Himachal Pradesh High Court
Prem Bahadur vs State Of Himachal Pradesh on 11 July, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.631 of 2017 a/w Cr. Appeal No.414 of 2017 Reserved on: 01.07.2019 .
Decided on: 11.07.2019.
Cr. Appeal No.631 of 2017:
Prem Bahadur ..........Appellant.
Versus State of Himachal Pradesh ........Respondent.
Cr. Appeal No.414 of 2017:
Dalip Punmagar ..........Appellant.
Versus State of Himachal Pradesh ........Respondent.
__________________________________________________________ Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 For the appellant(s) : Mr. Balwant Singh Thakur, Advocate.
For the respondent(s) : Mr. Narinder Guleria, Additional Advocate General.
____________________________________________________________ Jyotsna Rewal Dua, Judge.
Appellants-accused Prem Bahadur and Dalip Punmagar (hereinafter referred to as "accused persons"), have preferred this appeal against the judgment dated 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 2
21.01.2017, passed by learned Additional Sessions Judge (CBI), Shimla, Camp at Theog, in Sessions Trial No.22-T/7 of 2013, titled State of Himachal Pradesh versus Prem .
Bahadur & Another, whereby both the accused persons were convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, alongwith fine of Rs.50,000/- each. In default of payment of fine, both the accused persons are to further undergo simple imprisonment for one year, in addition to the life imprisonment.
2. Prosecution Case:
The prosecution case, in a nut shell, is as under:-
2(i) On 27.02.2013, one Shri Paras Ram, alongwith Harka Bahadur (both Nepalies), purchased a few daily needs articles from the shop of one Kundan Singh (PW-5), at Village Prem Nagar, Tehsil & Police Station, Kotkhai, District Shimla, at about 05.00 p.m. After purchasing the articles, both of them went towards Chander Nagar. The appellants/accused persons Prem Bahadur & Dalip ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 3 Punmagar and one Kesar Bahadur (Khisar), came to the shop of Kundan Singh (PW-5). They also purchased a few daily needs articles and went towards Chander Nagar.
.
2(ii). On 28.02.2013, at around 08.45 a.m., dead body of deceased Paras Ram was recovered lying on the road leading to Village Bhojnagar, near Chander Nagar.
2(iii). On the statement of the complainant Shri Jawahar Lal (PW-1), recorded under Section 154 Cr.P.C.
(under whom deceased Paras Ram used to work), FIR No.10/2013, dated 28.02.2013, under Sections 302 and 323 IPC read with Section 34 IPC, was registered at Police Station, Kotkhai, District Shimla, H.P. Shri Harka Bahadur, the companion of deceased Paras Ram, was also involved during investigation. His statement recorded on 04.03.2013 under Section 161 Cr.P.C., is to the effect that all five Nepalies ( Prem Bahadur, Dalip Punmagar (both the accused persons), he himself (Harka Bahadur), Kesar Bahadur (Khisar) and deceased Paras Ram) in the late hours of 27.02.2013, were consuming liquor near Bhojnagar when a fight ensued amongst them all. They all fought with kicks and fist blows. Accused were beating him ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 4 and deceased Paras Ram. Shri Khisar immediately went away. He (Sh. Harka Bahadur) fell down and because of alleged severe injuries, caused by accused persons, could .
regain senses only after around two hours. He reached out for Paras Ram (deceased). Finding no response, he presumed that Paras Ram had left for his home.
Whereafter, he also left. He further stated that next day, police informed him about death of Paras Ram. He held Paras Ram.
r to accused persons responsible for the alleged murder of
3. Both the accused were charged with commission of crime punishable under Section 302 read with Section 34 of the Indian Penal Code for committing murder of deceased Paras Ram (Nepali) as well as with the offence punishable under Section 323 read with Section 34 of the Indian Penal Code for causing injuries to Harka Bahadur. Both the accused persons pleaded not guilty and claimed trial.
4. For establishing its case, the prosecution examined 24 witnesses. The statements of both accused persons under Section 313 of Code of Criminal Procedure ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 5 was recorded, to which they pleaded not guilty and claimed trial. No defence was led by the accused persons.
5. We have heard learned counsel for the .
appellants-accused persons as well as learned Additional Advocate General and minutely gone through the entire case record.
6. For holding the accused persons guilty of offence punishable under Section 302 of the Indian Penal Code, learned Trial Court based its decision primarily on:
(i) Last seen theory.
(ii) Circumstantial evidence.
(iii) Disclosure statements.
7. We are of the considered view that in the instant case the evidence has not been correctly and properly appreciated by learned Trial Court, which has eventually resulted in the conviction of present appellants-
accused persons. There is no definite evidence available on record, on touch stone of which, the appellants-accused persons can be convicted for the offence of committing heinous crime punishable under Section 302 of the Indian Penal Code. We give our reasoning hereinafter:-
::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 6Last Seen Theory:
7(i). Witnesses: There are three main witnesses to this theory in the instant case, namely, PW-5 Sh. Kudan .
Singh, PW-2 Sh. Kesar and PW-6 Sh. Gian Pratap Singh.
7(ii). PW-5 Sh. Kundan Singh, is a shopkeeper at Village Prem Nagar. In his examination-in-chief, he states that:-
"On 27.02.2013, Prem Bahadur and Dalip Kumar purchased tofees from my shop and Harka Bahadur, Kesar Bahadur and Paras Ram purchased pulses, mustard oil, vegetables and tomato from my shop. After purchasing the articles they left from my shop."
In his cross-examination, he states that:-
"Both the accused came to my shop at about 5.00 P.M. The accused had left the shop at about 5.45 P.M. The Kesar Bahadur, Paras Ram (deceased) came to my shop after the accused persons. All the persons went from the shop at one time about 5:45 P.M."
Thus, Sh. Kundan Singh (PW-5), stated that both the accused visited his shop at about 05.00 p.m and left at about 05.45 p.m. He further stated that deceased ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 7 Paras Ram and Kesar Bahadur came to his shop after the accused persons and that all persons went from his shop simultaneously at about 05.45 p.m. .
7(iii). Whereas PW-6 Sh. Gian Pratap Singh, an agriculturist residing nearby the shop of Kundan Singh (PW-5), in his cross-examination, states that:-
"First of all Paras Ram (deceased) and one another gorkha had left the shop and after one hour the accused persons had also left the shop.The deceased and another gorkha left the shop at about 05.45 and the accused persons left the shop at about 6:45 P.M."
This version of Sh. Gian Pratap Singh (PW-6) is to the effect that the deceased was not with accused persons but with one another Gorkha and that deceased Paras Ram, along with this another Gorkha, left the shop at about 05.45 p.m. According to him, accused persons left the shop at about 06.45 p.m. Thus, as per his statement, there is a gap of one hour in leaving the shop amongst deceased and the accused persons. This is at variance with statement of PW-5.::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 8
7(iv). PW-2 Sh. Kesar, states that:-
"About 2 years back I alongwith Prem and Dalip had gone to Guma. When we were returning from Guma then reached at .
place Prem Nagar, deceased Paras Ram and Harka Bahadur met us. Then we all the five persons consumed liquor at Prem Nagar by sitting in the rain shelter. Thereafter deceased Paras Ram slapped me then I went to my residence in the house of Mast Ram. Thereafter what happened I do not know."
8. Observations:-
8(i). None of the above three witnesses supported last seen theory put forward by the prosecution. There are major contradictions in the statements of these three witnesses as well. Sh. Kundun Singh (PW-5), states that all five Nepalis had left his shop simultaneously at around 05.45 p.m., whereas Sh. Gian Pratap Singh (PW-6) states that initially deceased Paras Ram left the shop with one another Gorkha, who as per the investigation later turned out to be Harka Bahadur; and further that it was an hour later that both the accused persons along with Sh. Kesar ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 9 Singh, visited the shop of Sh. Kundan Singh (PW-5) and thereafter, left the same.
8(ii) Sh. Kesar Singh (PW-2) further testifies that .
all the five persons met at Prem Nagar and consumed liquor while sitting in a rain shelter. He further states that he was slapped by deceased Paras Ram whereafter he immediately left the place and went to his room in the house of Mast Ram. He feigns his ignorance about subsequent events.
8(iii). to Learned counsel for the appellants-accused, relying upon (2006) 10 SCC 172, titled Ramreddy Rajesh Khanna Reddy versus State of A.P., contends that last seen theory, in the present case, is not applicable because the accused persons were allegedly last seen with deceased Paras Ram at around 05.45 p.m. and the dead body of deceased was recovered on the following day at around 08.45 a.m. This time gap is not small to rule out the possibility of any person other than the accused being author of the alleged crime. Moreso, in the present case, when the star-witness Sh. Harka Bahadur, has not been examined.
::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 108(iv) We are inclined to accept the contentions of learned counsel for the appellants-accused. Even otherwise, the circumstance of last seen together, on its .
own in absence of any other evidence, cannot by itself form the basis of holding the accused guilty of the offence.
8(v)(a). In 2017 (16) SCC 353, titled Ganpat Singh versus State of Madhya Pradesh, Hon'ble Apex Court after noticing various earlier judgements, reiterated the position that last-seen theory comes into play where time gap between point of time when accused and deceased were last seen alive and when deceased is found dead is so small that possibility of any person other than accused being guilty of crime becomes impossible. Relevant Para of the judgment is reproduced below:-
"10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 11 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 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 accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
8(v)(b). Similar is the ratio in 2017(14) SCC 359, case titled Anjan Kumar Sarma and others versus State of Assam. Relevant para of the judgment is reproduced as under:-
"19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, this Court held that:
(SCC p.719, paras 12 & 15).
"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.
::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 1215. 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."
8(v)(c). In 2015(4) SCC 393, titled Ashok versus State of Maharashtra, it was held as under:-
"12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 13 between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt.
.
13. Here another judgment in Harivandan Babubhai Patel v. State of Gujarat, would be relevant. In this case, this Court found that the time- gap between the death of the deceased and the time when he was last seen with the accused may also be relevant."
8(vi). Applying the ratio of law laid down to the instant case, it is noticeable that none of the witnesses supports last seen theory, on the basis of which accused can be conclusively held guilty of offence of murder. The time gap, between last seeing of accused by Sh. Kundan Singh (PW-5), at 05.45 p.m. on 27.02.2013 and recovery of dead body of deceased Paras Ram at about 08.45 a.m. on 28.02.2013, cannot by any stretch be called as small.
Moreso, when accused persons were not with deceased Paras Ram at 05.45 p.m. and they as per statements of PW-2 Sh. Kesar & PW-6 Sh. Gian Pratap Singh, met him much later. Thus, last seen theory is not applicable to the facts of the present case.
::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 149. Withholding of material witness:-
9(i). The star witness Harka Bahadur, who was involved by the police during investigation, in his .
statement recorded under Section 161 Cr.P.C, stated that:-
(a) he was with deceased Paras Ram while purchasing daily needs articles from the shop of Sh. Kundan Singh (PW-5); (b) it was he who accompanied deceased Paras Ram to Chander Nagar; (c) it was he who was consuming liquor with the deceased when they met both the accused persons and Sh. Kesar Singh; (d) further that a fight took place amongst them all; (e) during which Sh. Kesar Singh left the place; and (f) further that the accused had killed Paras Ram and caused injuries to him (Harka Bahadur);
was not examined by the prosecution in the trial.
9(ii). Hon'ble Apex Court has held that non-examination of the material witness will cause major dent in prosecution case. Reference can be made to 2017(11) SCC 129, case titled Vijendra Singh versus State of Uttar Pradesh, Relevant Para of the judgment is reproduced as under:-
::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 15"36.In Takhaji Hiraji v. Thakore Kubersing Chamansing, it has been held that: (SCC p.155, para19) "19. ....if a material witness, who would unfold the genesis of the incident or an .
essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material... If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."
9(ii)(b). Similar is the ratio in 2014(11) SCC 335, case titled Joginder Singh versus State of Haryana.
Relevant Para of the judgment is reproduced as under:-
"37. At this juncture, we may note with profit another aspect that has been highlighted by the learned counsel for the respondent. The prosecution has not ::: Downloaded on - 29/09/2019 00:40:58 :::HCHP 16 examined Chander, husband of the deceased, a relevant eyewitness, Bala, Murti and Bimla, three other injured witnesses. No explanation has been given by the prosecution. Though there have been certain suggestions to PW 16 in the .
cross-examination, but his answer is evasive. It is well settled in law that non- examination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution.
(See State of H.P. v. Gian Chand.)"
In the present case which is based on circumstantial evidence and the last seen theory, Harka Bahadur was the only key link. He is the one who perhaps could prove last seen theory/link circumstantial evidence as well as complete the chain. His evidence becomes important as no other evidence worth credence to indict the accused of murder, is available on record. Since, Harka Bahadur, the star witness has not been examined, it will adversely affect prosecution case.
10. Disclosure Statements:-
::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 17Witnesses:
10(i). Apart from the last seen theory, discussed above, the prosecution case also rests upon the disclosure .
statements of both the accused persons, Ext. PW-4/A and Ext. PW-4/B, in respect of blood stained clothes, shoes and the place of occurrence. The witnesses involved in respect of disclosure statements, recorded under Section 27 of the Evidence Act, are:- SI OM Krishan (PW-20), Constable Pradeep Kumar (PW-14) and Sh. Jagdish Chauhan (PW-4).
10(ii). Constable Pradeep Kumar (PW-14), in his examination-in-chief, states that:-
"The statement of accused Prem Bahadur is Ext. PW-14/A and the statement of accused Dalip Pungmar is Ext. PW-14/B, which was signed by me, Om Prakash and Jagdish as attesting witnesses."
In his cross-examination, he states that:-
"Witness Jagdish Chauhan was present in the spot and not in the police station. I cannot say how many statements of the accused were recorded by the I.O. in my presence. I had signed on two memos. The accused persons had given their statement on ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 18 the spot to the I.O. The statements were recorded outside their houses. I had not taken the photographs when the cloths were recovered from the accused. Many persons .
were present when the statement of the accused was recorded by the I.O.".
10(iii). PW-20 Sub Inspector Om Krishan, in his cross-examination, states that:-
"The first disclosure statement of accused was regarding cloths and shoes. First disclosure statement was given by accused Prem Bahadur. I do not remember the time interval when the statement of other accused Dalip was recorded. The disclosure statement of accused Prem Bahadur was recorded at about 10.30 to 11.30 A.M. When the statement was recorded I alongiwth SHO, C. Pradeep and Jagdish. Jagdish was present prior to me. I cannot say who was the first signatory to the statement recorded under Section 27 of Evidence Act. It is incorrect that I was not present at the time of disclosure statement. The statement under Section 27 of Evidence Act was recorded in the SHO room."::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 19
10(iv). PW-4 Sh. Jagdish Chauhan, in his cross-
examination, states that:-
"I reached at the police station at about .
11-12 A.M. (Noon). The statement was recorded by the ASI but I do not know his name. Two other police officials were also present at there. ASI was interrogating the accused. I do not remember the rank of other police officials. The accused were in the office of ASI."
Observations:
10(v). A conjoint reading of the statements of above three witnesses, culls out material contradictions. PW-4 Sh. Jagdish Chauhan, has stated that the disclosure statements were recorded on the spot and not in the Police Station and there were many persons present at the time of recording the disclosure statements of the appellants-accused persons. PW-20 Sub Inspector Om Krishan, has stated that the disclosure statements were recorded in the room of SHO at around 10.30 a.m. to
11.30 a.m. He further says that the accused were in the office of ASI and the statements were recorded there and ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 20 not on the spot. He also says that he reached the Police Station at about 11-12 a.m. Place and time of recording of statements of the witnesses, are all coming out differently .
in different statements. The disclosure statements have not been proved in accordance with law. Even otherwise, what is recovered on the basis of so called disclosure statements, recorded on 02.03.2013, are the blood stained cloths. It is the case of prosecution that fight took blood on the cloths.
r to place. There can be other explanation for presence of Non-explanation of reasons by accused cannot lead to just one inference that accused committed murder of deceased Paras Ram and make them guilty of offence punishable under Section 302 IPC.
10(vi)(a). In Anjan Kumar Sarma and others' case (supra), [(2017) 14 SCC 359)], Hon'ble Apex Court, in para 21, has held as under:-
21. This Court in Bharat v. State of M.P. held that the failure of the accused to offer any explanation in his statement under Section 313 Cr.PC alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 21 the presumption of guilt of the accused stood unrebutted and thus the appellants were liable to be convicted."
10(vi)(b). In (2005) 11 SCC 600, titled State .
(NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru and connected matters, Hon'ble Apex Court, in para 119 as under:-
"119. We have noticed above that the confessions made to a police officer and a confession made by any person while he or she is in police custody cannot be proved against that person accused of an offence. Of course, a confession made in the immediate presence of a Magistrate can be proved against him. So also Section 162 Cr.P.C. bars the reception of any statements made to a police officer in the course of an investigation as evidence against the accused person at any enquiry or trial except to the extent that such statements can be made use of by the accused to contradict the witnesses. Such confessions are excluded for the reason that there is a grave risk of their statements being involuntary and false. Section 27, which unusually starts with a proviso, lifts the ban against the admissibility of the confession/statement made to the police to a limited extent by allowing proof of information of a specified nature furnished by the accused in police custody. In that sense Section 27 is considered to be an exception to the rules embodied in Sections 25 and 26 (vide Udai Bhan v.::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 22
State of U.P.). Section 27 reads as follows:
"27. How much of information received from accused may be proved. -Provided that, when any fact is deposed to as .
discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
11. Circumstantial Evidence:
11(i). The present is a case of the circumstantial evidence. There is no direct evidence of the alleged crime. The circumstances from which the guilt of the accused is to be established, has to be proved beyond reasonable doubt. The chain of circumstances has to be established and it should be linked directly and definitely to the accused persons. A very conscious approach has to be adopted while appreciating the circumstantial evidence.
11(ii)(a). In Anjan Kumar Sarma & Others' case (supra), [(2017) 14 SCC 359, Hon'ble Apex Court has held in Paras 14 & 16, as under:-::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 23
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
.
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(See Sharad Birdhichand Sarda v. State of Maharashtra, SCC p. 185, para 153; M.G. Agaral v. State of Maharashtra, AIR SC para 18.).
16. It is no more res integra that suspicion cannot take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of "may be true, and the same divides conjectures from sure conclusions. (See Jaharlal Das v. State of Orissa, SCC p.37, para 11.)"
::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 2411(ii)(b). In (2016) 1 SCC 550, titled Nizam and another versus State of Rajasthan, Hon'ble Apex .
Court, in Para-8 of the judgment, held as under:-
"8. The case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
11(ii)(c). In (2018) 16 SCC 161, titled Navaneethakrishnan versus State by Inspector of Police, Hon'ble Apex Court, in Paras 18 & 28 of the judgment, held as under:-
"18. In the present case, there is no witness of the occurrence and it is only based on circumstantial evidence. Before moving further, it would be apposite to refer the law regarding reliability of circumstantial evidence to acquit or convict an accused. The law regarding circumstantial evidence was aptly dealt with by this Court in Padala Veera Reddy ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 25 v. State of A.P. wherein this Court has observed as under: (SCC pp. 710-11, para
10).
"10. ... (1) The circumstances from which an inference or guilt is sought to be .
drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
28. In view of the foregoing discussion, we are of the considered opinion that both the courts below have erred in relying that part of the statement which can be termed as confession which were given to the police officer while they were in custody and it will be hit by Section 26 of the Evidence Act, 1872 and only that part of the statement which led to the discovery of various materials would be permissible. Hence, in the absence of any other material evidence against the appellant-accused, they cannot be convicted solely on the basis of evidence of last seen together with the deceased."
::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 2611(iii). In the present case, Sh. Harka Bahadur, as has been observed hereinabove, the star witness has not been examined by the prosecution though he was .
the only person who could have thrown light. Non-
examination of Sh. Harka Bahadur will materially affect the case of the prosecution. The so called circumstantial evidence available on record is not sufficient to link the accused with the alleged offence.
11(iv).
Motive: As has been seen from the record, in the instant case, there was not even any motive for the accused persons for committing the alleged crime. PW-23 Inspector Gauri Dutt Sharma, in his cross-examination, has stated that:-
"As per my investigation accused and deceased met for the first time on the day of occurrence near Prem Nagar but I cannot tell the exact place and location where they met for the first time. It is correct that there was no enmity of the accused person with the deceased."
11(iv)(a). In (2018) 7 SCC 536, titled Kumar versus State Represented by Inspector of ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 27 Police, Hon'ble Apex Court, in Paras 33 & 34, has held as under:-
"33. Coming to the other aspect of the .
case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in the case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the eyewitnesses that there was scuffle. In such a factual situation, certainly motive may act as a double-
edged sword.
34. In the light of the settled law thus by this Court and also from what is clear form the evidence, there is absence of extreme cruelty, even if it is assumed that the accused hit the deceased with the log. Had there been a strong motive to do away with the life of the deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilising more dangerous ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 28 weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the backdrop of quarrel that took place during drama at the village festival, prior to the date of occurrence. Inasmuch as .
the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, the prosecution has to face the peril of failure in establishing that foundation."
11 (v). As per statement of Dr. Piyush Kapila (PW-
13), antemortem r manual strangulation marks visible on neck of deceased, were sufficient in ordinary course to cause death. He also found post mortem artifacts, probable result of nibbing by rodents.
11(v)(a). In (2018) 4 SCC 329, titled Lavghanbhai Devjibhai Vasava vs. State of Gujarat, Criminal Appeal No. 253 of 2018, decided on 10.01.2018, Hon'ble Apex Court in Para-7 of the judgment laid down the parameters which are to be considered while deciding the question as to whether the case falls under Sections 302 and 304 of the Indian Penal Code. The said Para is reproduced herinbelow:-
::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 29"7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
.
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body.
(e) The amount of the force used;
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation;
(I) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner."
11(v)(b). In the present case, there are no circumstances available from which it can be inferred that the accused had intention to commit murder of deceased Paras Ram. There was no recovery of any weapon. There is no statement that any vital part of ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 30 the body was assaulted. Also, there is no evidence in respect of any previous enmity. Further, there is no evidence of any sudden provocation or that the attack .
was in the heat of passion or that the accused allegedly inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
Even, if the statements of the witnesses are to be believed, what at best comes out, is that it was not a case of single person or accused persons beating one person. It could have been a case of free fight amongst five drunk persons, all of them scuffled; who inflicted injury upon whom; and who gave the fatal below, are not forthcoming. The chain of circumstantial evidence is neither reliable nor complete. Under these circumstances, the conviction on such sort of evidence cannot be sustained. The evidence for convicting a person under Section 302 of the Indian Penal Code has to be beyond reasonable doubt. There has to be a irresistible and definite conclusion that the accused persons are the real culprits. In the present case, we are of the opinion ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 31 that this concrete evidence is lacking. The circumstantial evidence is not worth inspiring, the chain is not complete. It cannot be called as definitive .
to indict the appellants-accused persons with the charge under Section 302 of the Indian Penal Code.
Merely on hypothesis, the accused persons cannot be held guilty. There is no positive proof from the available evidence that it was only and only the accused persons who did it.
12. In view of the above discussions and observations, we find that the prosecution has failed to established its case against the accused persons.
Consequently, the appeals filed by the appellants-
convicts, the Nepali Nations, are allowed and they are acquitted of the commission of offence punishable under Section 302 IPC. Resultantly, appellants-
convicts, who are presently serving out the sentence, be released forthwith, if not required in any other case, subject to their furnishing personal bond in the sum of Rs.50,000- (each) with one surety in the like amount (each) to the satisfaction of learned trial ::: Downloaded on - 29/09/2019 00:40:59 :::HCHP 32 Court, so that in the event of any appeal against this judgment is preferred, their presence in the appellate Court be secured. The bonds so furnished shall, .
however, remain in force only for a period of six months. Release warrants be prepared accordingly.
The appeals are finally disposed of, so also the pending miscellaneous application(s), if any.
(Dharam Chand Chaudhary)
r Judge
(Jyotsna Rewal Dua)
July 11, 2019 Judge
(yashwant)
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