sealed parcels were received in the laboratory on 11.03.2014 for chemical analysis. As ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 18 per this witness, the sealed parcels were intact and the same were tallied with specimen seals, which were being provided by the Biology and Serology Division of the Laboratory. This witness, after .
examining the exhibits, opined as under:
"1. Graze marks were present on the exhibit E/1a, E/1c, E1/d, E/4a and E/4b.
2. Torn marks on Exhibit E/1a and E/1c could have been caused due to grazing.
3. Contours of broken edges of Exhibit E/5a have the physical fitness with the contours of broken edges of Exhibit E/5b so Exhibit E5/a and E/5b are the broken piece of same stone.
4. Soil adhere to E/1a and E/1c is insufficient for further examination. Soil was not adhered to Exhibit E/1b, E/1d, E/1e, E/4a, E/4b and E/4c."
18. PW-11, Shri Manjit Singh, who is key prosecution witness has deposed that on 4.9.2014, he alongwith the deceased went to Village Bajrol for attending marriage of one Naveen. As per this witness, they had drinks and danced for some time.
Subsequently, some boys from Villages Jiana and Bajrol quarreled and they had no concern with the quarrel. He has further deposed that they started their return journey and when they started their motorcycle, three boys spotted them and they told that they are not the persons whom they are looking for. When they reached Hanuman Temple, 8-10 boys stopped them and they also told that ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 19 they are not the persons whom they are looking for, however, accused Vikas, who was present there with a stick, alongwith two-
three boys caught hold of him and started beating him. In a process .
of rescuing himself, his coat got torn and he jumped into the nallah.
He has further deposed that thereafter he made calls to the deceased but he did not respond. After some time, he made a telephone call to Shri Vijay Kumar, Vice President, who gave telephone number of his friend Vipan, but said Shri Vipan did not pick the call. He further deposed that he again made a call to Vijay Kumar, who refused to come alone. Thereafter, he made telephone call to one Shri Satish Kumar and subsequently, Shri Satish Kumar and Shri Vijay Kumar came on the spot together. He has further deposed that when he was in the nallah, he saw motorcycle being plied towards Kakkar side, but immediately, motorcycle returned towards Sujanpur side.
The boys from the road were asking him to come on the road otherwise the motorcycle would be thrown down. When Shri Vijay Kumar and Shri Satish Kumar reached on the spot, they made a telephone call to him and he came on the road. Thereafter, he narrated the entire incident to them. Thereafter, all of them tried to locate the deceased and contacted him telephonically, but he did not respond. Subsequently, Shri Vijay Kumar asked him to go to the house of the deceased on the motorcycle to inquire whether the ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 20 deceased was there. Shri Vijay Kumar also telephoned father of the deceased, but his phone was switched off. As per this witness, when he drove the motorcycle from the spot, three motorcycles chased .
him, so, he parked the motorcycle in front of the shop of Shri Vijay Kumar. He sustained injury on his right ear and above the same in skull. He was medically examined. This witness has named the accused persons. This witness, in his cross-examination, has deposed that he could not recognize the other accused persons except Vikas by their names. He has further deposed that accused Vikas disclosed the names of other accused persons and then he came to know about the names of other accused persons. As per this witness, all the accused persons were having sticks in their hands and they gave beatings to him. As per this witness, he only disclosed the name of accused Vikas to Sansar Chand and other persons. He further deposed that he, alongwith Sansar Chand and other persons narrated the incident to the husband of President, but, PW-11 did not disclose the same fact to the police. When the dead body of the deceased was recovered, he was in Police Station, Sujanpur. The place where the incident occurred has no lights and due to darkness, he could not see who was riding the motorcycle and went towards Kakkar and immediately returned. He further deposed that he could not see the deceased running from the spot. In his ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 21 presence, accused Vikas divulged the names of other accused persons.
19. PW-12, Sh. Ajit Singh, deposed that during the night of .
4/5.02.2014, around 12:00 O'clock, he received a call from Vicky, who informed him that Manjit and the deceased have been held by big gang. He disclosed this fact to his brother Sunil Kumar and both of them went to the house of the complainant (PW-1). PW-1, inquired from his daughter-in-law qua the deceased, but the deceased was not in the house. The deceased was not responding to his telephone calls. Thereafter, at about 12:15 a.m., he alongwith Sunil, Vicky and Sansar Chand went to village Palbhu in search of the deceased. As per this witness, 8-10 boys met them on the road. The deceased could not be traced, so they returned. At about 03:00 a.m., 10-15 persons again went to the spot in three vehicles, but the deceased could not be traced. Thereafter, they went to the house of President, but she did not inform the police, so Vice President was called and he informed the police. He has further deposed that he alongwith the police searched the deceased and at about 01:00 p.m. the dead body of the deceased was found in Kapati Nallah, deceased was lying towards down side. Police prepared the spot map and filled form, which was signed by him and one Narinder Kumar. As per this witness, on 05.02.2014 police took into possession, vide seizure ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 22 memo, Ex. PW-12/A, slippers and muffler of the deceased and sealed the same in a cloth parcel having five seals with impression 'H'. His signatures in the seizure memo are encircled in red circle 'A' and .
Shri Narinder also signed as a witness. He has further deposed that police, with the help of cotton, also lifted blood from the spot where the dead body was lying and it was sealed with four seals, having impression 'D'. A mobile phone was also taken into possession from the pocket of the deceased and the same was sealed in a cloth parcel with four seals, having impression 'D'. As per this witness, both the parcels were taken into possession vide memo, Ex. PW-3/B, which was signed by him and by Shri Narinder. He has further deposed that on the same day police also took into possession a big stone stained with blood, vide seizure memo, Ex. PW-12/B, which was lying below the dead body of the deceased and the same was put in a cloth parcel, which was sealed with four seals, having impression 'S' and the seal, after its use was handed over to witness Shri Narinder Kumar. He has further deposed that on the same day, police took into possession blood stained soil and control sample of soil from the spot and sealed the same in two different parcels. Both these parcels were taken into possession vide memo, Ex. PW-3/A, which bears his signatures encircled in red circle 'B'. This witness, in his cross-examination, has deposed that when they went from Kakkar ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 23 side towards Bajrol, some boys were standing on left side and others on the right side. They went ahead about 100-150 meters from the spot where the boys were standing and then they returned. He could .
not identify any of the boys standing there.
20. PW-13, Shri Rahul Singh alias Bholu, deposed that on 04.02.2014 he went to a marriage at village Palbhu where Vikas met him. As per this witness, Vikas and Pankaj Chandel slapped him.
His brother came to know about this and he slapped Vikas and Pankaj Chandel. Subsequently, friends of Vikas and Pankaj came there and threatened them not to come towards the road side otherwise they would do away with their lives. This witness identified the boys who threatened them in the Court as accused persons. He has further deposed that on 05.02.2014, at about 08:30 a.m., he came to know that Vikas, Pankaj and their friends gave beatings to Manjit and the deceased at Kapati nallah. He, later on, also came to know that the deceased was killed. He apprehended that the deceased was killed by Vikas, Pankaj and his friends. This witness, in his cross-examination, has deposed that he came to know about the incident through Shri Manjit (PW-11), who disclosed the same telephonically, however, he did not divulge the same to anyone. As per this witness, except him and his brother the accused persons did not quarrel with anyone else. The testimony of this ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 24 witness is of hearsay in nature with regard to the incident which took place on the road with Shri Manjit (PW-11) and the deceased, so much reliance cannot be placed on his deposition qua the incident.
.
21. PW-14, Dr. Rajinder Singh, Medicial Officer, CHC, Sujanpur Tihra, deposed that on 08.02.2014, at 12:15 p.m., police moved application, Ex. PW-14/A, for medical examination of Shri Manjit Singh. He examined him and observed one abrasion behind left ear on middle part having size 0.5 x 0.5 cm was covered with brownish scab. The aforesaid injury was simple and probable duration was within 96 hours. He issued Medico Legal Certificate, Ex.PW-14/B. This witness, in his cross-examination, has deposed that the injury, as mentioned in Medico Legal Certificate, Ex. PW-
14/B, is not possible with curve and flat side of stick, Ex. P-19. He did not notice any injury, healed or fresh, on right side either on front or back of Shri Manjit.
22. PW-15, Dr. Rakesh Dhiman, Medical Officer, RH, Hamirpur, conducted postmortem of the dead body of the deceased and observed as under:
"1. Lacerated wound 6x5 cm on left parietal area of skull, bone deep and clotted blood present;
2. Lacerated wound 7x5 cm on left parietal area 2 cm just in front of injury No. 1 and clotted blood present;
3. Lacerated wound 1x.5 cm on left upper eye lid and clotted blood present;
4. Lacerated wound 0.5x0.5 cm on right eye lid with clotted blood present;
5. Abraded contusion 9x2 cm transversely placed ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 25 on back and reddish blue;
6. Grazed abrasion 2 in number on lower back, 3x1 cm and 2x1 cm with clotted blood present;
7. Grazed abrasion 3x1 cm on left thigh and reddish blue."
.
On reflecting the scalp a big contusion of 12x8 cm was found present on left side of parietal area with linear fracture of skull parietal and temporal bone left side with gross extra dural and sub arachnoid hemorrhage. He preserved viscera and clothes of the deceased and handed over the same to the police for chemical examination. Ethyl alcohol was detected in the viscera and the blood of the deceased, quantity whereof was found 130.15 mg%. As per the final opinion of this witness, all the injuries mentioned in postmortem report, Ex.PW-15/B, were ante-mortem in nature and could be possible by a fall from a height and in a quarrel with some person and caused by blunt weapon. This witness, in his cross-examination, admitted that injuries found on the dead body of deceased are possible in straight fall downward on head side. PW-15 has deposed that urinary bladder of the deceased was found empty, so it can be said that prior to his death, he urinated and might have died due to fall. This view is further fortified by report of Forensic Team, which is Ex. PW-20/A. As per the report, neither signs of any disturbance nor any incriminating evidence could be detected at spot-1, where, as per the prosecution, Shri Manjit (PW-11) was restrained. Likewise, no signs ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 26 of disturbance of soil and grass were observed from edge of the road to a distance of 1½feet in horizontal distance towards hill gradient at spot-3, where the fall is alleged to have taken place.
.
23. Another important witness in the present case is PW-16, Shri Vijay Pal alias Vicky. He has deposed that on 04.02.2014, at about 10:30 p.m., PW-11, Shri Manjit, who is his servant telephoned him and informed that 10-15 boys, near Hanuman temple, are quarreling and beating him and the deceased. As per this witness, Manjit further told that he is hiding in a Nallah at Plabhu and none of his friends are picking up his phone. PW-1 telephoned Shri Satish, who was also his servant and subsequently he alongwith Satish went to the spot. En route he stopped a car and enquired from the occupants qua taking place of some quarrel. The occupants told him that a quarrel took place, but the same now had ended and no one is present there. On reaching the spot of occurrence, he called Manjit, who came out from the place where he was hiding. Then Manjit narrated the occurrence to him. He also made telephonic calls to the deceased, but he did not respond. They searched the deceased, but in vain. Subsequently, he telephoned the complainant (PW-1), however, his phone was switched off. When the deceased could not be traced, he returned home. At about 11:30 p.m. Sunil Kumar, Ajit Kumar, Sansar Chand came to his house and he accompanied them ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 27 to the spot, but again the deceased could not be found. As per this witness, PW-11, Shri Manjit, did not disclose the names of the persons who quarreled and gave beatings to him. At about 06:00 .
a.m. the relatives of the deceased searched the deceased and thereafter in between 08:30-09:00 a.m. police came on the spot.
PW-1, Shri Sansar Chand, send him with the police to Sujanpur and around 12:00 noon he came to know that body of the deceased was recovered from a nallah. When he returned on the spot he found the dead body of the deceased lying in the nallah with head downward side. In his presence, police took into possession the motorcycle of the deceased, vide memo Ex. PW-1/B, and the bike was handed over to PW-1, Shri Sansar Chand. This witness, in his cross-
examination, denied that PW-11, Shri Manjit, told him that the accused persons stopped the motorcycle of the deceased. He has further deposed that PW-11 parked the motorcycle in front of his house, as 2-3 motorcyclists were chasing him and due to fear he did not go to the house of PW-1, Shri Sansar Chand. He did not see any injury or blood oozing out from the person of PW-11, Shri Manjit.
24. PW-17, MHC Ravi Kumar, PW-18, HHC Amarjit Singh and PW-19, Shri Anil Kumar, Patwari, are official witnesses with regard to spot.
25. PW-20, Shri Tek Chand, Assistant Director, Biology and ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 28 Serology, Regional Forensic Laboratory, deposed that on 06.02.2014 he visited the spot alongwith Shri Sanjeev Kumar, Scientific Officer (Physics and Ballistics) and Shri Vinay Kumar, Laboratory Assistant, .
Chemistry and Toxicology, for forensic examination of the spot. This witness, in his testimony, has given exhaustive and minute details of his spot inspection and consequent result thereof. This witness, in his coss-examination, has deposed that from spot 3 towards spot 2 initially the movement of object is horizontal in the cliff of the hill and then vertical down to spot 2. As per this witness, the distance from spot 3 to spot 2 cannot be ascertained because the gradient was very steep. He did not notice any scuffle marks on spot 1.
Likewise, no disturbance of soil and grass was observed from road edge to a distance of 1½ feet in horizontal distance towards hill gradient.
26. PW-21, ASI Sartaj Singh, is formal witness. This witness just got developed the photographs and he gave the same to PW-22, ASI Ashok Kumar. He has also got prepared the video CD from the video camera of the police, which he handed over to ASI Ashok Kumar.
27. PW-22, ASI Ashok Kumar, is Investigating Officer. This witness, in his examination-in-chief, tried to support the prosecution case and there is not much variance and discrepancies in his ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 29 examination-in-chief. Therefore, his examination-in-chief has not been discussed, as the same is in consonance with the prosecution story, however, his cross-examination needs to be examined on the .
touchstone of credibility. He, in his cross-examination, has deposed that PW-1, Shri Sansar Chand, in his statement recorded under Section 154 Cr.P.C. divulged the name of accused Vikas and other accused persons. He further deposed that Shri Sansar Chand stated in his statement that alongwith accused Vikas there were three-four more boys and he did not disclose their names. As per this witness, PW-1 told him that accused persons killed the deceased and threw his body into the nallah and on his asking PW-1 said that PW-11, Shri Manjit, disclosed this to him. Conversly, PW-11, Shri Manjit, did not disclose this fact to police in his statement recorded under Section 161 Cr.P.C., which is Ex. PW-22/P. He has further deposed that on the day of occurrence PW-13, Shri Rahul and PW-11 had scuffle with Vikas in marriage at place Palbhu. As per this witness, the deceased had run towards Kakkar side from the first place of occurrence on road at Palbhu and his body was found in nallah, which is about 200 meters away from first place of occurrence.
28. After exhaustively discussing the evidence, which has come on record, now the same needs to be analyzed on the parameters of its truthfulness and credibility. On 04.02.2014 the ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 30 deceased and Shri Manjit attended a marriage and on 05.02.2014 at about 01:30 p.m. dead body of the deceased was found in a nallah.
In the intervening night of 04/05.02.2014 the villagers kept on .
searching the deceased, but he could not be found. The edifice of the prosecution story rests on the disclosure statement, so made by accused Vikas, who is one of the accused, and on the statement of PW-11, Shri Manjit (injured) who allegedly was with the deceased.
PW-6, Shri Julfi Ram and PW-7, Shri Kuldeep Singh, are the witnesses of recovery of danda, i.e., weapon of offence.
29. No identification parade was conducted by the police in the case in hand. PW-11, Shri Manjit, nowhere deposed that during the night of occurrence he alongwith PW-1, Shri Sansar Chand, PW-
2, Shri Sunil Kumar, PW-12, Shri Ajit Singh and PW-16, Shri Vijay Pal, revisited the spot and returned after noticing 10-12 boys on the road, near Hanuman Temple, identified them as accused persons.
PW-2 categorically deposed that during their visit to the spot, when they were going ahead of the spot for turning their vehicle, about 300 meters away, 8-10 boys were standing on the road and PW-1 stopped the vehicle, but a boy kept on standing in mid of the road.
As per this witness, accused Vikas was there and in the morning he came to know about the name of his father. This witness, in his cross-examination, has deposed that prior to the incident he was not ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 31 acquainted with accused Vikas and other accused persons and their names were disclosed to him by the police. PW-11, Shri Manjit, visited the spot alongwith them on the second occasion, when he .
was telephoned by PW-1, Shri Sansar Chand. It demonstrates that PW-11 was not with them during the first visit. PW-1 clearly deposed that the boys also met him during his first visit, but he has not stated that during his second visit the boys, who met him, were same. So, noticing of the accused persons on the scene of occurrence, during mid night, becomes highly improbable and it, by no stretch of imagination, is trustworthy. PW-2, Shri Sunil Kumar, stated differently to his previous statement given to the police. As per this witness, during his visit to the spot accused Vikas along with his 4-5 friends met them, whereas on oath he has deposed that 8-10 boys met them. The statements of PW-1 and PW-2 do not corroborate each other. As per PW-2, boys were standing on the road, so PW-1 has to stop his vehicle, whereas PW-1 deposed that the boys tried to stop them. Thus, apparently there are visible discrepancies in the statements of PW-1 and PW-2.
30. The prosecution case is largely based on circumstantial evidence and law qua circumstantial evidence has been time and again discussed by the Hon'ble Supreme Court and by this Hon'ble High Court as well. This Hon'ble High Court in State of H.P. vs. ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 32 Sunil Kumar, Criminal Appeal No. 326 of 2011, decided on 15.06.2017, 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 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 33 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 Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173)."
31. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:r "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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 34 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.
... ... ... ... ... ...
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 r 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:::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 35
(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.
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 r 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 36 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."
32. The Hon'ble Supreme Court in Padala Veera Reddy vs. 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 r 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 37 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 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 r 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 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."::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 38
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 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 r 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 39 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 40 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.
Under 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 r 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.
In our view, they are not.
... ... ... ... ... ...
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."
::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 4133. 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 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 r 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 42 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 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 r 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 43 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.
16. 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 r 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 44 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 45 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 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 ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 46 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 charges for which the appellants therein had been convicted."
34. This Hon'ble High Court in Rajdev alias Raju & another vs. State of H.P., Criminal Appeal No. 288 of 2015, decided on 30.05.2 016, 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 r 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 get the benefit of doubt."
35. PW-12, Shri Ajit Singh, in his cross-examination has also deposed that 8-10 boys met them on the spot and they were standing on either side of the road. As per this witness, they had no talk with them. As per PW-2, Shri Sunil Kumar, they asked one of the boys to get aside from the road and allow them to proceed further, whereas PW-12 clearly deposed that boys were standing on either side of the road. PW-1, deposed that the said boys met them at a distance of 100-150 yards, but as per PW-2 the distance was ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 47 300 meters, however, PW-12 deposed that distance was one kilo meter. Therefore, there is variance qua the distance also. PW-1 specifically deposed that PW-11 was with them and he identified the .
accused persons, whereas as per PW-2 and PW-12, he was with them only during second visit and PW-11 has deposed nothing in this regard. Thus, identification of the accused persons during the night by PW-11 becomes highly doubtful.
36. As per the deposition of PW-16, Shri Vijay Pal, on 4/5.02.204, at about 11:30 p.m., PW-1, PW-2 and PW-12 came to his house and on their asking he accompanied them to the spot.
They searched the deceased and did not find him. PW-16 did not state anything qua finding of the accused persons during first or second visit. He has further deposed that PW-11 did not disclose the names of accused persons, who picked up quarrel with him. This witness, even in his cross-examination, denied the presence of the accused persons on the spot during their visit. He deposed that neither anyone met them nor their vehicle was stopped. As per PW-
16, PW-11 had consumed alcohol and he did not disclose that he was beaten up by the accused persons. PW-16 also did not notice any injury or blood oozing out from the person of PW-11. The testimony of PW-16 clearly creates doubt about the presence of the accused persons on the spot of occurrence and it weakens the story ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 48 of the prosecution.
37. From the above, it is manifestly clear that the presence of the accused persons on the scene of crime is highly doubtful. Thus, .
the involvement of the accused persons in the alleged offence seems to be manufactured circumstance. PW-2 and PW-12 specifically deposed that during their first visit to the spot, PW-11 was not with them, however, as per PW-1, PW-11 accompanied them when they visited the spot. Therefore, as per the depositions of PWs 2 and 12, PW-11 was not with them, so there is no occasion for PW-11 to identify the accused persons during his visit to the spot. The variance in the statements of PWs 2, 11 and 12 renders the prosecution story doubtful and it gives strength to the probability that the prosecution story is concocted one.
38. The statement of PW-1, Shri Sansar Chand, father of the deceased, shows that accused Vikas and 4-5 boys had a quarrel with the deceased and PW-11, Shri Manjit. This is the only suspicious circumstance on the basis of which all the accused persons were apprehended by the police. When PW-11, Shri Manjit, was examined, he has given the details of the accused persons. PW-16, Shri Vijay Pal, has also named the accused persons with names of their fathers and villages. He deposed that the names of the accused persons were disclosed to him by PW-11, Shri Manjit. Similarly, PW-
::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 492, Shri Sunil Kumar, in his statement given to the police has given names of the accused persons and he has deposed that he came to know about the accused persons who were involved in the incident.
.
PW-1, Shri Sansar Chand, in his statement recorded by the police under Section 154 Cr.P.C., divulged the names of the accused persons alongwith the names of their fathers and villages. PW-1, in his cross-examination, deposed that PW-11, Shri Manjit, during the night of occurrence, did not disclose the names of the accused persons, who he knew. PW-1 disclosed the names of 2-3 accused persons in the morning and remaining names were disclosed by him when the police reached the spot. The inference is that PW-11, Shri Manjit, who knew the names of the accused persons, was last seen with the accused persons. He has further deposed that he hid himself in the bushes after running from the spot. He has seen the motorcycle of the deceased going from the spot and immediately coming back. He has not witnessed the incident and only is a witness to the circumstances, which have come on record. The statement of PW-1 is hear say. Now we have to revert to the statement of PW-11, Shri Manjit. He, in his statement has stated that accused Raman was also present in the house of President, during their presence. As per this witness, during the night accused Vikas was also called to the house of village President. In the ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 50 morning he alongwith accused Vikas and two more accused persons, out of which one was Shammi, were taken by police to Police Station, Sujanpur. As per this witness, accused Vikas disclosed the names of .
other accused persons. However, the version of PW-22, Investigating Officer, is contrary. He has denied that accused Vikas or any of the accused was on the spot when they visited there and they were taken to police station in the same fashion as portrayed by PW-2. PW-22, categorically deposed that accused Vikas was arrested on 06.02.2014 and Shammi on 07.02.2014. He has nowhere deposed that accused Vikas divulged the names of other accused persons.
Similarly, none of the prosecution witnesses has stated that accused Vikas divulged the names of other accused persons on 05.02.2014.
The testimonies of the above witnesses do not inspire confidence. As discussed above, the investigating agency did not conduct identification parade. If it could have been conducted, the same could have provided lateral support to the identification of the accused persons by the witnesses in the Court.
39. As per the prosecution story, on the day of occurrence the deceased alongwith PW-11 went to Palbhu on his motorcycle to bring aadhar card of his elder brother, Sanjay Kumar. This aspect of the prosecution story has been supported by PW-1 (complainant).
As per the statement of PW-5, Shri Krishan Chand, the deceased ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 51 inquired about the aadhar card from him. The statement of PW-11, does not tally with the statements of PW-1 and PW-5, who has deposed that he and the deceased on 04.02.2014 went to village .
Bajrol/Palbhu for attending marriage of his relative Naveen. PW-11 neither deposed qua the purpose of visit of the deceased to the village, nor he inquired from PW-5. PW-5, in his cross-examination, has deposed that none of the family members of PW-1 had applied to him for issuance of aadhar card. PW-1 categorically deposed that the deceased had gone to Palbhu for bringing aadhar card of his elder brother. It is very hard to believe that the deceased had gone to Palbu for bringing aadhar card of his brother, especially when no aadhar card had been applied by any of the family member of the deceased and also in the wake of testimony of PW-11, Shri Manjit, as he has specifically deposed that he alongwith the deceased visited place Bajrol to attend the marriage of his relative. Thus, in view of major flaws and contradictions in the statements of key prosecution witnesses, the story of the prosecution becomes highly improbable.
40. As per the recovery memo, Ex. PW-1/B, while producing the motorcycle PW-16, Shri Vijay Pal, stated that he brought it from place of occurrence to his house and parked it there, however, during the course of investigation a different story has come. PW-11, Shri Manjit, in his statement, Ex. PW-22/P, stated that he was ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 52 asked by PW-16 to drive the motorcycle and park the same in front of the shop of PW-16, whereas PW-16 in his statement, Ex. PW-
22/Q, stated that he had asked PW-11 to take the motorcycle to his .
house, but he parked the same in front of his shop. As per the statement of PW-2, Shri Sunil Kumar, Ex. PW-22/V, it has come that PW-16 disclosed to him that he drove the motorcycle to his shop/house. In view of variance in the statements of the above prosecution witnesses, the story of the prosecution qua motorcycle remains opaque and the same gives birth to suspicion qua that aspect of the story. PW-11, Shri Manjit, deposed in the Court that when he was going on the motorcycle to the house of PW-1, he was being chased by three motorcyclists, so he parked the motorcycle in front of the shop of Shri Vijay Pal (PW-16). Thus, his statement, made on oath, is in contrast to the statement of the above prosecution witnesses. So, it can be said that the statements of the prosecution witnesses contradictory. PW-1, PW-2 etc. did not notice motorcycle parked outside the house of PW-16. PW-16, Shri Vijay Pal, in front of whose shop the motorcycle was parked, did not say anything to PW-1 qua the parking of motorcycle. Thus, the circumstances, as portrayed by the prosecution do not find any lateral support from the prosecution witnesses and this renders the prosecution story doubtful.
::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 5341. Again, as per the statement of PW-11, Shri Manjit Singh, when he was hiding in the bushes, the boys from the bridge were asking him to come out, otherwise they would through the .
motorcycle in the nallah. This statement of PW-11 also does not co-
relate with the prosecution case. The police have not collected the call details of PW-1, PW-11 and PW-16 which could have been very vital piece of evidence. This Court finds that though the prosecution should have collected the call details of the above prosecution witnesses, but in the absence of any material against the accused persons, the accused persons cannot be held guilty when other circumstantial evidence is not convincing.
42. PW-6, Shri Julfi Ram, who is a witness of recovery, which was made consequent to the disclosure statement made by accused Vikas, deposed that a stick was lying at a distance of 10 yards from the road and the place of recovery was approximately two meters down from the road. Conversely, PW-7, Shri Kuldeep Singh, deposed that a stick was got recovered from Kapatti nallah at a distance of 50 meters from the road. Thus, the distance, as stated by both the above recovery witnesses is different. As per the version of PW-22, ASI Ashok Kumar, Investigating Officer, a stick was recovered from a place towards Hanuman temple side of the road.
He has further deposed that Kapatti nallah and Hanuman temple are ::: Downloaded on - 17/11/2017 23:10:07 :::HCHP 54 on opposite sides of the road. Now, as per site plan, Ex. PW-22/L, PW-22 has depicted the place of recovery of stick towards Hanuman temple side, which belies the statement of PW-7 or it gives rise to the .
presumption that in the prosecution story the circumstances have been created deliberately. The investigating agency should have videographed the recovery proceedings, but the same was not done.
PW-6 and PW-7, who are witnesses to the recovery of the stick, in their statements have nowhere deposed that accused Vikas in their presence stated that he had thrown or hide stick, Ex. P19, at the place of recovery, so alleged. Therefore, the recovery of stick, Ex. P-
19, from the alleged place of recovery also becomes doubtful.
43. PW-1, Shri Sansar Chand, specifically stated that PW-11 on the night of occurrence met him and showed him injury on backside of his neck and the blood was oozing out from it. On the other hand, PW-2, Shri Sunil Kumar, in his cross-examination deposed that PW-11 did not disclose him or anyone qua his injury.
PW-12, Shri Ajit Singh, deposed that PW-11 was having injury on his right side, but no blood was oozing out from it and PW-16 did not see any injury or blood oozing from the person of PW-11. As per the prosecution case, PW-16 met PW-11 prior to other witnesses, but he did not notice any such injury on his person. Thus, the prosecution case also fails when tested on the anvil of presence of injury on the ::: Downloaded on - 17/11/2017 23:10:08 :::HCHP 55 person of the PW-11, Shri Manjit Singh, as there are divergent statements of the prosecution witnesses.
44. As per report of chemical examination, Ex. PX, 130.15 .
mg% of alcohol was present in the blood of the deceased, but as per PW-11, Shri Manjit, in the marriage they had only consumed one beer each. As per the statement of PW-15, Dr. Rakesh Dhiman, for the quantity of alcohol, as given in the report, Ex. PX, one has to consume beer in large quantity. The quantity of alcohol, as found in the blood of the deceased, clearly demonstrates that the deceased and PW-11 had consumed more bottles of beer and not one bottle each. Therefore, the version of PW-11 qua consumption of one bottle of beer each is belied by chemical examination report, Ex. PX.
Indeed, PW-22 should have investigated that what were the reasons which resulted in happening of the alleged incident, but he failed in his investigation. PW-22, also did not investigate that on the day of occurrence PW-11 and the deceased had taken beer or liquor. As per the statement of PW-11 recorded by the police under Section 161 Cr.P.C. he alongwith the deceased only took beer in the marriage.
Now, after considering the statement of PW-11 coupled with the report of the chemical examiner, Ex. PX, the story of the prosecution gets untrustworthy and full of lacunae.
45. As per the version of PW-5, Shri Krishan Chand, on ::: Downloaded on - 17/11/2017 23:10:08 :::HCHP 56 4.2.2014, at about 8.30 p.m., he met the deceased in the marriage and the deceased was not drunk at that time, whereas as per the testimony of PW-16, PW-11 consumed alcohol with him in the night.
.
Thus, the statement of PW-16 clearly shows that PW-11 had taken liquor with him prior to the occurrence. As per the prosecution case, PW-11 and the deceased were intercepted by the accused persons at about 8.30 p.m. when they were returning from the marriage, but as per the testimony of PW-5, at about 8.30 p.m., the deceased met him and he was not drunk. PW-11 specifically deposed that immediately after they left the marriage, the incident took place. Thus, if the statements of PW-5 and PW-11 are read together, then it gives birth to a doubt that within a very narrow gap of time how could the deceased and PW-11 have consumed the liquor, as demonstrated in the chemical report, Ext. PX, qua the deceased. The above variance in the statements of PWs-5 and 11 also renders the prosecution story untrustworthy and if we believe the statement of PW-5 as correct, then the statement of PW-11 is untrue. On the other hand, if the statement of PW-11 is relied upon, then there are serious ambiguities in the statement of PW-5. In all cases, PW-22, ASI Ashok Kumar, Investigating Officer, through his investigation, could have unearthed the actual and correct circumstances but he did not do so.
::: Downloaded on - 17/11/2017 23:10:08 :::HCHP 5746. The Forensic report, Ex. PW-20/A, demonstrates that there was no disturbance towards the hill gradient side. The accused persons took the defence that the deceased consumed .
alcohol and on the spot of occurrence, he, while urinating, may have fallen down on his losing the control. The defence of the accused persons draws support from the statement of PW-15, Dr. Rajinder Singh, who has stated that urinary bladder of the deceased was found empty. This witness has also not ruled out the possibility that the deceased prior to his death would have urinated in view of the quantity of liquor found in his blood. The testimony of PW-15 viz-a-
viz the defence taken by the accused persons seems highly probable and it overshadows the evidence, which has come on record.
47. 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 ::: Downloaded on - 17/11/2017 23:10:08 :::HCHP 58 required to clearly and unambiguously prove the guilt of the accused persons, rather it gives birth to so many probabilities. Therefore, the prosecution has failed to prove the guilt of the accused persons .
beyond the shadow of reasonable doubt. Hence, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the appeal, which sans merits, deserves dismissal and is accordingly dismissed.
48. 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 17th November, 2017 (virender) ::: Downloaded on - 17/11/2017 23:10:08 :::HCHP