Himachal Pradesh High Court
________________________________________________________ vs State Of Himachal Pradesh on 15 May, 2019
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 367 of 2017 Reserved on: 28.3.2019 Decided on: 15.5.2019 ________________________________________________________ Sahil Singh .....Appellant.
.
Versus State of Himachal Pradesh. ......Respondent. _____________________________________________________ Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.
____________________________________________________ For the appellant: Mr. Anup Chitkara & Ms Sheetal Vyas, Advocates.
For the respondent: Mr. Vikas Rathore, Addl. A.G.,
with Mr. J.S. Guleria & Mr.
Kunal Thakur, Deputy
r Advocate Generals.
Dharam Chand Chaudhary, Judge.
The present appeal has been preferred by the appellant/accused/convict (hereinafter referred to as "the accused") laying challenge to judgment dated 16.5.2017, rendered by learned Additional Sessions Judge (I), Kangra at Dharamshala, in Sessions Case No. 2-1/VII of 2015, whereby the accused was convicted and sentenced for the offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").
2. Succinctly, the facts giving rise to the present appeal, as per the prosecution story can tersely be summarized as under:-
"On 13.9.2014, Moti Lal son of Shanti Swarup, 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 2
Up- Pardhan, Gram Panchayat, Toki (hereinafter referred to as 'the complainant') was present in his house, when he received telephone of his friend, Kishori Lal son of Rakha .
Ram, that the accused has quarrelled with his wife and he called the complainant at Mohatli Ramp. On this, the complainant went to Mohatli Ramp at about 8.00 a.m. and found Paramjeet Singh, the father of the accused, Kishori Lal and Gurmukh Singh near the gate of the factory. It has been alleged that Paramjeet Singh disclosed that the accused telephoned him in the morning that his wife Trishla has become unconscious in the quarrel took place between them.
He entered the factory with Paramjeet Singh, Kishori Lal and Gurmukh Singh and found the accused present in his house and when the complainant inquired, as to what happened, the accused disclosed that yesterday night his wife quarrelled and abused him, which he could not tolerate and as such, he killed her. It has further been alleged that the accused also disclosed that her dead body was lying in the bedroom and on this, all of them went to the bedroom and found the dead body of the deceased lying on the bed. There were injuries on her neck, eyes etc. It has been alleged that the complainant informed the police that the accused has murdered his wife. On such information, SI Ashok Kumar, came to the spot and recorded the statement of the complainant, under Section 154 of the Cr.P.C. upon which formal FIR was registered at Police Station, Indora. During ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 3 the course of investigation, forensic team was also called for the spot inspection. The site map was prepared. The postmortem of the deceased was conducted at Civil Hospital, .
Nurpur and statements of the witnesses were also recorded.
The spot was photographed and videographed. The accused was arrested and was got medically examined. During investigation, on the statement of the accused, under Section 27 of the Indian Evidence Act, Dupatta and Compass were recovered. Forensic Science reports were obtained. On completion of investigation, charge-sheet against the accused for the commission of offence punishable under Section 302 of the Indian Penal Code was presented in the Court".
3. The accused was charged by the Trial Court for the commission of offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined as many as twenty five witnesses. The statement of the accused was recorded under Section 313 Cr.P.C., he claimed innocence. No defence witness was produced by the accused.
5. The learned Trial Court, vide impugned judgment, convicted the accused for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of `10,000/-
::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 4(rupees ten thousand) and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of one year, hence the present appeal preferred by the .
accused-convict.
6. We have heard Mr. Anup Chitkara, learned Counsel for the appellant/accused and Mr. J.S. Guleria, learned Deputy Advocate General, for the respondent/State.
7. Mr. Anup Chitkara, learned Counsel appearing for the accused has argued that the judgment of conviction passed by the learned Trial Court, is not sustainable, as the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. He has further argued that the story of beatings by the accused to the deceased earlier is not proved, as no written compromise arrived at between the parties was proved, as stated by the witnesses. He has argued that the allegations of uncordial relationship between the deceased and the accused has also not been proved, as it has come in evidence that the accused used to drop the deceased up to School, where she was teaching. He has further argued that PW6 Mrs. Mridu has stated that she has told the deceased that such type of cockfight do happen in the houses. He has argued that doctor has also not supported the prosecution case. He has further argued that the discovery of the Dupatta and Compass were not on the voluntary statement of the accused. He has argued that public murmuring that the ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 5 accused has killed his wife cannot form the basis of conviction and extra judicial confession was not proved by the prosecution. He has further argued that the case is .
based upon circumstantial evidence, the chain of which is not complete.
8. On the other hand, Mr. J.S. Guleria, learned Deputy Advocate General appearing for the respondent-State has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has argued that the plea of alibi though taken by the accused, but not proved. The accused has not given any explanation with respect to the death of his wife, when he was living with her. The disclosure statement made by the accused led to the discovery of Dupatta with which the accused has killed his wife. There is sufficient material with respect to the uncordial relationship between the couple.
9. In rebuttal, Mr. Anup Chitkara, learned counsel for the accused has argued that it was a secluded place, so, someone coming from outside can kill the wife of the accused, however, such theory is not at all investigated by the police and the accused has made a skip gamut and he is required to be acquitted, as there is a difference between 'may be' and 'shall be'.
10. In order to appreciate the rival contentions of the parties, we have gone through the record carefully.
::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 611. The present being not a case of direct evidence and rather hinges upon circumstantial evidence casts an onerous duty on this Court to find out the truth by .
separating grain from the chaff. In other words, it has to be determined that the facts of the case and the evidence available on record constitute the commission of an offence punishable under Section 302 IPC against the accused or not. However, before coming to answer this poser, it is desirable to take note of legal provisions constituting an offence punishable under Section 302 IPC. A reference in this regard can be made to the provisions contained under Section 300 IPC. As per the Section ibid, culpable homicide is murder firstly if the offender is found to have acted with an intention to cause death or secondly with an intention of causing such bodily injury knowing fully well that the same is likely to cause death of someone or thirdly intention of causing bodily injury to any person and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if it is known to such person that the act done is imminently so dangerous that the same in all probability shall cause death or such bodily injury as is likely to cause death.
12. Culpable homicide has been defined under Section 299 IPC. Whoever causes death by way of an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 7 the knowledge that he is likely by such act to cause death can be said to have committed the offence of culpable homicide. Culpable homicide is murder if the act by which .
death is caused is done with the intention of causing death.
Expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degree. We are drawing support in this regard from the judgment of Apex Court in Jagriti Devi vs. State of Himachal Pradesh, AIR 2009 SC 2869.
13. The ingredients of culpable homicide amounting to murder, therefore, are: (i) causing death intentionally and
(ii) causing bodily injury which is likely to cause death.
Rather the present is a case where the evidence available on record is suggestive of that it is the accused who had caused the death of his wife by throttling with dupatta Ext. P-5, needs reappraisal of the evidence available on record.
However, before that it is deemed appropriate to point out that if the accused had motive to cause death of deceased, the eye witness count of the occurrence may not be required, however, where the motive is missing, the prosecution is required to prove its case with the help of testimony of eye witnesses.
14. The present being a case of circumstantial evidence, the Court seized of the matter has to appreciate such evidence with all care and circumspection and rely upon only if establishes the guilt of the accused alone and ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 8 rule out all possibilities leading to the presumption of innocence of the accused. The law is no more res integra as support can be drawn from the judgment of a Division Bench .
of this Court in Sulender vs. State of H.P., Latest HLJ 2014 (HP) 550. The relevant extract of this judgment reads as follows:
[21] It is well settled that in a case, which hinges on circumstantial evidence, circumstances on record must establish the guilt of the accused alone and rule out the probabilities leading to presumption of his innocence. The law is no more res integra, because the Hon'ble Apex Court in Hanumant Govind Nargundkar Vs. State of M.P, 1952 AIR(SC) 343 has laid down r the following principles:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
[22] The five golden principles, discussed and laid down, again by the Hon'ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 4 SCC 116, are as follows:
::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 9(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,
(ii) 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,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) 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 r accused."
15. Similar is the ratio of the judgment rendered again by this Bench in State of Himachal Pradesh vs. Rayia Urav @ Ajay, ILR 2016 (5) (HP) 213. The relevant text of this judgment also reads as follows:
"[10] As noticed supra, there is no eye-witness of the occurrence and as such, the present case hinges upon the circumstantial evidence. In such like cases, as per the settled proposition of law, the chain of circumstances appearing on record should be complete in all respects so as to lead to the only conclusion that it is accused alone who has committed the offence. The conditions necessary in order to enable the court to record the findings of conviction against an offender on the basis of circumstantial evidence have been detailed in a judgment of this Court in ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 10 Devinder Singh V. State of H.P, 1990 1 Shim LC 82 which reads as under:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully .
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 guilt.
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.
[11] It has also been held by the Hon'ble Apex Court in Akhilesh Halam V. State of Bihar, 1995 Supp3 SCC 357 that the prosecution is not only required to prove each and every circumstance as relied upon against the accused, but also that the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant portion of this judgment is reproduced here-as-under:-
" ............It may be stated that the standard of proof required to convict a person on circumstantial evidence is now settled by a serious of pronouncements of this Court. According to the standard enunciated by this court the circumstances relied upon by the ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 11 prosecution in support of the case must not only be fully established but the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for as conclusion consistent with the innocence of the accused. The circumstances from which .
the conclusion of the guilt of an accused is to be inferred, should be conclusive nature and consistent only with the hypothesis of the guilt of the accused and the same should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together lead to the only irresistible conclusion that the accused is the perpetrator of the crime.........."
16. This Court has again held in State of Himachal Pradesh Vs. Sunil Kumar, Cr. Appeal No. 326 of 2011 decided on 15.6.2017 as under:
"13. It is more than settled that in case of circumstantial evidence, the circumstances from which inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
ii) Those circumstances should be of a definite tendency un- erringly pointing out towards the guilt of the accused.
iii) The circumstances taken cumulatively, should form a complete chain so that to come ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 12 to the conclusion that the crime was committed by the accused.
14. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court .
should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
15. In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 rSuppl. (1) SCC 173)."
17. The Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:
"48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 13 would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is .
punished. This is human psychology and no one can help it.
... ... ... ... ... ...
150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this:
where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
... ... ... ... ... ...
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of
evidence led by the prosecution have
been satisfactorily proved.
(2) the said circumstance point to the guilt
of the accused with reasonable
definiteness, and
(3) the circumstance is in proximity to the time and situation.::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 14
159. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to .
be such a case. This aspect of the matter was examined in Shankarlal's case (AIR 1981 SC 765) (supra) where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly r to the guilt of the accused."
160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so- called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."
18. The Hon'ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme Court 79, has held as under:
"12. There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 15 the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, PW-8 and brother PW-9 claiming exclusive possession of the disputed land, that the deceased was found dead on the morning of 7.9.85 and that there .
were certain visible injuries such as abrasions, nail marks and contusions on the part of the nose, upper lip, chin and neck etc. as noted by the Medical Officers (PWs 5 and
6) in the post-mortem report Ex. P. 9. The appellate Court on the strength of the opinion given by the Medical Officers (PWs 5 and 6) has agreed with the view of the Trial Court that the death of the deceased was of homicidal one and not suicidal and held "therefore suicidal is ruled out." We also very carefully went through the evidence of the Medical Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.
... ... ... ... ... ...
15. While considering the above
circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage house of PW-1 throughout the night is nothing but a false explanation and that the culprits who ever they might have been should have administered the poison to the victim and thereby caused her death and that there is very strong suspicion against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:
"There is no evidence whatsoever either from the neighbours or from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these circumstances, it is not possible to hold that the prosecution has established the guilt on ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 16 the part of A. 1 to A. 3. Thus, there is no conclusive evidence that the accused committed the offence of murder. It is an unfortunate case where cold-blooded murder has been committed and it is difficult to believe that no inmate of the house had any .
hand in the offence of murder. But that will be only a suspicion which cannot take the place of proof."
16. We, in evaluating the circumstantial evidence available on record on different aspects of the case, shall at the foremost watchfully examine whether the accused 1 to 3 had developed bad-blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill-treated either by her husband or in-laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill-treated the deceased, which observation we have extracted above.
Hence, we hold that there is no sufficient material to warrant a conclusion that the accused had any motive to snatch away the life threat of the deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the scene house and that she has been done away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life. As observed by the appellate ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 17 Court, the explanation offered by accused 1 to 3 that they remained in the house of PW 1 throughout the night is too big a pill to be swallowed. But at the same time, in our view, this unacceptable explanation would not lead to any irresistible inference that the .
accused alone should have committed this murder and have come forward with this false explanation. We have no hesitation in coming to the conclusion that it is a case of murder but not a suicide as we have pointed out supra. The placing of the tin container with the inscription 'Democran, by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body. Even if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Ex. P. 6 to P. 8 alleged to have been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No.1 in this written statement is that by about the time of the arrival of the police, one Sathi Prasad Reddy handed over these letters to him saying that he (Reddy) found them near the place where the dead body was laid and that he (A-1) in turn handed over them to the police. PWs 8 and 9 have deposed that these letters are not under the hand writing of the deceased. But the prosecution has not taken any effort to send the letters to any hand- writing export for comparison with the admitted writings of the deceased with the writings found in Ex. P. 6 to P. 8. Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.
::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 1817. No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that all the accused or any of them are the real culprits. The .
circumstances indicated by the learned Counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not.
... ... ...
... ... ...
22. We are of the firm view that the
circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any r decisive conclusion that either all these accused or any of them committed the murder of the deceased, Vijaya punishable under Section 302 read with Section 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A I.P.C. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference."
19. The guilt or innocence of the accused has to be determined in the light of the above legal parameters as well as the evidence available on record. Learned trial Court has taken note of the following circumstances, allegedly incriminating against the accused while recording findings of conviction against him.
(i) The deceased was the wife of accused and they were residing together in the same house at the relevant time.
(ii) The deceased was subjected to torture by the accused which shows the previous conduct of ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 19 the accused.
(iii) The deceased was found lying dead on the bed in the house where the deceased and accused were residing together.
.
(iv) The medical evidence of autopsy surgeon corroborating the prosecution version regarding cause of death of the deceased.
(v) Silence of the accused of being questioned during his examination under Section 313 Cr.P.C. as to the cause of death of his wife Trishla.
(vi) Blood stains on the clothes of accused and report of Serologist."
20. As a matter of fact, the circumstances at Sr. No.
(i) and (iii) cannot be said to be incriminating circumstances in any manner whatsoever and rather it is admitted case of the parties that deceased was wife of accused and at the relevant time, they were residing at Mahotli Ramp in the premises of "Welding Rod Factory", belonging to father of the accused. It is also proved from the prosecution evidence as has come on record by way of the testimony of PW-1 Moti Lal, the complainant, PW-7 Kishori Lal and PW-19 Gurmukh Singh that the dead body of Trishla, the wife of accused was lying on bed in the residential portion of the factory premises. Therefore, incriminating circumstances appearing against the accused on record can only be as under:
"1. The accused after marriage started torturing the deceased and the matter ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 20 came to be reported to the police of Police Post Damtal also.
2. That the deceased on account of beatings administered to her and her torturing at .
the hands of the accused abandoned his company and went to the house of her parents, however, on the repentance and assurance given by the accused that she will be treated nicely, joined his company again.
3. That during the night intervening 12/13.9.2014, the accused quarreled with the deceased and as she abused him which he could not tolerate, hence r murdered her by way of throttling with dupatta Ext. P-5.
4. The accused and deceased being in the company of each other during the night intervening 12/13.9.2014 were lastly seen together.
5. Blood stains on the clothes of the accused as per report of Serologist Ext. P-22."
21. As we have already pointed out, in a case which hinges upon circumstantial evidence alone, the Court should adopt cautious approach while recording the findings of conviction on such evidence and unless the incriminating circumstances form a complete chain, no conclusion should be drawn that the offence has been committed by the accused alone and none else. It is in this backdrop, the incriminating circumstances culled out and detailed hereinabove have to be taken into consideration one by one ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 21 to find out as to whether the same form a complete chain so that a conclusion that it is the accused alone and none else has murdered his wife the deceased could have been drawn.
.
Circumstance No. 1.
22. The prosecution story that immediately after his marriage in August, 2004, the accused started torturing the deceased with cruelty rests upon the sole testimony of PW-3 Nirmal Rani, mother of deceased and her husband (father of the deceased) PW-9 Ram Murti. Admittedly, the deceased solemnized marriage with the accused against the wishes of her parents PW-3 Nirmal Rani and PW-9 Ram Murti. The ring ceremony (Roka) had already taken place but the parents of the accused and deceased were at variance qua the ceremony under which the marriage was to be solemnized. While the parents of the accused were interested in Anand Karz (the mode of solemnization of marriage in Sikh Community), the parents of the deceased wanted to solemnize the marriage as per Hindu rites and ceremonies. Their differences went to such an extent that the gift items exchanged by both sides during Roka ceremony were returned to each other. The deceased and accused, however, were in love with each other and interested to solemnize marriage. As per the own statement of PW-3 Nirmal Rani, the deceased even after return of gifts told her that accused want to solemnize marriage with her and if she refused to marry, he threatened her that he will ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 22 commit suicide. Not only this, but PW-3 Nirmal Rani further tells us that according to deceased, the accused was a good person and not bad. It is after apprizing her mother PW-3 .
Nirmal Rani, the deceased and accused solemnized marriage with each other because as per the own version of PW-3 Nirmal Rani on 11.8.2014, when they reached at the place of marriage, the marriage ceremonies had already taken place.
As per her admission, the ceremony of "Kanya Dan" was performed by Brig. Sansar Chand who was known to them.
They were also invited to attend the reception. As per further admission of PW-3 Nirmal Rani, after marriage, the accused and deceased started living in the matrimonial home situated at Jodhamal Road Pathankot. She further admits that the relations between the deceased and accused were cordial. The accused had been dropping the deceased in the school at Kandrori where she was working as teacher and also bringing her back to the matrimonial home in the Car. If in this backdrop, the statement of PW-3 Nirmal Rani and for that matter that of PW-9 Ram Murti that soon after the marriage solemnized on 11.8.2014, the accused started giving beatings to the deceased cannot be believed to be true.
We have reason to believe that they both have deposed falsely being inimical not only to the accused but were not happy with their daughter, the deceased also as she had solemnized the marriage with the accused against their wishes. Interestingly enough, the second incidence of ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 23 maltreatment allegedly reported to the police of Police Station Damtal is not at all proved because had it been so, the Investigating Officer should have obtained the record of .
the complaint if so lodged and added in the record of this case for being produced in evidence. No such evidence has, however, been produced. Therefore, the story of the mal treatment and beatings being given by the accused to the deceased is not at all proved on record. No doubt, PW-6 Mridu, a colleague of the deceased has stated that the deceased on one occasion apprized her about some cockfight going on between her and the accused, however, the testimony of this witness is also not sufficient to conclude that the relations between the accused and deceased had worsened to such an extent that the accused had taken a drastic step to kill her. Otherwise also, cockfight between husband and wife is common in Indian society, hence a routine matter. Even PW-6 Mridu also admits in her cross-
examination that such cockfight can be seen in every family.
She also admits that while living together the accused used to drop the deceased at the door step of the school. As per the testimony of PW-10 Suman, another fellow teacher, the deceased used to tell about her harassment by her husband (the accused). Though, she advised her to take some decision, however, on each occasion the deceased told her that she will mend ways of her husband. The close scrutiny of the evidence, therefore, leads to the only conclusion that ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 24 the allegations of alleged maltreatment and torture of the deceased at the hands of the accused is not proved beyond all reasonable doubt.
.
23. Now, if coming to the alleged quarrel between the accused and deceased during the night intervening 12/13.9.2014, again there is no circumstance to show even prima-facie that they both quarreled and it is the accused alone who killed her by way of throttling her neck.
Circumstance No. 2.
24. During the course of discussion on circumstance No. 1 hereinabove, we have ruled out the possibility of the accused started treating the deceased with cruelty immediately after the marriage. Apart from the testimony of PW-3 Nirmala Rani, the mother of the deceased and PW-9 Ram Murti, her father that when after 10 days of the first incident of beating the matter was reported to the police of Police Post Damtal and the deceased was brought by them to their house is not at all proved as had it been so, some record would have been maintained in Police Post Damtal. The same, however, has not been produced on record nor anyone either from the locality where the accused was residing with the deceased or for that matter from the native place of PW-3 Nirmal Rani and PW-9 Ram Murti were associated by the I.O. during the course of investigation because it is such person who could have thrown some light qua this aspect of the matter. On the other hand, the ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 25 prosecution evidence that the accused had been dropping the deceased in the Car in her school at Kandrori and also used to pick her up after school time in the evening till they .
both lived as husband and wife lead to the only conclusion that the differences if any, between them were not of such a nature so as to compel the deceased to abandon the company of the husband, the accused. She may otherwise be visiting her parental house in routine. Therefore, it is also not proved that the deceased on account of her maltreatment and torturing at the hands of the accused had abandoned the company of the accused and started living in the house of her parents. There is also nothing to suggest that on repentance and assurance given to the accused that she will be treated nicely, she could join his company again.
Circumstances No. 3 & 4.
25. Admittedly, the accused had shifted his residence from Jodhamal Colony, Pathankot to Mohatli Ramp, the premises of their factory and started living there with the deceased. As per the prosecution story, the accused and deceased quarreled with each other during the night and as she abused him which he could not tolerate hence committed her murder. The prosecution has based this part of its case on the statement Ext. PW-1/A made under Section 154 Cr.P.C. by Moti Lal (PW-1). PW-1 Moti Lal at the relevant time was Up Pradhan of Gram Panchayat Toki. According to him, around 7:30 AM, PW-7 Kishiori Lal ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 26 informed that some quarrel had taken place between the accused and his wife at Mohatli ramp. He went to the spot around 8:00 AM and found PW-7 Kishori Lal, Paramjit .
Singh, father of the accused and PW-19 Gurmukh Singh, present near the gate of factory there. They all went to the place of occurrence which according to him was lintel of the building of factory. There, he found Trishla, the wife of the accused dead. He reported the matter to the police. The police reached the spot and recorded his statement Ext. PW-
1/A which according to him bears his signatures. He has not supported the prosecution case that the accused confessed before him in the presence of PW-7 Kishori Lal, Paramjit Singh and PW-19 Gurmukh Singh, that he killed his wife after they quarreled with each other and she abused him which he could not tolerate. Also that, the accused requested them to save him from the wrong he had committed. Similar is the version of PW-7 Kishori Lal and PW-19 Gurmukh Singh because as per their version also, they have not seen the accused present there when reached at the spot nor he confessed before them that he has killed his wife after they quarreled with each other. The father of the accused, namely, Paramjit Singh, to the reasons best known to the prosecution, has not been produced in evidence. He could have stated something tangible about the relations of the accused and deceased and the quarrel, if having taken place between the two during the night ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 27 intervening 12/13.9.2014 and if they were quarrelling with each other prior to that also. No doubt, PW-1 Moti Lal admits his signatures on the statement Ext. PW-1/A, .
however, he has denied portion "A" to "A" thereof qua the so called confession made by the accused as according to him, no such statement was given by him to the police. Mere signature of PW-1 Moti Lal on the statement Ext. PW-1/A cannot be believed to conclude that accused Sahil had confessed his guilt before them and sought the help of PW-1 Moti Lal, PW-7 Kishori Lal and PW-19 Gurmukh Singh to save him from his prosecution. It is, therefore, not proved at all that the accused and deceased quarreled with each other and he killed her because she abused him which he could not tolerate. Since PW-1 Moti Lal, the complainant, PW-7 Kishori Lal and PW-19 Gurmukh Singh, all have denied the presence of the accused on the spot, therefore, on this score also, it would not be improper to conclude that he had no occasion to confess his guilt before them. Interestingly enough, as per the version of PW-3 Nirmal Rani, the mother of the deceased and PW-9 Ram Murti, her father on the information received about the death of their daughter, they also reached on the spot in the morning on 13.9.2014 itself, however, they both have also not stated that the accused was present there. In this view of the matter, though the plea of alibi taken by the accused in his statement recorded under Section 313 Cr.P.C. is a weak type of evidence and as ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 28 he has not produced any other and further evidence to substantiate the same, however, when the prosecution evidence itself does not speak about his presence on the .
spot, the plea of alibi he raised in his defence seems to be nearer to the factual position.
26. Otherwise also, as per the judgment of the apex Court in Sharad Birdhichand Sarda's case (supra), the prosecution must stand or fall on its own legs and should not derive any strength from the weakness, if any, in the defence of the accused. Therefore, when the prosecution itself has miserably failed to prove that the accused and deceased were together during that night and they quarreled with each other and it is thereafter the accused killed the deceased is not proved beyond all reasonable doubt, it is irrelevant that the plea of alibi raised by the accused is proved or not. In a case titled Dhanjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512, where the accused-wife had murdered her husband, the deceased, the apex Court has observed that irrespective of the fact that the deceased and accused were lastly seen residing together stand proved, it should not be taken to derive an irresistible inference that she alone is guilty of the offence because being legally wedded wife of the deceased, she was supposed to be with him in the matrimonial home where the crime was committed. This judgment reads as follows:
"12. A1, the betrayer wife of the deceased has been ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 29 convicted mainly on the ground of her being last seen with the deceased and her involvement in the commission of the crime on the basis of the confessional statement made by A4. The circumstance of A1 being last seen with the deceased, though proved, yet cannot lead to the .
irresistible inference of her being guilty of the crime, because being legally wedded wife of the deceased, she was supposed to be with him in his house where the crime was committed. This circumstance can be used against her only if there is any other circumstantial evidence linking her with the ghastly action committed in murdering the deceased."
27. The judgment of the Apex Court in Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 AIR SCW 5300, relied upon by learned trial Judge is not applicable in the case in hand as the husband and the deceased wife in that case as per the prosecution evidence were seen together shortly before the commission of crime in the dwelling home.
In the case in hand, the prosecution, however, has failed to prove that the deceased and accused immediately before the alleged occurrence were seen together in the residential premises during that night. The point in issue rather is covered in favour of the accused by the judgment of the Apex Court in Dhanjaya Reddy's case cited supra.
28. We are, therefore, of the firm view that circumstances No. 3 & 4 appearing in this case, if examined in the light of the legal principles enunciated by the Apex Court are not sufficient to arrive at a conclusion that it is the accused alone who committed the murder of the deceased, particularly when as per the evidence available on record ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 30 from all three sides, the premises of the factory where the accused and deceased were residing was accessible by strangers also. In the peculiar facts and circumstances of .
this case, someone else could have also planned to murder the deceased.
Circumstance No. 5.
29. The prosecution has relied upon the report Ext.
P-22 given by the Seriologist, Regional Forensic Science Laboratory, Dharamshala. On examination of the exhibits i.e. blood stained clothes etc. of the deceased and accused, the submissions are that the existence of blood stains on the shirt/kurta and Paijama of the accused proves his involvement in the commission of the offence. True it is that the report of the laboratory is admissible in evidence being part and parcel of the investigation conducted scientifically and the results received after subjecting the exhibits/ cutting preserved by the Investigating Officer during the course of investigation biologically and serologically, no doubt show that human blood was available on the kurta and pyjama of the accused, however, of which blood group, it was not sufficient for grouping. Nothing is there about age of such blood stains on his clothes. The blood group of the deceased was "A". Similar was the blood group of the accused also because result of analysis of their blood preserved for analysis show that this blood group was "A".
Anyhow, mere detection of the blood on the clothes of the ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 31 accused without there being any proof of its grouping, the accused cannot be connected with the commission of the offence. For want of evidence qua the age of blood stains, .
the possibility of the same was old one and blood oozed out on his clothes due to some other reason cannot be ruled out.
Therefore, the investigation conducted by the prosecution scientifically is also of no help to the prosecution case.
30. True it is that in the statement of the accused recorded under Section 313 Cr.P.C., nothing is there as to who has killed the deceased. He, rather has not said even a single word as to how his wife Trishla has died. However, according to him, during that night he was not in the home having gone to native village Thakarwal in Hoshiarpur District where he used to go to look after his agriculture land. We have already observed that even if it is presumed that the plea of alibi raised by the accused has not been proved, the prosecution cannot derive any benefit out of it because as per settled legal principles it has to stand on its own legs and cannot derive any benefit from the lacunae, if any, in the defence of the accused. As observed further since the prosecution has miserably failed to prove that the accused was very much present during that night in the home or in the morning seen by PW-1 Moti Lal, the complainant, PW-7 Kishori Lal and PW-19 Gurmukh Singh with them accompanied by Paramjit Singh, his father reached at the spot, it cannot be believed by any stretch of ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 32 imagination that the deceased quarreled with him and as she abused which he could not tolerate, hence killed her by way of strangulating her throat with dupatta (Ext. P-5).
.
Therefore, there is no substance in the arguments addressed that for want of evidence qua death of Trishla, it is the accused alone who has killed her.
31. The remaining prosecution witnesses are formal and their evidence at the most could have been used as link evidence had the prosecution otherwise been able to prove its case against the accused with the help of cogent and reliable evidence that it is he alone who had murdered his wife by throttling. Therefore, the elaboration of the link evidence as has come on record by way of testimony of formal witnesses would be nothing but to overload this judgment without there being any necessity to do so.
32. In view of the discussion hereinabove, we are satisfied that the present is a case of no evidence against the accused. Whatever evidence having come on record by way of statements of the interested witnesses i.e. PW-1 Moti Lal, PW-3 Nirmal Rani and PW-9 Ram Murty cannot be relied upon as they all being closely related with the deceased were interested in the success of the prosecution case. Learned trial Court has not appreciated the evidence available on record in its right perspective and to the contrary has recorded the findings of conviction against the accused on the basis of conjectures and surmises. Such an approach ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP 33 has certainly resulted in mis-carriage of justice to the accused. He has been convicted while placing reliance on highly inadmissible evidence. The impugned judgment as .
such is neither legally nor factually sustainable.
33. Consequently, this appeal succeeds and the same is accordingly allowed. The accused is acquitted of the charge under Section 302 IPC framed against him. The accused is serving out the sentence. He be set free forthwith, if not required in any other case. Registry to prepare the release warrants accordingly. The amount of fine, if already deposited, be refunded to the accused against proper receipt.
(Dharam Chand Chaudhary) Judge 15th May, 2019. (Chander Bhusan Barowalia) (M.gandhi-karan) Judge ::: Downloaded on - 20/05/2019 21:56:54 :::HCHP