Himachal Pradesh High Court
Om Parkash vs State Of H.P on 4 January, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 474 of 2016 Judgments reserved on: 28.12.2017 .
Date of decision: 4th January, 2018
Om Parkash ...Appellant
Versus
State of H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting? No. For the Appellant: Mr. Anoop Chitkara, Advocate. For the Respondent: Mr. V.S. Chauhan, Addl. A.G. with Mr. J.S. Guleria, Asstt. A.G. Justice Tarlok Singh Chauhan, Judge.
The appellant has been convicted and sentenced for the offence punishable under Sections 324, 326, 302 Indian Penal Code (for short' Code') and aggrieved thereby has preferred the instant appeal.
2. The prosecution story in brief is that on the evening of 19.07.2013 at around 10:30 p.m., complainant (PW-1) Yagya Chand came to house of his uncle Thakur Dass in village Gadshaun and at that time Thakur Dass disclosed to Yagya Chand that his grandson i.e. appellant was not under his control as he was not looking after the affairs of the family, ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 2 therefore, he had decided to give his property to his daughter Smt. Bhadari Devi unless the accused mended his behaviour. Upon hearing this, the appellant got furious and attacked his .
grandfather Thakur Dass but Thakur Dass gave 2-3 slaps to the appellant. At that time, the appellant's grandmother Smt. Dindu Devi, his wife Smt. Krishna and mother Smt. Gami Devi were present in the room and it was in their presence the appellant had threatened Thakur Dass that in case the grandfather but the property was not given to him, he would eliminate him. The appellant picked a sickle from the room in order to attack his appellant was intercepted by the complainant and in this process appellant gave sickle blow to the complainant, as a consequence thereof, his left thump got amputated. The accused thereafter gave another blow with the sickle on the left arm and abdomen of the complainant and in order to save himself, the complainant left the room and even the other family members of the accused started fleeing from the spot and followed the complainant. The complainant contacted ambulance 108 through telephone but the staff of the ambulance refused to come on the spot on the ground that the matter first be reported to the police, but the same was not reported by the complainant as it was a family matter. On the next morning, the complainant was informed by Nokh Singh about the murder of Thakur Dass and immediately he ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 3 reached the room of his uncle Thakur Dass whom he found to be lying dead on the floor of the room and noticed the blood that was oozing from his person. The appellant was also found .
lying on the bed in his room. The complainant thereafter informed about the incident to the neighbours and number of people gathered on the spot including Ward Panch Smt. Varsha Devi, who informed her Jeth (brother-in-law) PW-13 Nirat Raj and requested him to inform the police regarding the incident. On receiving telephonic call from Devi Singh, Smt. Kanta Rana (PW-6), Pradhan of Gram Panchayat, Bahu also rushed to the spot and found dead body of Thakur Dass lying in the room and also noticed the stains of blood on his clothes. On receiving telephonic call rapat Ex.PW11/A was recorded in police station, Banjar and a police party headed by PW-11 ASI Narender Kumar consisting of PSI Vikas, Head Constable Jamal Deen and HHC Diwan Chand. The Investigating Officer after completing all the procedural formalities of investigation, presented the challan before the Court of learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, however, since the offence of Section 302 was exclusively triable by the Court of Sessions, the same was committed to the Court of learned Sessions Judge, Kullu for trial under Section 209 Cr.P.C. Eventually, charge came to be framed against the appellant under Sections 302, 326 and 324 IPC.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 4
3. In order to prove its case, the prosecution examined, in all, 14 witnesses and closed its evidence.
4. The appellant was examined under Section 313 .
Cr.P.C. in which he denied all incriminating evidence led by prosecution against him and pleaded innocence and contended that he had been falsely implicated.
5. Arguments under Section 232 Cr.P.C. were heard and the appellant was given opportunity to lead defence
6.
r to evidence and he accordingly examined two witnesses in his defence.
The learned trial Court after recording evidence and evaluating the same convicted the appellant to undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further imprisonment for a period of one month under Section 324 IPC. The appellant was also sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2000/- and in default of payment of fine to undergo further imprisonment for a period of one month under Section 326 IPC. The appellant was further sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further imprisonment for three months for the offence under Section 302 IPC.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 5
7. Aggrieved by the aforesaid judgment of conviction and sentence, the appellant has filed the instant appeal on the ground that the findings recorded by the learned Court below .
are totally perverse in as much as it has failed to take into consideration the improbability of the allegations set out against the appellant and that apart the findings so recorded otherwise based on surmises and conjectures and cannot, therefore, withstand judicial scrutiny.
8. On the other hand Mr. J.S. Guleria, learned Asstt. A.G. would contend that the findings recorded by the learned trial Court deserve to be upheld as the same are based on correct appreciation of the facts, evidence and law.
We have heard learned counsel for the parties and have gone through the records of the case.
9. The "last seen together" theory is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the court to shift the burden of proof to the accused and to all a reasonable explanation as to the cause of the death of the deceased. It is well settled that it is not prudent to base the conviction solely on "last seen theory"
which should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 6 circumstances that preceded and follow the point of being so last seen.
10. 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 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.::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 7
11. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the .
conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
12. 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).
13. Factors to be taken into account in adjudication of cases of circumstantial evidence have been laid down by the Hon'ble Supreme Court as under:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) The circumstances concerned "must" or "should" and "not" may be established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 8 say, this should not be explainable on any other hypothesis except with the accused guilt;
(iii) The circumstances should be of conclusive .
nature and tendency;
(iv) They should exclude every possible hypothesis, except they want to be proved;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the reasons consisting that the innocence of the accused and must so that in all humane probability the act must have been done by the accused. (See: Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, M.G. Agarwal vs. State of Maharashtra (1963) SCC
200).
14. In Brij Lala Pd. Sinha vs. State of Bihar, 1998 (5) SCC 699, the Hon'ble Supreme Court held as under:-
"9.In a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and lastly, the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The circumstances proved should lead to no other inference except that of the guilt of the accused, so that the accused can be ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 9 convicted of the offences charged. Before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been .
established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused."
15. In Bodh Raj @ Bodha & others vs. State of J&K 2002 (8) SCC 45, the Hon'ble Supreme Court has observed under:
"31.The last-seen theory comes into play where the time-
gp between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence 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, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."
16. Elaborating on the principle of last seen together, the Hon'ble Supreme Court in State of Rajasthan vs. Kanshi Ram, 2006 (12) SCC 254, held as under:
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 10 laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and .
when he parted company. He must furnish an explanation which appears to the court to be probably and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself proves an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his, innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., AIR 1960 Nad 2018 : 1960 Cri LJ 620."
17. The legal position pertaining to appreciation of circumstantial evidence of last seen has been succinctly summarized by a Division Bench of the Hon'ble Delhi High Court in case titled Arvind @ Chottu vs. State ILR (2009) Supp. (Delhi) 704 in the following words:
(i) Last seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last seen theory has to be applied.::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 11
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last seen, if of a kind, where a rational mind is persuaded to reach an .
irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last seen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last seen theory.
(vii) The relationship of the accused and the deceased, the place where they were seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last seen theory.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 12
18. The circumstances of last seen together cannot by itself form the basis of holding accused guilty of the offence. In kanhaiya Lal vs. State of Rajasthan (2014) 4 SCC 715, .
the Hon'ble Supreme Court held as under:
"12.The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588."
19. The legal position on the subject has been elucidated in a recent judgment of the Hon'ble Supreme Court in Pawan Kumar @ Monu Mittal vs. State of Uttar Pradesh and Ant, 2015 (7) SCC 148, wherein it was observed as under:-
"36. In case where the direct evidence is scarce, the burden of proving the case of the prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases. Before analyzing the factual aspects it may be stated that for a crime to be proved it is not necessary ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 13 that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved .
by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consist of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed (see Bodhraj v. State of J&K). In the case on hand, the evidence adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence.
The entire evidence brought on record by the prosecution, is not only convincing, but is also trustworthy. Even if the confession of Accused 4 and 7 made before PW 1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken into account, the other evidence on record adduced by the prosecution, is sufficient to hold the accused guilty of the offence.
37. This court has been consistently taking the view that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the present, on scrutiny of evidence on record, we are convinced that the prosecution had established beyond reasonable doubt the complete chain of events which points at the guilt of the accused."
20. It is vehemently argued by Shri Anoop Chitkara, learned counsel for the appellant that in case the entire ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 14 evidence and circumstances are taken into consideration, then it is amply proved on record that the appellant has no connection with the said offence and the same rather points a .
finger against the complainant Yagya Chand. He would argue that the conduct of PW-1 Yagya Chand is highly unnatural and puts him under scanner.
21. That apart, the version put-forth by Yagya Chand that at the time when he visited the house of the deceased, he noticed that the appellant was sleeping in his room is highly unnatural because a person after murdering his grandfather cannot be expected to be sleeping in the room. That apart, Yagya Chand had claimed that his thumb has been amputated. Whereas PW-6 Kanta Rani had stated that there was blood in the varandha and the sickle was also stained with blood. As such, it was incumbent upon the prosecution to trace the evidence on which the blood of PW1 Yagya Chand was present. More importantly, when there is no explanation that when initially sickle was blood stained, then where had those blood stains vanished by the time it reached the FSL for its examination. It was only scientific evidence that could have led to exonerate PW-1 Yagya Chand and thereafter fasten liability on the appellant by comparing the finger prints on the sickle, which happens to the weapon of offence in the instant case. There is no explanation that despite amputation of ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 15 thumb, PW-1 did not seek medical aid until 3:00 p.m. of the next day i.e. roughly after 15-16 hours of the incident.
22. It is further vehemently argued by learned counsel .
for the appellant that even the blood stained clothes did not connect the appellant with the offence as there is no evidence led by the prosecution that these were the very clothes that were worn by the accused on the relevant date or that clothes, in fact, fit on him. The mere presence of blood on the clothes could not be taken to be an incriminating evidence against the appellant because on seeing the dead body of his grandfather it would quite natural for the grandson to hug him.
23. Lastly, it is argued by learned counsel for the appellant that an adverse inference ought to be drawn against the prosecution for not examining the material witnesses i.e grand mother, mother and wife of the appellant, who as per the prosecution case, were present at the time of the incident and having failed to examine, the appellant deserves to be acquitted.
24. In order to appreciate the aforesaid contentions, we would proceed to examine the testimonies of each of the material witnesses that have been examined on record.
25. PW-1 Yagya Chand is the complainant and deposed that on 19.07.2013 at around 10:30 p.m. his uncle disclosed that the appellant was not under his control as he had not ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 16 been looking after the affairs of the family and unless he (appellant) mends his behaviour, he will give his property to his daughter Bhadari Devi and not the appellant. On hearing .
these words, the appellant got furious and told his grandfather why he was not giving his property to him and even tried to attack him but the deceased gave 2-3 slaps to the appellant. On this appellant picked up sickle from the room in order to attack his grandfather but PW-1 intercepted and in this process appellant had given him sickle blow on his thumb, which got amputated. The appellant thereafter gave another blow on his left arm and abdomen and in order to save himself, he left the room. At that time, mother of the appellant Gami Devi, wife Krishna Devi and grandmother Dindu Devi were also present. As he started fleeing from the spot, the aforesaid family members also started fleeing behind him. He contacted ambulance 108 through telephone but the officials of the ambulance refused to come on the spot on the ground that the matter be firstly reported to the police. Thereafter, he did not report the matter to the police because it was a family matter. On next morning, he was informed by Nokh Ram about the murder of the Thakur Dass and he immediately rushed to the room of his uncle Thakur Dass, where he found his uncle lying dead on the floor of the room and also noticed blood oozing out from his person and he also found appellant lying ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 17 on the bed of his room. Thereafter, he informed about the incident to the neighbours and number of persons gathered on the spot including Ward Panch Varsha Devi. The police was .
also informed about the incident and thereafter the police came on the spot and recorded his statement Ext.PW1/A, which was duly signed by him encircled in red. The police lifted the blood samples from the spot with the piece of cloth and put the same in a polythene and thereafter put in a cloth parcel and sealed the same after taking into possession vide seizure memo Ex.PW-1/B, which was duly signed by him encircled in red. The police had also taken sickle in a sealed parcel, which was also identified by him and seized through seizure memo Ex.PW-1/C, which was duly signed by him encircled in red. Police took blood stained towel and put the same in cloth parcel which was duly sealed and taken into possession vide memo Ex.PW-1/D which was duly signed by this witness. The witness thereafter identified parcel Ex.P-1, carry bag Ex.P-2, sickle Ex.P-3, another sealed parcel Ex.P-4, polythene envelope Ex.P-5, blood stained clothes Ex.P-6, towel Ex.P-7, another parcel Ex.P-8, containing polythene envelope Ex.P-9 and dry blood Ex.P-10. He further proved sketch of sickle Ex.PW-1/E. He was also medically examined vide MLC Ex.PW-1/J. ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 18
26. In cross-examination, this witness stated that he could not remember whether he had disclosed to the police about the incident of slapping. He further stated that at the .
time when the appellant had attacked him with sickle he was in the room of his uncle Thakur Dass but the appellant had not attacked the deceased in his presence. He stated that neither of them had consumed alcohol at the relevant time. He specifically stated that Thakur Dass had two storyed house and he used to sleep in the front room, whereas the appellant and the family members used to sleep in the separate room. He stated that some of the drops of the blood had also fallen in the room and part of his thumb that was amputated was also in the room. However, the severed part of the thumb was not found later on. He further deposed that Banjar hospital was at a walking distance of half an hour. He stated that his land was joint with the Thakur Dass but their houses were separate. He specifically denied that his father had not given landed property to him at village Gadshaun and that is why he was pressing Thakur Dass to give land of his share to him in village Gadshaun. He denied that he was having a dispute with Thakur Dass. He stated that the room where the dead body was lying was not locked from the inside. He claimed that there was blood on the sickle at the relevant time. He denied the suggestion that there had been scuffle between him and ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 19 Thakur Dass, as a result whereof he had sustained injuries on his left thumb. He specifically stated that he had informed Chuni Lal that the appellant had assaulted him. He denied the .
suggestion that the appellant had not attacked Thakur Dass with the sickle and it was in order to save himself that he planted a false case against the appellant by making false statement before the police.
27. PW-2 Dr. Kiran Thakur, had conducted the medical the basis r of the examination of PW-1 Yagya Chand at 3:00 p.m. on 20.07.2013 on request letter Ex.PW-1/A. examination, the following injuries were found on his person:-
During
i) Left thumb amputated;
ii) Lacerated wound 2 cm above left elbow joint on later aspect size 1 cm length, ½ cm breadth and ½ cm depth.
Iii) Abrasion 4-5 cm on abdomen.
28. In cross-examination, this witness admitted that the injuries no. (i) to (iii) could be caused in general scuffle. He further stated that he had not preserved blood of the injured for sample purpose. He further stated that he did not remember if the severed part of the thumb was shown to him at the time of examination.
29. PW3 HHC Ramesh Chand testified on oath that on 08.09.2013 Patwari Keshav Ram, Patwar Circle Shikari had ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 20 handed over a copy of Aks Shajra Mark-A of village Gadshaun and copy of Jamabandi for the year 2007-08 Ex.PW-3/B, which were taken into possession vide memo Ex.PW-3/A. .
30. PW-4 Sub Inspector Chint Ram prepared challan of the case and presented the same before the Court.
31. PW-5 Keshav Ram, Patwari prepared the Tatima Ex.PW-5/A and also issued copy of jamabandi Ex.PW3/B and handed over the same to the police which was taken into
32.
r to possession vide memo Ex.PW3/A, which was duly signed by this witness encircled in red.
PW-6 Kanta Rana in her testimony deposed that on 20.07.2013, she received telephonic call from Devi Singh resident of village Gadshaun informing her that appellant had committed murder of his grandfather Thakur Dass. She then rushed to the spot where the other villagers had also gathered and found Thakur Dass lying dead in his room and noticed blood stains on the clothes worn by him. She also noticed blood in varandha. At that time even the appellant was there. She further deposed that police had clicked photographs and conducted videography of the spot and taking into possession the blood stained clothes in a parcel which was sealed with seal. She further deposed that when the police asked the appellant about the murder of Thakur Dass, the appellant had disclosed that at the time of murder he had worn some ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 21 other clothes and after that he had changed the clothes and the clothes earlier worn by him had been kept in a room. The appellant had thereafter taken the police to the said room and .
got recovered the clothes which were shirt and nicker (short pant) and the same were taken into possession in a sealed parcel. She further deposed that accused had also got recovered the "Darati" (sickle) with which Thakur Dass had been murdered. She also deposed that Yagya Chand complainant had also sustained injuries on his thumb and had disclosed to her that he had been hit by the appellant. She identified parcel Ex.P-5 one polythene, Ex.P-6 blood smeared clothes and Ex.P-7 towel, which were taken into possession vide memo Ext.PW-1/D and was duly signed by her. She also identified parcel Ex.P-1, blue colour bag Ex.P-2 and Darati (sickle) Ex.P-3 , which were taken into possession vide memo Ex.PW-1/C which had duly been signed by her encircled in red and also bore the signatures of the appellant and another witness Varsha Devi. She further deposed that before effecting aforesaid recovery, the statement of appellant Ex.PW-6/B was recorded in her presence and in presence of another witness Varsha Devi and the same was duly signed by her and Varsha Devi. She stated that police had also lifted the blood from the room in a plastic envelope and thereafter sealed it in a cloth parcel and the same was taken into possession vide memo ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 22 Ex.PW-1/B, which was duly signed by her encircled in red. She identified parcel Ex.P-8, Plastic envelop Ex.P-9, dry blood Ex.P- 10, another parcel Ex.P-11, shirt Ex.P-12 and nicker Ex.P-13.
.
33. In cross-examination, this witness admitted that Thakur Dass had not been murdered by the appellant in her presence. She stated that she had received a telephonic message at around 6:00 a.m. and thereafter reached the spot around 7:00 a.m. and by that time the other villagers were already present at the spot. She stated that the mother of the appellant Gami Devi and complainant were present inside the room. The police came on the spot at around 7:05 or 7:10 a.m. and she did not know if the blood stains were there on the Darati (sickle) or not. She stated that when the clothes were got recovered by the appellant at that time she was standing in the varandha and did not enter inside the room. She denied that the accused had not made any disclosure statement Ext.PW-6/B and or that nothing had been recovered as shown in the recovery memo. She stated that building was consisting of three storey and dead body was lying in the first floor. She stated that the complainant had been residing at Thrimbala which was about 15-20 kms from Bahu. However, she feigned ignorance regarding the suggestion that the complainant Yagya Chand had quarrel with Thakur Dass over the landed property.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 23
34. PW 7 HC Sunil Kumar stated that on 20.07.2013 ASI Narender Kumar handed over the case property of FIR No. 58/2013 i.e. one parcel of cloth which was sealed with six seals .
of 'K' of which one sickle was stated to be kept along with sample of seal 'K'. One parcel of cloth which was also sealed with six seals of 'K, in which controlled blood sample and soil were stated to be kept in plastic envelope alongwith sample of the seal taken on a piece of cloth. One parcel of cloth, which was sealed with seal 'T' with sample seal 'T' in which blood smeared shirt was stated to be kept, three plastic jars sealed with seal of 'CH' stated to be containing viscera of deceased and one parcel sealed with four seals of 'CH' Banjar in which clothes of deceased were stated to be kept were deposited in the Malkhana and he made entry in register No. 19 at serial No. 83. He further deposed that on 24.07.2013 vide R.C. No. 75/2013 he sent the aforesaid case property through HHC Amar Chand No. 386 for depositing the same at RFSL, Mandi who on return handed over the receipt to him. He also proved copy of Malkhana register Ex.PW-7/A and copy of R.C. Ex.PW- 7/B.
35. PW-8 HHC Amar Chand testified on oath that on 24.07.2013 HC Sunil Kumar of Police Station Banjar vide R.C. No. 75/2013 dated 24.07.2013 had handed over to him one parcel of cloth sealed with six seals of seal 'T' in which one ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 24 sickle was stated to be kept, one parcel of cloth in which controlled blood and soil was stated to be kept sealed with six seals of 'K', another parcel sealed with six seals of 'K' in which .
blood smeared cloth and towel were stated to be kept alongwith sample seal 'K', one parcel sealed with seal 'T' in which blood smeared shirt was kept, three number of jars sealed with seal of 'CH', one parcel of cloth sealed with seal of 'CH', one docket, one envelope, copy of FIR, postmortem report, form 25-35 with the direction to deposit the same at RFSL, Mandi and he deposited the aforesaid case property on the same day and handed over the receipt to MHC.
36. PW-9 ASI Prabhu Ram testified on oath that on 20.07.2013 he was working as Station House Officer in Police Station Banjar and one statement under Section 154 Cr.P.C. Ex.PW-1/A of Yagya Chand scribed by ASI Narender Kumar was received in the Police Station through HHC Diwan Chand for registration of case in pursuance to which he registered FIR Ex.PW-9/A which bears his signature encircled in red and endorsement Ex.PW-9/B in red circle on statement Ex.PW-1/A is also in his hand and bears his signature. After registration of FIR, the case file was handed over by him to aforesaid HHC with the direction to take the same to the Investigator on the spot.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 25
37. PW-10 Smt. Varsha Devi stated that on the morning of 20.07.2013 she came to know from the villagers about the murder of Thakur Dass, which had been committed .
by the appellant in the night. She made telephonic call to her Jeth (brother-in-law) Nirat Raj and requested him to inform the police about the incident. She thereafter reached the house of the deceased Thakur Dass, where she found the Pradhan, Gram Panchayat, Bahu, Yagya Chand and other villagers. The police also came on the spot. She saw the dead body of the deceased lying on the spot and noticed blood in the room and police also lifted blood from the room. She further stated that the police had also interrogated the appellant and during such interrogation the appellant disclosed that he had kept the clothes i.e. one nicker and shirt inside the room regarding which the police recorded his statement Ex.PW-6/B, which was duly signed by this witness encircled in red. She further deposed that thereafter accused took the police to the room where he had kept the said nicker and shirt and both these items were found in the room and taken into possession by the police. She saw the shirt and found that its five buttons were broken and stains of blood on the nicker. The recovered clothes were put in a cloth parcel and sealed with six seals of 'T' and were taken into possession vide seizure memo Ex.PW- 6/A, which was duly signed by her encircled in red. The sample ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 26 of seal was taken on separate cloth vide Ex.PW10/A and the same was duly signed by her. She identified parcel containing shirt Ex.P-12 and nicker Ex.P-13. This witness stated that the .
house of the deceased Thakur Dass was 2 ½ storeyed having one room on the ground floor, one room at the first floor and kitchen on the top and except the aforesaid house, deceased was not having any other house in village. She stated that Thakur Dass was staying in the ground floor whereas in the first storey the wife of the deceased, appellant, his wife and mother were staying on the second floor. She did not know that the incident had taken place during night. She stated that she had not gone inside the room with the police. Self stated that she remained outside the room as the room was small. She further stated that Yagya Chand complainant had been residing in village Thrimbala. She feigned ignorance to the suggestion that Yagya Chand was insisting upon the deceased to give him land in the village. She further stated that she had seen the sickle which was blood stained.
38. PW-11 ASI Narender Kumar, Investigating Officer, deposed that on 20.07.2013 Nirat Raj came to the Police Station and informed him that he had received telephonic call from Gadshaun that Thakur Dass had been murdered in the village regarding which rapat Ex.PW-11/A was recorded. He deposed that he associated PSI Vikas, HC Jamal Deen No. 31, HHC ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 27 Diwan Chand No. 288 and reached at village Gadshaun where found number of persons gathered on the spot in front of the house of deceased. He found dead body of Thakur Dass in one .
of the rooms which was covered with blanket and the blood was spread in the room. When he inquired about the incident from Yagya Chand (PW-1), he informed about the occurrence and accordingly recorded the statement of Yagya Chand under Section 154 Cr.P.C. Ex.PW-1/A and sent the same to the Police Station through HHC Diwan Chand for registration of FIR. In the meanwhile, he clicked photographs of the dead body Ex.PW- 11/B-1 to Ex.PW-11/B-12. He also took into possession dead body of the deceased by filling Form-25:35 (B) Ex.PW-11/C and thereafter moved application Ex.PW-11/D to Medical Officer Civil Hospital, Banjar for conducting postmortem of the deceased. One blood stained towel was taken into possession from the room where the dead body of the deceased was lying vide Ex.PW-1/B by putting the same in a polythene packet, which in turn was then put in a cloth parcel and sealed with six seals of 'K'. He identified parcel Ex.P-4, polythene packet Ex.P- 5, blood smeared cloth Ex.P-6 and towel Ex.P-7. He further deposed that the blood lying in the room was preserved by him from different places. He lifted the blood from the spot and put the same inside polythene, which in turn was put in a cloth parcel and sealed with six seals of 'K' and taken into ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 28 possession vide Ex.PW1/B. He also identified parcel Ex.P-8, small plastic envelope Ex.P-9 and dry blood Ex.P-10. He further deposed that in the room he found one sickle lying therein and .
sketch whereof was drawn vide Ex.PW-1/E and thereafter the same was put in a carry bag and sealed in a cloth parcel with six seals of seal 'K'. He deposed that sickle was shown to complainant Yagya Chand and he identified the same. He also proved the samples of seal taken on pieces cloth Ex.PW-1/F, Ex.PW-1/G and Ex.PW-1/H and the same after use was handed over to Pradhan Kanta Rana and the sickle was seized through memo Ex.PW-1/C. He identified parcel Ex.P-1, carry bag Ex.P-2 and sickle Ex.P-3. He prepared spot map Ex.PW-11/E and recorded the statement of witnesses on the spot. He stated that at that time the appellant was also present in the same house and after interrogation was arrested. Thereafter, he recorded disclosure statement of appellant under Section 27 of Indian Evidence Act Ex.PW-6/B wherein he disclosed that he had changed the clothes worn by him at the time of occurrence and he could get recovered the same . Thereafter, the appellant led the police to a small room in the ground floor and got recovered one T-shirt and nicker which were put inside cloth parcel and sealed with six seals of seal 'T'. Impression of seal was taken on separate piece of cloth Ex.PW-10/A and the parcel was seized through memo Ex.PW-6/A. On inspection of ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 29 the shirt, six buttons were found broken and at that time the blood stains were there on the nicker as also the shirt. He also identified parcel Ex.P-11, shirt Ex.P-12 and nicker Ex.-13. He .
prepared spot map of the place where the recovery of the nicker and shirt was effected vide Ex.PW-11/F. He stated that at that time thumb of Yagya Chand was found to be amputated. He thereafter moved an application Ex. PW-2/A to the Medical Officer, Civil Hospital, Banjar for medical examination of Yagya Chand and procured MLR Ex.PW-1/J. He thereafter recorded the statements of witnesses under Section 161 Cr.P.C. as per the versions given by the respective witnesses. He also procured postmortem report of the deceased Ex.PW-11/G. The parcels were deposited with MHC on 20.07.2013 while memo vide which the appellant came to be arrested was proved on record Ex.PW-11/H. The CD of the spot and statements of witnesses were proved as Ex.PW-11/J. Thereafter, the reports from RFSL, Mandi were also procured, which were Ex.PW-11/K and Ex.PW-11/L. He recorded the statement of Nirat Raj Ex.PW-11/M as per his version. He thereafter handed over the case file to the Station House Officer.
39. In cross-examination, this witness stated that disclosure statement of the appellant was recorded after his arrest. He further stated that at the time when the appellant ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 30 produced the clothes from the room only, he was present there while other witnesses were present outside room in the varandha. He admitted that he had not taken the finger prints .
from the handle of the sickle but stated that the sickle was blood stained and the same was sealed in the same condition. He further stated that amputated thumb of Yagya Chand was not found on the spot. There was no blood stain on the cloth of Yagya Chand at that time. Blood sample of Yagya Chand was
40.
r to not sent for comparison. He further denied that there was dispute between Yagya Chand and deceased Thakur Dass.
PW-12 ASI Gandhi Ram, Investigator had deposed that on 07.09.2013, he moved an application Ex.PW-12/A to Naib-Tehsildar, Banjar, pursuant to which he obtained spot map (Tatima) Ex.PW-5/A which was taken into possession alongwith copy of Jamabandi Ex.PW-3/B through seizure memo Ex.PW-3/A in the presence of witnesses. He also claimed to have recorded the statements of witnesses and thereafter presented the case file of this case to the Station House Officer for preparing a challan.
41. PW-13 Nirat Raj had deposed that his Babhi Varsha Devi telephonically informed him about the murder of Thakur Dass that had taken place in village and thereafter he went to the Police Station at about 8:15 a.m. and reported the matter ::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 31 to the police. He reached village Gadshaun with police where police conducted the proceedings of the case.
42. In cross-examination, he stated that his Bhahbi .
had not disclosed the name of the appellant, however, she simply stated that the murder of Thakur Dass had taken place.
43. PW-14 Dr. Vishal Jamwal conducted the postmortem of the deceased Thakur Dass on 20.07.2013 and found the following injuries on his person:
r to
1. Multiple laceration found with sharp edged:
i) Near right axiliary region 6 cm x 6 cm with 6 cm deep wound;
ii) Laceration left upper thigh 6 cm x 1 cm;
iii) Laceration left middle thigh 5 cm x 2 cm;
iv) Laceration with deep wound with fracture left index finger 6 cm x 2 cm with 6 cm deep.
2. Muscle tear near right axiliary region; and
3. Muscle tear in left upper and middle thigh.
44. In cross-examination, this witness stated that weapon used for causing the injuries on the person of deceased was required to be used with force. He further stated that if a person holds sickle then there is every possibility that his finger prints will appear on the sickle.
45. As observed earlier, the appellant examined two witnesses in his defence.
::: Downloaded on - 05/01/2018 23:03:04 :::HCHP 32
46. DW-1 Smt. Dindu Devi is the grandmother of the appellant stated that before the death of her husband the complainant Yagya Chand had come to her house which was 2 .
½ storeyed having one room on the first floor, one in the second floor and one on the top floor. Thakur Dass was sleeping on the ground floor and at that time Yagya Chand was also sleeping in the said room. She further stated that on the previous evening both deceased and Yagya Chand had taken drinks in the ground floor. She further stated that while she was sleeping in the upper floor of the house at that time her grandson (appellant herein), his wife and his mother was also sleeping in the said floor. On the next morning, Yagya Chand came to their room and informed about the death of Thakur Dass and they, in turn, asked Yagya Chand to inform the police and he informed that he had reported the matter to the police. Yagya Chand had been asking for land and house which was refused by Thakur Dass. Lastly, she stated that the appellant had not given any blow on the thumb of Yagya Chand with any weapon.
47. In cross-examination this witness stated that Yagya Chand was the son of Ghinghalu. She stated that she had two children out of which one had died while her daughter was alive. The property of the deceased Thakur Dass had not been mutated in the name of any person till date and claimed that ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 33 same would be mutated only when the grandson (appellant) would come back to his house. She denied the suggestion that she was deposing falsely in order to save her grandson. She .
stated that on the date of occurrence Thakur Dass was sleeping in the ground floor and prior to that he was sleeping in the first floor. After marriage, the appellant used to sleep alongwith his wife in the middle floor of his house. She stated that Thakur Dass used to take drink and charas. She denied the suggestion that deceased had been telling the appellant to mend his behaviour otherwise he would give his property to his daughter. She stated that at the time when police came to the ground floor where the dead body of deceased Thakur Dass was lying, they all i.e. this witness, appellant and his wife were in the first floor of the house. At morning time around 4:00 a.m. Yagya Chand knocked the door of the room and informed them about the death of Thakur Dass. She stated that there was no injury mark on the person of Thakur Dass even when found dead inside the room of ground floor. She denied the suggestions that the appellant had also cut the thumb of Yagya Chand. She further stated that at the time when Yagya Chand informed about the death of Thakur Dass at about 4:00 a.m. she alongwith her daughter-in-law and wife of the appellant had come to the ground floor to see the dead body of Thakur Dass but the appellant did not come down. She ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 34 denied the suggestion that she was making a false statement in order to save her grandson. She stated that police had not recorded her statement. She denied the suggestion that when .
Thakur Dass refused to give property to the appellant he murdered him and caused grievous injuries to Yagya Chand when he came to rescue of the deceased Thakur Dass.
48. DW-2 Ghami Devi is the mother of the appellant and stated that one day before the death of Thakur Dass Yagya Chand had come to their house at around 8:00 p.m. and then both Yagya Chand and deceased had taken drinks in the ground floor of the house. Deceased Thakur Dass used to sleep in the ground floor of the house while she alongwith her son and his wife and her mother-in-law on the said night had been sleeping in the first floor. On the next morning, Yagya Chand came to their room and informed them regarding the death of Thakur Dass and when they asked for the cause of his death then he did not disclose any reason. Thereafter, she came to the ground floor and found deceased Thakur Dass and asked Yagya Chand to inform the police about the death and he accordingly informed the police. She further stated that Yagya Chand had not been beaten by any person nor anybody had cut the thumb of Yagya Chand in her presence. She further claimed that there was land dispute going on between Thakur ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 35 Dass and Yagya Chand and he i.e. Yagya Chand had been making persistent demand of land from them.
49. In cross-examination, this witness admitted that .
the appellant was her son. She further stated that property of the Thakur Dass had been inherited by her mother-in-law after his death. She also stated that Thakur Dass had left behind one daughter, namely, Bhadari. She admitted that Yagya Chand had not inherited any property of Thakur Dass. She stated that after marriage of her son, she alongwith her son, daughter-in-law and mother-in-law had been staying in one room as there was only one room in the first floor and besides that one room was on the ground floor and on the top floor where they had constructed a kitchen. Earlier her father-in-law and mother-in-law were living in one room but after that they started living separately. She volunteered to state that Thakur Dass used to drink whereas the Devta (Deity) was not allowing the same. She stated that police visited the spot around 9:00 a.m. and neither she nor her mother-in-law gave any statement to the police. She categorically admitted that Yagya Chand had cordial relations with deceased Thakur Dass and had been on visiting terms to the house. She admitted that even after the incident Yagya Chand had been coming to the house. She denied the suggestion that it was in order to save her son she had been deposing falsely. She further denied the ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 36 suggestion that Thakur Dass had been asking the appellant to mend his way otherwise he would be giving the property to his daughter. She further denied the suggestion that it was when .
Thakur Dass refused to give property to the appellant in the presence of Yagya Chand, that the appellant got infuriated and tried to attack the deceased with sickle and when Yagya Chand intervened, the appellant again became infuriated and gave blow on the thumb of Yagya Chand as a result whereof the thumb got amputated and thereafter the appellant had also caused other injuries to Yagya Chand and when Yagya Chand ran away from the spot on seeing the conduct of the appellant also ran away. She further claimed that the appellant did not come to the ground floor even when the police came inside the room though they all were near to the dead body at that time. She again stated that when the police came on the spot the appellant was inside the room. She further stated that there was no injury mark on the person of the deceased at the time they had found him dead inside the room. She denied the suggestion that she was deposing falsely in order to save the appellant who was her son. She stated that they had informed the police that appellant was sleeping in their room and asked why he was arrested. However, she categorically admitted that they had not reported the matter to any higher authorities of the police regarding arrest of the appellant in this case. ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 37
50. Having set out the evidence led by the parties in entirety, we would now examine the contention of the appellant.
.
51. Admittedly, this is a case of circumstantial evidence and most important circumstance that has admittedly come on record is that appellant was last seen in the company of the deceased on 19.07.2013 when the altercation took place. This fact is not only proved by the prosecution witnesses but even the defence witnesses have not denied the presence of the appellant on the relevant date and time. Thus, if a person is last seen with the deceased he must offer an explanation as to how and when he parted the company. He must furnish an explanation which appears to the Court to be both probable as well as satisfactory and if he does so, he must be held to have discharged his burden. However, if he fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden fixed upon him by virtue of Section 106 of the Indian Evidence Act. But then equally true is the fact that even PW1 Yagya Chand had last been seen in the company of the deceased, but we do not find any material on record whereby his role and conduct in the entire given circumstances can be eyed with suspicion.
52. Even before this Court, an attempt has though been made to rope Yagya Chand and point an eye of suspicion ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 38 upon him but we are really not inclined to accept the submissions for more than one reason.
53. Firstly, there is no FIR or any other complaint .
lodged against Yagya Chand by either DW-1 or DW-2 or even at the behest of the appellant herein.
54. Secondly, the defence witnesses examined in this case have categorically admitted that the investigation in this case had been carried out in their presence as also in the
55.
r to presence of Yagya Chand and in case Yagya Chand, in fact, was the accused, then why these witnesses kept mum.
Thirdly and more importantly, it has specifically come in the statement of DW-2 that after the aforesaid unfortunate incident Yagya Chand had still been visiting their house and shared a very cordial relationship. Therefore, there is no reason why Yagya Chand should be placed under the scanner.
56. The testimony of PW-1 clearly discloses and establishes, in detail, the consequences of events which infuriated the appellant to the extent that he had proceeded to attack his grandfather with sickle which attack was repelled by Yagya Chand, that too, at a price whereby not only part of his thumb came to be amputated but he also suffered other injuries as have been duly established by PW2 Dr. Kiran Thakur who after examining the complainant has specifically stated ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 39 that the injuries mentioned in the MLR Ex.PW-1/J was possible if a person hit with a sickle.
57. That apart, one of the stories invented to divert .
the attention towards the role of the complainant is that both the complainant as also the deceased Thakur Dass had consumed alcohol on that date which story has been found to be palpably wrong. PW-2 Dr. Kiran Thakur has categorically stated that PW1- had not consumed alcohol on that date.
58. That apart, perusal of RFSL report Ex.PW-11/K clearly shows that there is no alcohol/poison detected in the contents of parcels, i.e. glass jar stated to be containing stomach with its contents marked as P/1, glass jar stated to be containing preservative, marked as P/3 of deceased Thakur Dass. Therefore, the story of the defence is falsified as per FSL report Ex.PW-11/K.
59. At this stage, we need to clarify that we are not unmindful to the fact that the onus to establish the guilt of the appellant is on the prosecution and not on the appellant but we have enumerated these circumstances only because one of the arguments that was vehemently canvassed before this Court was that an adverse inference deserves to be drawn against the prosecution for not examining the grandmother, mother and wife of the appellant.
::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 40
60. As noticed above, the grandmother of the appellant appeared as DW-1 while his mother appeared as DW-2 in his defence which obviously speaks volume against .
the conduct whereby they have deposed in the Court only to save the appellant and, therefore, there was no question of associating them as these persons would have never supported the case of the prosecution.
61. We may also note that the defence has not placed on record any document whereby it would be established that there was any litigation between the deceased and the complainant as was stated by the defence witness (Dws).
62. We may also notice that the death of Thakur Dass as per medical evidence established on record proved to have been caused due to hemorrhagic shock with cardiogenic shock due to arterial bleeding. PW-14 Dr. Vishal Jamwal has specifically stated that the injuries mentioned in the postmortem report Ex.PW-11/G are possible with sickle.
63. Admittedly, the death of Thakur Dass is not in dispute but at this stage we may also note that the specific case of the defence was that even though Thakur Dass had died but there was no injury mark on his person, which clearly belies by the record. Another fact, which cannot be overlooked is that according to DWs, it was the complainant who on their asking had informed the police and even this fact is clearly ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 41 belied from the record, more particularly, the statement of PW- 10 Varsha Devi who, in turn, had sent a telephonic message to her Jeth (brother-in-law) Nirat Raj who reported the matter .
to the police.
64. Proceeding further, it would be noticed that it was pursuant to the disclosure statement made by the appellant that the blood stained clothes of the appellant had been recovered.
65. We find the arguments of the appellant fallacious that such stains would obviously be there when the appellant was none other than the grandson of the deceased, seeing her grandfather in the pool of blood would rush to hug him. If that was so, then obviously there was no reason for the appellant to have concealed these clothes. Needless to say that the recovery of the clothes have been clearly proved by PW-6 Kanta Rani and PW-10 Varsha Devi who have no axe to grind with the appellant. The FSL report Ex.PW-11/L clearly indicates that the human blood of group 'A' was detected in the shirt of Thakur Dass, towel, pieces of cloth and shirt of the appellant. Human blood was also detected in the slacks of Thakur Dass though no blood was detected on the sickle.
66. In such circumstances, it is for the appellant to explain how his clothes got stained with blood and he also has ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 42 to explain other incriminating circumstances that have appeared against him.
67. At this stage, it is vehemently argued by Shri .
Anoop Chitkara, Advocate that it will be highly unnatural for a person to keep on sleeping after murdering his grandfather. However, we are not impressed by such arguments as there cannot be two different sets of parameters to judge the conduct of a person. It has been established on record that the guilt of the appellant has been established beyond reasonable doubt and, therefore, if he could commit the murder of his grandfather which by no standard can be said to be natural, then the mere fact that he was found sleeping in another room at the relevant time does not appear to us unnatural much less highly unnatural as put-forth by the counsel for the appellant.
68. The mere fact that non-presence of blood stains on the sickle at the time of chemical analysis cannot be taken to a circumstance in itself would lead to inference that the appellant had been falsely implicated rather we find from the record that the statement of the complainant stands duly corroborated from other prosecution evidence on record and, therefore, the plea of false implication taken by the appellant does not stand proved and substantiated on record. There is nothing on record to suggest that the witness had any ::: Downloaded on - 05/01/2018 23:03:05 :::HCHP 43 animosity and enmity with the appellant, rather it would be noticed that PW-6 is none other than the Pradhan of the Gram Panchayat Bahu while PW-10 Varsha Devi is none other than .
the Ward Panch who as observed earlier had no axe to grind against the appellant. All the witnesses have truthfully deposed about the facts that was within their knowledge and there is no indication and there is nothing in the statements where from it can be gathered or even remotely suggest that these witnesses were tutored.
69. The learned Court below has given detailed judgment after appreciating the prosecution case, evaluating the statements of the witnesses examined by the prosecution as also by the defence and thereafter apply the law and convicting the appellant.
70. We ourselves have gone through the prosecution case, evaluating the statements threadbare and find no reason to differ with the conclusion so arrived at by the learned Court below.
71. Having said so, we find no merit in this appeal and the same is accordingly dismissed.
(Tarlok Singh Chauhan) Judge.
(Chander Bhusan Barowalia)
January 4, 2018 Judge.
Sanjeev
::: Downloaded on - 05/01/2018 23:03:05 :::HCHP