Himachal Pradesh High Court
Ravi Kumar vs State Of Himachal Pradesh on 13 September, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.187/2014 and Cr. Appeal No.190/2014 Date of decision : September 13, 2017 .
Criminal Appeal No.187/2014
Ravi Kumar ... Appellant
Versus
State of Himachal Pradesh ...Respondent
Criminal Appeal No.190/2014
Manish Lohat ... Appellant
Versus
State of Himachal Pradesh
r ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes. 1 For the Appellants : Mr. Ramesh Sharma, Advocate, as Legal Aid Counsel, for the appellant in Cr. Appeal No.187/2014 and Ms. Ruma Kaushik, Advocate, as Legal Aid Counsel for the appellant in Cr.
Appeal No.190/ 2014.
For the Respondent : Mr. V.S. Chauhan, Additional Advocate General, Mr. Vikram Thakur, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Acting Chief Justice Since both these appeals arise out of the very same impugned judgment, they are being disposed of as such.
Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP
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2. In relation to FIR No.37/2011 dated 11.4.2011 (Ex.PW12/B), registered at Police Station, East (Shimla), vide judgment dated 1.1.2014/6.1.2014, passed by .
Sessions Judge (Forests), Shimla, Himachal Pradesh, in Sessions Trial No.41-S/7 of 2013/12, titled as State of H.P. v. Ravi Kumar and another, appellants Ravi Kumar and Manish Lohat (hereinafter referred to as the accused), stand convicted for having committed offences punishable under the provisions of Sections 302, 201 read with Section 34 of the Indian Penal Code and sentenced as under:
Offence Sentence
Section 302 read Each of the accused to undergo
with Section 34 of imprisonment for life and pay fine of the Indian Penal`10,000/- each and in default thereof Copde to further undergo imprisonment for a period of three months each.
Section 201 read Each of the accused to undergo with Section 34 of imprisonment for a period of two years the Indian Penal and pay fine of `2000/- each and in Code default thereof to further undergo imprisonment for a period of three months each.
3. In relation to the very same FIR, another accused (identity concealed), a juvenile in conflict with law, stands acquitted by the Court having competent jurisdiction. Undisputedly, no appeal against the ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...3...
judgment of his acquittal, stands preferred by the State (Order dated 4.4.2016).
4. Hence, on the basis of the evidence led by the .
prosecution in relation to the present trial, this Court is called upon to return findings about correctness of the reasons furnished and conclusion arrived at by the trial Court.
5. It is not a case of direct evidence, but that of circumstantial evidence.
to It is a settled principle of law that the trial Court is necessarily required to cull out the circumstances, which we find not to have been so done. However, from the bare perusal of the judgment, we find the Court to have convicted the accused on the following circumstances:-
(a) Accused and the juvenile in conflict with law were lastly seen in the company of deceased (Chaman Lal). This was at about 100 p.m. on 10.4.2011, when a vehicle owned by Dilbar Singh (PW-13), driven by the deceased, was hired by the juvenile in conflict with law, in which, all of them were travelling.
(b) An altercation took place over fare which led to the accused and the juvenile in conflict with law, murdering the deceased.
(c) The accused had purchased a dog chain from the shop of Ramesh Kumar (PW-::: Downloaded on - 14/09/2017 12:36:21 :::HCHP
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18), which was also used as a weapon of offence to strangulate the deceased.
(d) In the morning of 11.4.2011, dead body of the deceased, tied with a dog chain, .
was noticed by Dalbir Singh (PW-14) and Vinod Sharma (PW-15) at a place known as Pujarli, District Shimla.
(e) After committing the act, accused stole the mobile phone of deceased Chaman Lal and sold it to one Pradeep Panchal (PW-22) at Karnal (Haryana) for a sum of `500/-. Police learnt about such fact, only after the said phone was kept on surveillance.
(f) In police custody, accused Manish Lohat made a disclosure statement (Ex.PW- r 19/A), in the presence of Shankar Singh (PW-19) and Chander Shekhar (not examined) which led to the identification of the spot and recovery of keys of the car, from which the dead body was recovered.
(g) Fingerprints present on the incriminating material, i.e. foot mat (Ex.P-6), wheel spanner (Ex.PY) & danda (Ex.P-4), so collected by the police from the spot/car, matched with that of the accused.
6. Before this Court, no other circumstance stands pressed.
7. Trial Court found absence of motive not to be a reason sufficient enough to acquit the accused. Also, with the prosecution having proven the circumstance of last seen together, Court found the burden to have shifted upon the accused to establish their innocence. ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP
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8. At the threshold, it be only observed that trial Court seriously erred in ignoring the settled principle of law, more so, in a case of murder, sought to be .
established by the prosecution through circumstantial evidence. It is a settled principle of law that onus to establish the case of homicide, beyond reasonable doubt, by linking all the circumstances, establishing the guilt of the accused alone, and none else, has to be only and only that of the prosecution.
9.
r to In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held as under:
"...Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code".
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10. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...6...
possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused.
11. Admittedly there is no eye-witness to the .
alleged incident in relation to which accused stand convicted. Prosecution case primarily rests upon circumstantial evidence. The law on circumstantial evidence is now very well settled. To base a conviction on circumstantial evidence, prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events, as would permit no conclusion other than the one, only of the guilt of the accused. Circumstances to be proved have to be beyond reasonable doubt and not based on principle of preponderance of probability. Suspicion, howsoever, grave, cannot be a substitute for a proof and courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.
12. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon'ble the Supreme Court of India held that:-
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...7...
been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by .
means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of 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. ................."
10. .........In Bhagat Ram v. State of Punjab [AIR 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
(Emphasis supplied)
13. Also it is a settled proposition of law that when there is no direct evidence of crime, guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with crime. All the links in the chain of circumstances, must be established beyond reasonable doubt, and the proved circumstances should be consistent only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP
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While appreciating the circumstantial evidence, Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence.
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[See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Trimukh Maroti Kiran versus State of Maharashtra, (2006) 10 SCC 681; Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; Ashok Kumar Chatterjee vs. State of M.P., 1989 Supp. (1) SCC 560; Balwinder Singh vs. State of Punjab, (1987) 1 SCC 1; State of U.P. vs. Sukhbasi, 1985 Supp. SCC 79; Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116; Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Hukam Singh vs. State of Rajasthan, (1977) 2 SCC 99; and Eradu vs. State of Hyderabad, AIR 1956 SC 316]
14. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, Hon'ble the Supreme Court of India held that:-
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...9...
difference between something that "may be"
proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite .
large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be"
true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Vide: Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109: AIR 2011 SC 1017; and Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777].
14. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808: AIR 1973 SC 2773, this Court observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...10...
relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""
15. Relying upon its earlier decision in Hanumant .
Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, Hon'ble the Supreme Court of India in Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, again reiterated that:
"15. .... ... Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence."
16. Having said that, in the instant case, prosecution has to establish, by leading clear, cogent and convincing piece of evidence that the accused alone are guilty of the charged offences. Evidence led has to be not only clear and cogent, but also convincing. Doctrine of preponderance of probability or suspicion alone would not be sufficient enough to convict the accused. It is in ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...11...
this backdrop that we now proceed to discuss the evidence led by the prosecution.
17. There is no dispute about identity of the .
deceased. Dilbar Singh (PW-13) has proved that keys of vehicle No.HP-14A-6413 were handed over by him to the deceased on 10.4.2011. The fact that same day at about 10 p.m., the accused, including the juvenile in conflict with law, had hired the said vehicle, for dropping them to a place known as Pujarli, is sought to be established through the testimony of Prakash Thakur (PW-17). However, when we peruse his testimony, we do not find him to have fully supported the prosecution. He was declared hostile and cross-examined by the learned Public Prosecutor. Though initially he did try to state that the accused, at about 11 p.m., were seen sitting with the deceased in the car, but then he contradicted himself by first stating that he could only identify accused Ravi Kumar and further qualified by stating that "It is also correct that perhaps I am identifying a wrong person here in the court as I had identified the accused about one and half years ago and there was similarity of feature of all the accused". Now significantly, this witness did not know the accused from before. He admits it to be so. He ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...12...
was neither their acquaintance nor were the accused from his area. Circumstance of last seen is sought to be established through the testimony of only this witness, .
which we do not find to have been established, beyond reasonable doubt. He identifies only one person. As is so stated by him, he saw the accused sitting in the vehicle in the night of 10.4.2011 at about 11 p.m. However, he does not state that at that time, lights of the vehicle were observed that police on or that he had stopped the vehicle and spoken with the accused or the deceased. At this juncture, it be also did not carry out any test identification parade. This witness was taken to the Police Station, where all the three accused persons, namely Ravi Kumar, Manish Lohat and the juvenile in conflict with law were present, yet he was able to identify only one person, which version of his also cannot be said to be inspiring in confidence. There is no other witness or document establishing identity of the accused, in relation to the circumstance of the accused lastly seen in the company of the deceased. Hence, we do not find this contention to have been proven beyond reasonable doubt.
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18. Dead body of the accused was noticed firstly by Dalbir Singh (PW-14), in the morning of 11.4.2011. It was lying inside the car. There was wound on the head .
and a dog chain was tied around the neck of the deceased. This witness immediately passed on the information to Vinod Sharma (PW-15), who informed the police. Whereafter, Inspector Sarwan Singh (PW-28) reached the spot. It has come on record that the said police official immediately took the dead body into possession and sent it for postmortem. It is also a matter of record that no incriminating article, belonging to the accused, other than the dog chain (Ex.P-20), allegedly purchased by the juvenile in conflict with law, was found, either inside or outside the car.
19. At this juncture, it be noticed that the said dog chain allegedly came to be purchased by the juvenile in conflict with law from the shop of Ramesh Kumar (PW-
18), a salesman working in a shop at Lower Bazaar, Shimla. Well, all that this witness states is that in the month of April, 2011, all the accused had purchased a dog chain from the shop, by making payment of `30/-. We are unable to persuade ourselves in accomplishing the veracity of such statement and this we say so for the ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...14...
reason that no record with regard to his employment in the shop stands produced by the police. The Investigating Officer also does not state as to how he was .
able to reach to this witness or the shop where he was working as a salesman. Allegedly, police got the accused identified from this witness, two months after the occurrence of the incident, but then it is not the case of prosecution that any identification process was undertaken by the police.
to Further, this witness admits that dog chains are easily available in the market. Most importantly, no receipt/bill for the sale of the dog chain was prepared or issued. Hence, purchase of the dog chain by the accused persons cannot be said to have been established on record. What is also important is that the witness has not identified the dog chain (Ex.P-
20) used as a weapon of offence to be one which, allegedly was purchased by the accused persons. Accused were not known to this witness from before. Hence, his version with regard to identification thereof, is unbelievable. Save and except, for the testimony of this witness, there is no other evidence, ocular or documentary, linking the accused to the weapon of offence. No fingerprints of the accused or signs of blood ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...15...
of the deceased were found on the chain. Hence, the contention that the accused having either purchased the dog chain or used it in the crime cannot be said to have .
been proven on record.
20. The dead body, recovered by PW-28, was sent for postmortem, which was conducted by Dr. Piyush Kapila (PW-24). When we peruse the postmortem report (Ex.PW-24/D), we find that the deceased had consumed r to alcohol. It is the case of prosecution that an altercation took place between the accused and the deceased, on the issue of fare of the taxi. Well, this is factually incorrect, for it be observed that the vehicle in question is not a taxi or a private vehicle used for commercial purpose. Also, there is no evidence on record, establishing factum of any dispute, more so with regard to fare. The fact that deceased was under the influence of alcohol may not have any bearing on the outcome of this case, but then one cannot forget that deceased had more than 14 lacerated wound injuries on his head, as is evident from the postmortem report. It is the pointed case of the prosecution that injuries on the head were inflicted by the juvenile in conflict with law, who stands already acquitted by the Court having competent ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...16...
jurisdiction and in relation to which no appeal stands preferred. Qua the present accused, it is the case of the prosecution that they strangulated the deceased with a .
dog chain. We do notice Dr. Piyush Kapila to have opined that injuries found on the body of the deceased could have been inflicted with the dog chain (Ex.P-20) and spanner (Ex.PY), but then as is evident from the report of the Forensic Science Laboratory (Ex.PW-24/E), no stains of blood were found on the dog chain, so also on the spanner. There is nothing else to establish the factum of use of these weapons for murdering the deceased.
21. For establishing the factum of the accused having used the vehicle, our specific attention is invited to the report of the Fingerprints Bureau, Bharari (Shimla) (Ex.PW-16/B). Perusal of testimony of ASI Sanjeev Kumar (PW-16) does establish that fingerprints, so lifted from the side seat, dashboard and glass of the window, matched with that of accused Manish Lohat. But then the fundamental question, which arises for consideration, is as to who took sample fingerprints of the accused, more so that of accused Manish Lohat. None of the police officials have testified to such effect. Also, there is no document in this regard. In any case how does police ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...17...
establish presence of accused Ravi Kumar on the spot. Repetitive though it may sound, but we must reiterate that no fingerprints of any one of the accused were found .
on the weapon of offence.
22. It is the case of prosecution, as is evident from the testimony of the Investigating Officer that accused Ravi Kumar was arrested on 2.4.2011 and accused Manish Lohat was arrested on 5.4.2011. Further accused Manish Lohat made a disclosure statement (Ex.PW-19/A), which led to recovery of keys of the car as also identification of spot of crime, vide memo Ex.PW- 20/B. Clothes worn by the accused were also taken into possession and the spot where they had burnt the jacket of the deceased was also got identified. On this issue, we may only observe that no fact came to be discovered, pursuant to the said disclosure statement, save and except about recovery of keys of the vehicle. Even here, we find there is material contradiction, for one of the witnesses to the recovery states that the key was recovered from a place near Tara Bhojalaya, whereas other witness states that it was near a place known as 'AG Chowk'. Well, both the witnesses may be referring to the very same place, but the fact of the matter is that ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...18...
water tank where the keys were lying was visible to all. In fact, it is a public place/path and easily accessible to the general public. But crucially, whether the key .
recovered was actually that of the car or not, that fact remains unestablished. In fact, Rajinder Kumar (PW-20), who is witness to the recovery, does not state with certainty as to whether the key recovered was that of the car in which deceased was found. Dilbar Singh (PW-13), owner of the car has not identified the key. Also, such fact has not been established by any mechanical expert. Hence, even this circumstance has not been proved by the prosecution.
23. Much emphasis is laid on the circumstance of accused Ravi Kumar stealing the mobile phone of the deceased and selling it to a shopkeeper in another State, i.e. Haryana at Karnal. For establishing such fact, our specific attention is invited to the ocular evidence of Constable Navdeep Kumar (PW-3), Sunny (PW-4), Vikas Kashyap (PW-5), Manoj Sharma (PW-7), Pradeep Panchal (PW-22), HC Manoj Kumar (PW-27), Inspector Sarwan Kumar (PW-28) and Vishal Thakur (PW-29), as also documents (Ex.PW-3/A, Ex. PW-3/B, Ex.PW-23/A-1, Ex.PW- 23/B-1 to B-47 and Ex.PW-29/A).
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24. In crux, it is the case of prosecution that after stealing the mobile phone of the deceased, Ravi Kumar sold it to Pradeep Panchal (PW-22), a shopkeeper at .
Karnal (Haryana), for a sum of `500/-, who in turn allowed his nephew Sunny (PW-4) to use the same for his personal use.
25. During the course of investigation, the IMEI number of the mobile was kept on tracking, which revealed that immediately prior to the occurrence of incident, deceased had made a call to an unknown number and two days thereafter Manoj Sharma (PW-7), a friend of accused Ravi Kumar had called him on his mobile number, SIM of which was inserted and used in the handset of the mobile phone of the deceased. It is only with the help of the IMEI number and the record of the mobile number, i.e. statement of calls so provided by the service provider, that police was able to arrive at such a conclusion.
26. We may only observe that even this circumstance cannot be said to have been established on record and this we say so for two reasons - (a) record produced by the service provider, i.e. call data record (Ex.PW-23/A-1, Ex.PW-23/B-1 to Ex.PW-23/B-47 and ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...20...
Ex.PW-29/A), have not been certified, as is so required under the provisions of Section 65-A of the Evidence Act. As such, in view of law laid down by the Apex Court in .
Anvar P.V. v. P.K. Basheer and others, (2014) 10 SCC 473; Harpal Singh alias Chhota v. State of Punjab, (2017) 1 SCC 734; Vikaram Singh alias Vicky Walia and another v. State of Punjab and another, AIR 2017 SC 3227; and Sonu alias Amar v. State of Haryana, AIR 2017 SC 3441,
(a) the said documentary evidence is wholly inadmissible in law, and (b) in any event, prosecution has not been able to establish that mobile of the deceased was ever used by accused Ravi Kumar. Manoj Sharma (PW-7) does state that on 12.4.2011, he had conversation with accused Ravi Kumar on phone. Allegedly, he made a call from his mobile number on the mobile number of the accused, but then, he is conspicuously silent with regard to the number of the mobile. He has not disclosed either his mobile number or that of accused Ravi Kumar. In fact, he is certain of having informed the police about the mobile number of accused Ravi Kumar. Thus, what prevented the police to take the investigation its logical end is a mystery.
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27. Further, it is not the case of prosecution that accused Ravi Kumar was either known to Pradeep Panchal (PW-22) from before or was a frequent visitor to .
Karnal (Haryana). In any case, Pradeep Panchal (PW-22) is not a registered retailer. His version that he purchased the mobile from the accused for a sum of `500/- is unbelievable. No receipt ever came to be issued. Why would he purchase a phone from an unknown person? to Karnal.
r to Except for this ocular version police has not been able to establish movement of accused Ravi Kumar from Shimla For after all, why would the said accused travel all the way to Karnal to sell a mobile phone and that too only for a sum `500/-. It is nobody's case that otherwise said accused happened to be at Karnal. At this juncture, we may also observe that police tried to identify the mobile phone of the deceased through the testimony of his brother, namely Vikas Kashyap (PW-5). But then, careful perusal of his testimony also does not conclusively establish that mobile phone so recovered by the police was in fact used by the deceased at the time of the incident, for the witness admits that the deceased had changed his mobile twice or thrice. At this juncture, it be observed that the prosecution wants the Court to ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...22...
believe that in fact mobile number 9129071808 was actually being used by accused Ravi Kumar for his personal use, of which this witness and as already .
observed Manoj Sharma (PW-7) does not disclose such fact and from the record (Ex.PW-29/A), it is evident that the said mobile number belonged to one Kishori of Muhal Sital, Tehsil Chamba, District Chamba, Himachal Pradesh, a place distant from Shimla and prosecution has not been being used by able to establish the link between any one of the accused with this person. Also, the fact of this mobile number accused Ravi Kumar remains unestablished on record.
28. It is in this backdrop, we find the trial Court not to have correctly and completely appreciated the evidence, as also correctly applied the principles of law, thereto. Trial Court presupposed the guilt of the accused. It pre-judged and presupposed certain facts. It believed that the accused were known to the deceased. Also, accused had hired the car and that an altercation took place between them over the amount of fare. Now this fact remains unestablished on record. What was the fare? For what purpose vehicle was hired? Whether it could have been hired at all? What was the starting point and ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...23...
the destination? Who all fought? remains unestablished on record.
29. Absence of motive has been held a ground .
not sufficient to acquit the accused. Yes, it is the law that absence of motive, in the facts and circumstances, may not be a reason for acquittal, but then, in the instant case, more so where prosecution is seeking to establish the case by way of circumstantial evidence prosecution ought to have assigned some reasons for the assault. It is not the case of prosecution that scuffle took place on the spur of the moment, making the motive to be an irrelevant factor. As already observed, prosecution has not been able to establish the circumstance of last seen. Hence, motive was a relevant factor, which ought to have been established by the prosecution.
30. At this juncture, it be only observed, as is so evident from Para-40 of the impugned judgment, that the Court accepted the factum of the prosecution having established the circumstance of last seen together, obligating the accused to discharge the burden, explaining their presence on the spot at the relevant time. It is here, we find the Court below to have erred in not appreciating, that onus to prove every circumstance ::: Downloaded on - 14/09/2017 12:36:21 :::HCHP ...24...
interlinking each one of them, leading to no other presumption, save and except that of the guilt of the accused, was on the prosecution.
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31. The Court presupposed that dog chain came to be purchased from Ramesh Kumar (PW-18) and that it was used as a weapon for strangulating the deceased. On this issue, one may only observe that trial Court has not discussed the evidence at all. Further, it erred in believing the prosecution case of the accused having sold the mobile phone to Pradeep Panchal, for a sum of `500/- . Another link in the chain, which weighed with the trial Court, was the report of the Expert (Ex.PW-16/B). It did not bother to even examine the record for ascertaining the fact, as to who and at which place sample fingerprints of the accused were taken by the police or sent to the Forensic Science Laboratory, without the same having been tampered with.
32. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused.
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33. Hence, for all the aforesaid reasons, the appeals are allowed and the judgment of conviction and sentence, dated 1.1.2014/6.1.2014, passed by Sessions .
Judge (Forests), Shimla, Himachal Pradesh, in Sessions Trial No.41-S/7 of 2013/12, titled as State of H.P. v. Ravi Kumar and another, is set aside and both the appellants-accused Ravi Kumar and Manish Lohat are acquitted of the charged offences. They be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to them accordingly. Release warrants be immediately prepared.
Appeal stands disposed of, so also pending application(s), if any.
(Sanjay Karol),
Acting Chief Justice
(Ajay Mohan Goel),
September 13, 2017(sd) Judge.
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