Himachal Pradesh High Court
State Of Himachal Pradesh vs Om Dutt And Another on 10 August, 2016
Bench: Rajiv Sharma, Ajay Mohan Goel
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 4105 of 2013
.
Reserved on : 04.08.2016
Date of Decision 10.08.2016
______________________________________________________________________
State of Himachal Pradesh .....Appellant.
Vs.
Om Dutt and another .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. V.S. Chauhan, Additional Advocate
General.
For the respondents: Mr. Vishal Bindra, Advocate.
Ajay Mohan Goel, J. :
By way of present appeal, the State has challenged the judgment passed by the Court of learned Additional Sessions Judge, Sirmaur in Sessions Trial No. 5-N/7 of 2012 dated 29.12.2012 vide which, the accused have been acquitted for commission of offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.
2. Case of the prosecution was that on 14.10.2011, Anoop Sharma, President, Gram Panchayat Banah Dhini telephonically Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 2informed SHO, Police Station Pachhad that one dead body was lying in spine position in the forest near village Newly. On receipt of the said .
information, police party rushed to the spot. The dead body could not be identified, therefore, it was kept in the dead house at Civil Hospital, Sarahan. On 15.10.2011, PW-1 Shanti Swaroop identified the dead body to be that of his brother Lekh Raj. He submitted a written report that of deceased Lekh Raj, his brother was a driver by profession and on 24.09.0211, he had gone to Darlaghat and on 12.10.2011, he informed his mother that he would be coming home. One sim bearing No. rt 8894007466 was recovered from the pocket of the deceased. PW-1 suspected that accused No. 1 and Jeet Singh, father of accused No. 2 had murdered his brother and motive behind murder was that Lekh Raj had a love affair with accused No. 2 and at one point of time, he alongwith Rakesh Gautam and Anil Sharma had brought deceased Lekh Raj from the house of accused No. 2 and her father stated that Lekh Raj be advised that he should not come to his house otherwise he would be killed. On the basis of the said statement of PW-1, case was registered and investigation was carried out. During the course of investigation, post mortem of the dead body was also conducted and the accused were arrested. Further, as per the prosecution, during the course of investigation, the accused made disclosure statements, on the basis of which, inter alia the weapon of offence and clothes of the deceased were ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 3 recovered. As per the prosecution, the deceased was having a love affair with accused No. 2 and accused No. 2 had conceived from the loins of the .
deceased. She was insisting the deceased to marry her, but he refused to do so and in the meanwhile, she was engaged to accused No. 1.
Thereafter, accused hatched a conspiracy to eliminate Lekh Raj and in furtherance of the same, they murdered the deceased.
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3. After completion of the investigation, challan was presented before the Court and as a prima facie case was found against the accused, they were accordingly charged for commission of offences rt punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
4. In order to substantiate its case, the prosecution in all examined 34 witnesses.
5. Complainant Shanti Swaroo entered the witness box as PW-1 and stated that deceased was his elder brother, who was a driver by profession. On 29.09.2011, Lekh Raj went to village Darlaghat and on 12.10.2011, Lekh Raj informed him on telephone that he was coming home. On 14.10.2011, he came to know through police official Naresh that a dead body had been brought to hospital and one Sim No. 8894007466 was recovered. The aforesaid sim was his brother's. On suspicion, on 15.10.2011, he went to Sarahan hospital and found the dead body to be that of his brother. This witness further deposed that ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 4 there were injuries on the head of his brother. He further stated that deceased Lekh Raj was having a love affair with accused Promila for the .
last three years and the deceased used to visit the house of Jeet Singh (father of accused No. 2) frequently. He further deposed that about four months back, he, Rakesh Gautam and Anil Sharma, went to the house of Jeet Singh at village Mandi Khadana to bring back his brother, who was of in the house of Jeet Singh for last two days. Jeet Singh told them to advise the deceased otherwise he would be killed. PW-1 also stated that Promila was engaged with accused Om Dutt. He further stated that he rt had strong suspicion that Jeet Singh, accused Om Dutt and Promila had killed his brother. He further deposed that on 21.09.2011, Lekh Raj had brought one mobile phone, three Sims and two battries in red colour, in which reliance Sim No. 96258-10814 was used by him. He also stated that on 24.09.2011, Lekh Raj went to Sarahan alongnwith Parmeshwar on his motorcycle. In his cross-examination, he inter alia stated that he had seen accused Promila in the company of deceased Lekh Raj many times at Sarahan and in the house of father of accused Promila. He also stated that deceased was Brahmin by caste and accused Promila was Schedule Caste. He expressed his ignorance as to whether his brother was interested to marry accused Promila.
6. Dinesh Kumar entered the witness box as PW-2 and stated that he visited Civil Hospital, Sarahan on 15.10.2011 and identified the ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 5 dead body of Lekh Raj. There was injury on the head of deceased Lekh Raj. He also stated that brother of deceased was also present in the .
hospital. He also stated that he had visited Garzada Ki Khadi/Nala alongwith police.
7. Anup Sharma entered the witness box as PW-3 and stated that on 14.10.2011 at around 3:00 p.m., Dhanvir Singh of village Sirth of Sewly informed him on telephone that one person had been killed and he had been thrown in Garzala Nala and he passed on this information to police on telephone. He also stated that on 16.10.2011 at about 9:00 rt a.m., he alongwith police visited the spot and Dinesh also accompanied them.
8. Dhanvir Singh entered the witness box as PW-4 and stated that on 14.10.2011 at around 3:00 p.m., Kesar Bahadur had informed him that a person had been killed and thrown in Garzada-ki-Khali/Nala and he passed on the said information to Anup Sharma, President of Gram Panchayat, Banah Dhini. He also stated that he alongwith Kesar Bahadur and Lekh Raj reached the spot alongwith police at about 4:00 p.m. and found one person lying in the Nala, who had injury marks on his head and on the back portion. He also stated that no one identified the dead body on the spot. He also stated that personal search of the deceased was carried out and two sims were recovered from the pocket of deceased.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 69. Kesar Bahadur entered the witness box as PW-5 and stated that he was going to extract the resin from Garzada Sewly and found one .
dead body lying in Garzada Ka Nala. He further deposed that he went to village Sewly and passed on the said information to Madan Lal.
10. PW-6 Parmeshwar Sharma stated that he was owner of a mobile shop at Sarahan and on 23.09.2011, he had gone to the house of of Shanti Swaroop and on 24.09.2011, Lekh Raj came from Saroga Tikkar to Sarahan on his motorcycle. He also stated that Lekh Raj was a driver by profession and used to ply light vehicle at Sarahan. He also stated that rt Lekh Raj had a mobile phone of KENXINDA make. He also stated that Sunny told him on 15.10.2011 that Om Dutt had handed over mobile phone at Sarahan Bus Stand to him.
11. PW-7 Virender Singh stated that he was running a tea stall at new Bus Stand, Sarahan and accused Om Dutt was his class fellow. He further stated that on 14.10.2011, Om Dutt came to his shop at about 8:00 a.m. and after some time stated that he wanted to exchange his mobile set with that of the mobile set of PW-7. He further stated that they exchanged the mobile sets. This witness further deposed that on the next day, accused Om Dutt came to his shop in the morning and stated that mobile set which was given by him to Om Dutt was not functioning properly and in these circumstances, he again changed the mobile set. He further stated that on 20.10.2011, Kamal Kumar handed over one mobile ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 7 phone made in China having three sims and two batteries and Kamal told him that on 15.10.2011, accused Om Dutt had handed over his phone to .
Kamal at new Bus Stand Sarahan.
12. Santosh Thakur (PW-8) stated that his house was situated between villages Sewli and Mandi Khandana and on 13.10.2011 at about 4:00 p.m., he was working in his courtyard, when he saw accused of Promila going through katcha path adjacent to his house towards Sarahan.
13. PW-9 Ved Mittar stated that accused Promila Devi while in rt custody of the police made a disclosure statement in his and Jai Parkash's presence to the effect that she can get the spot of occurrence of the incident identified and thereafter she led them to Shyada Ghasni and identified the spot in their presence.
14. PW-10 Kamal Kumar did not support the case of the prosecution and he was declared a hostile witness. Though he had admitted that accused Om Dutt was his cousin, but he denied that he had handed over anything to the police. He denied the factum of mobile phone KENXINDA make having been handed over to him by Om Dutt.
15. PW-11 Rajender Singh stated that on 28.11.2011, he visited the spot Garzada Khala/Nala mauza Shirath Sewly alongwith police and other local persons and after inspecting the spot, he prepared the Aks Tatima Ex. PW11/A which was in his handwriting.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 816. PW-12 Virender Sharma deposed that he was a transporter at Darlaghat and he was owner of truck bearing registration No. HP11-B-
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0314 and in the year 2011, deceased was driver of his truck whose mobile number was 9625810814. He also stated that on 13.10.2011, Lekh Raj went to his house from Darlaghat after taking his permission.
He also deposed that on 15.10.2011, he came to know that Lekh Raj had of been murdered.
17. PW-13 Deep Chand Sharma stated that he remained as conductor with Lekh Raj on the truck and he also deposed that mobile rt number of deceased was 96258-10814. He also stated that Lekh Raj was having two three more sims.
18. PW-14 Dinesh Kumar stated that he was a driver by profession and on 13.10.2011, he was driver on truck/tipper of Babu Ram Shastri. He parked his vehicle near Devi hotel, Sarahan and had dinner in the vehicle. He further stated that at about 8/8:15 p.m., Lekh Raj deceased knocked the window of the truck from driver side and in the meantime, he received a call and he went towards Nahan road from Sarahan on foot.
19. PW-15 Mohar Singh deposed that he had purchased sim No. 96250-85010 of reliance company in April 2010. He became friendly with Lekh Raj and on the asking of Lekh Raj, he had given his sim to him on the assurance that he would return it back after 10/15 days when he ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 9 comes back again with truck to Ani. He further stated that thereafter Lekh Raj did not turn up nor did he return his sim.
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20. PW-16 Jai Parkash stated that he remained associated with the investigation of the case on 21.10.2011 and Promila Devi in his and Ved Mittar's presence made a disclosure statement to the effect that she can get the spot of occurrence of the incident identified ant thereafter she of led them to Shyada Ghasni and identified the spot in their presence.
21. PW-17 Rakesh Gautam deposed that he knew Lekh Raj and since 2009, the deceased was having a love affair with accused Promila rt Devi. This witness further deposed that he had advised Lekh Raj many times not to indulge in this and that if he wanted to marry Promila, then he should do it. He further stated that in the month of July, 2011, he received a telephone call from Promila at about 10/11 p.m. informing him that Lekh Raj had come to her house and that they should take him back. He further deposed that he alongwith Anil Sharma went to the house of accused Promila Devi and brought him back. He also stated that accused Promila told that deceased Lekh Raj was not marrying her and he should call the deceased from Darlaghat as she wants to marry him otherwise she would lodge a complaint with the police against him.
22. PW-18 Anil Sharma stated that he had seen Lekh Raj in the company of accused Promila Devi many times and they were having a ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 10 love affair. He also stated that he alongwith Rakesh Gautam went to the house of accused Promila Devi and brought back Lekh Ram from there.
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23. PW-19 Dr. Meena Mittal stated that she was posted as Medical Officer at Civil Hospital Sarahan since July, 2008 and on the request of police, she had examined Promila Devi. He stated that she issued MLC Ex. PW19/B. of
24. Dr. Manish Mittal entered the witness box as PW-20 and stated that he alongwith Dr. Pankaj Mohil conducted the post mortem of the dead body of deceased Lekh Raj. As per his opinion, the deceased rt died due to shock as a result of brain injury by blunt weapon. Copy of the post mortem report is Ex. PW20/A
25. PW-21 HC Rajesh Kumar stated that he was posted as MHC at Police Station Pachhad in 2011 and the case property was deposited in the Malkhana by HC Lal Singhon 17.10.2011, by SHO, Police Station Pachhad on 20.10.2011 and by ASI Lekh Raj on 01.12.2011, which were duly mentioned in the malakhana register at Sr. No. 191, 193 and 200 respectively.
26. PW-22 HHC Mohd. Iqrar stated that on 31.10.2011, HC Lal Singh handed over case property pertaining to the present case to him for depositing the same in SFSL, Junga for chemical examination. He took the entire case property alongwith sample seal to SFSL, Junga and deposited the same there. He obtained the receipt after depositing the ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 11 case property and handed over the same to MHC, Police Station Pachhad after reaching back to Police Station Pachhad.
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27. PW-23 LHC Naresh Kumar stated that on 14.10.2011, he was at village Dinger Kinner as he had gone to execute the summons, when SI/SHO intimated him on his mobile phone that one dead body had been found, from which one mobile phone was recovered. As per this of witness, SI/SHO further intimated him that as per record call of the phone of deceased, his name was Lekh Raj and he was driver in Darlaghat area. SI/SHO asked him to find out the whereabouts of rt deceased. This witness further deposed that one similar person also belongs to his village. He further deposed that thereafter he located telephone number of the brother of Lekh Raj and telephonically intimated him about the dead body found by SHO.
28. HHC Prem Singh entered the witness box as PW-24 and stated that on 15.10.2011 at about 4:00 p.m., SI/SHO Parbal Thakur handed over one written application for lodging of FIR and on the basis of the same, FIR No. 88 of 2011 was lodged.
29. PW-25 HHC Khem Raj deposed that on 14.10.2011, rapat No. 20 was lodged by him, on the basis of which, SI/SHO Parbal Singh Thakur alongwith other official proceeded to the spot from where the intimation qua dead body was received at Police Station Pachhad.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 1230. ASI Chet Ram Thakur entered the witness box as PW-26 and stated that he had arrested accused Promila Devi, who while in custody .
on 21.10.2011 had made a disclosure statement Ex. PW9/A in the present of Ved Mittar and Jai Parkash to the effect that she can get the place identified where she was sitting in Shayada Ghasni (forest). He further deposed that thereafter accused led them to the spot and PW-26 of prepared a memo to this effect Ex. PW9/B as well as site map of the spot Ex. PW26/A.
31. Dr. Pankaj Gaur entered the witness box as PW-27 and rt stated that he remained as Medical Officer at R.H. Nahan from 2008 till May, 2012. On 26.11.2011, he was on emergency duty in the hospital and at about 6:35 p.m., accused Promila aborted during his duty. Fetus was about 4 to 5 months duration and Promila was in healthy condition after abortion. He further deposed that on 27.11.2011 at about 9:30 a.m. when he was again on emergency duty, police moved an application for medical examination and to preserve the blood sample and necessary part of the fetus for DNA profiling. He also stated that sine the duration between the time of operation and application for DNA analysis was about 15 hours and the fetus was shriveled and it demanded expert management, so he preserved the fetus in a jar and sealed it in a cloth parcel with seal of RH Nahan. He handed over the sealed parcel alongwith ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 13 sample of seal to police and referred the sealed fetus parcel alonwith mother Promila to IGMC, Shimla for forensic expert management.
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32. Lekh Raj entered the witness box as PW-28 and stated that he was Up Pradhan of Gram Panchayat, Banah Dhinni sine 2011 and remained associated in the investigation of the case with the polcice. He deposed that on 14.10.2011, he visited the spot with Kesar Bahadur, of Dhanvir Singh police. He also deposed that on the spot, a dead body was found with injuries on the body as well as head. He also deposed that blood stains were found all over Ghasani and nobody had identified the rt dead body of the deceased. He also stated that police searched the dead body which led to the recovery of two sims. He also stated that accused Om Dutt led them to his village Matahan and he produced one Dhanoti, i.e., hammer on which OM was embossed. It is pertinent to note that this witness did not support the case of the prosecution and he was declared as a hostile witness. He stated that accused Om Dutt did not make any statement in his presence while in custody in Police Station.
33. PW-29 Layak Ram also did not support the case of the prosecution and denied the fact that accused Om Dutt has made any statement in his presence while in police custody. He was also declared as a hostile witness by the prosecution.
34. Dr. Piyush Kapila entered the witness box as PW-30 and stated about the factum of taking samples of blood from the fetus as well ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 14 as accused Promila Devi on FTA cards separately. He also stated that he handed over two FTA cards, one of fetus and other of Promila Devi in two .
separate parcels sealed with seal DKG.
35. ASI Lekh Raj entered the witness box as PW-31. He stated that on 22.11.2011, SHO Parbal Singh had directed him to visit RH Nahan and he also handed over to him application Ex. PW31/A of addressed to M.O. R.H. Nahan with a request to preserve the blood samples and other necessary parts of fetus of Promila Devi accused, who had aborted for DNA profiling. He specifically deposed about handing over rt of said application to concerned officer. He also stated that Medical Officer Pankah Gaur R.H. Nahan handed over one parcel sealed with seal of RH Nahan containing preserved dry fetus of Promila, which he deposited at IGMC, Shimla. He also stated that Dr. Piyush Kapila, IGMC Shimla after taking the FTA Cards handed over to him two parcels sealed with three seals of DKG on each parcel stated to be containing FTA Cards of Promila Devi and her fetus.
36. SI Parbal Singh entered the witness box as PW-32 and he deposed at length about the factum of his having received a telephonic information on 14.10.2011 from Anup Sharma regarding unclaimed dead body having been noticed near village Deyuli in the forest and the actions thereafter taken by him on receipt of the said information. In his cross-
examination, this witness stated that during investigation, he found that ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 15 there was a love affair between accused Promila and deceased Lekh Raj for the last three years and they were from different caste. Promila Devi .
was pregnant and she was pressuring deceased Lekh Raj to marry with her, but Lekh Raj refused to marry her because of caste difference. He also deposed that in the meantime, accused Promila was engaged with Om Dutt and both the accused after planning called the deceased and of accused Om Dutt killed deceased Lekh Raj with the help of hammer and the dead body was concealed in a Nala and the accused fled away from the spot. rt
37. HC Lal Singh entered the witness box as PW-33 and stated about the deposition of the case property with MHC at Police Station Pachhad.
38. Naseeb Singh Patiyal, Scientific Officer, SFSL Junga entered the witness box as PW-34 and stated that he had received three sealed parcels in Physics and Ballistics Division through MHC Mohd. Iqrar on 31.10.2011. He also stated that the aforesaid exhibits were examined physically, chemically, microscopically and by using X-ray Fluorescence spectroscopy in the laborarory, on the basis of which, he submitted his results.
39. These were the witnesses produced by the prosecution in the witness box before the learned trial Court in order to substantiate its case against the accused.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 1640. On the basis of the evidence produced by the prosecution before the learned trial Court, both ocular as well as documentary, .
learned trial Court held that as there was no eye witness of the alleged offence committed by the accused and the case being of circumstantial evidence, the chain of circumstance was missing so as to establish that it was only accused persons who had committed the murder of deceased.
of On these basis, learned trial Court held that the prosecution had not been able to establish the charges against the accused beyond shadow of doubt and accordingly, it acquitted the accused of charges under rt Sections 302, 201 read with Section 34 of the Indian Penal Code.
41. Learned Additional Advocate General has submitted that the learned trial Court has erred in acquitting the accused of the offence with which they were charged. According to him, in the present case, on the basis of material produced on record, the prosecution has substantiated beyond any reasonable doubt that the deceased had in fact been murdered by the accused as a result of criminal conspiracy hatched by them. Accordingly, he submitted that the judgment passed by learned trial Court was perverse and should be set aside.
42. Mr. Vishal Bindra, learned counsel for the respondent argued that there was no merit in the appeal filed by the State and in fact the learned trial Court on the basis of the material produced before it by the prosecution had correctly concluded that the prosecution had miserably ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 17 failed to prove its case that the deceased was murdered by the accused.
According to the learned counsel for the respondent, there was no eye .
witness who had seen the commission of the alleged offence. Thus, it being a case of circumstantial evidence, the onus was very high upon the prosecution to have had proved all the links and circumstances connecting the accused with the commission of the alleged offence. In the of present case, as the prosecution failed to establish on record by way of circumstantial evidence that the alleged offence had been committed by the accused, therefore, learned trial Court had rightly acquitted the rt accused of the offence alleged against them. Thus, learned counsel for the respondents submitted that the judgment passed by the learned trial Court warranted no interference and the appeal being without any merit be dismissed.
43. We have heard the learned counsel for the parties and also gone through the records of the case.
44. This being a case of circumstantial evidence as there is no eye witness who has seen the deceased being allegedly murdered by the accused, therefore, this Court has to evaluate and adjudicate as to whether by way of circumstantial evidence, the prosecution has been able to link the accused with the commission of offence.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 1845. During the course of arguments, learned Additional Advocate General has culled out the following circumstances connecting the .
accused with the commission of the offence:
"1. Love affair between deceased and accused No. 2.
2. Discovery of dead body.
3. Motive.
4. Disclosure statements.
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46. At this stage, it is relevant to take note of the judgment of the Honble Supreme Court on circumstantial evidence in Vijay Thakur Vs. rt State of Himachal Pradesh, (2014) 14 Supreme Court Cases 609, relevant paras of which are quoted below:
"18. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses.
Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 19 incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
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19. In Mani v. State of Tamil Nadu, (2008) 1 SCR 228, this Court made following pertinent observation on this very aspect:
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon on and of conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would rt support the prosecution case...."
20. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof.
We are of the opinion that the present is in fact a case of no evidence."
21. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 20 Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the .
appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The of circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
rt
(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 accused."::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 21
47. Thus, the salient points which have been carved out by the Hon'ble Supreme Court in the case of circumstantial evidence, on the .
basis of which the guilt of the accused can be brought home are as under:
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
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(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 rt 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) Thee 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."
48. The Hon'ble Supreme Court in Sangili alias Sanganathan Vs. State of Tamil Nadu, (2014) 10 Supreme Court Cases 264 has held as under:
"15. To sum up what is discussed above, it is a case of blind murder. There are no eyewitnesses.::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 22
Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be .
established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. In the present case, we find, in the first instance, that the appellant was roped in with suspicion that it was a case of triangular love of and since he also loved PW-3, he eliminated the deceased when he found that the deceased and PW-3 are in love with each other. However, we are of the view rt that this motive has not been proved. The evidence of last seen is also not established. Father of the deceased only said that the deceased had received a call and after receiving that call he left the house. In his deposition, he admitted that he had not seen the appellant before and he did not recognize his voice either. Therefore, he was unable to say as to whether the phone call received was that of the appellant.
Proceeding further, we find that the deceased was not seen by anybody after he left the house. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
16. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273, this Court made following pertinent observation on this very aspect:::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 23
"26. The discovery is a weak kind of evidence and cannot be wholly relied upon .
and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...."
There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, of (2011) 14 SCC 117 in the following manner:
"6. It is by now well settled that in a case relating to circumstantial evidence the chain of rt circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."
17. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, this Court observed as under:
"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) "(i) The circumstances from which ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 24 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;
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(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 rt 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."
49. Hon'ble Supreme Court in Ram Sunder Sen Vs. Narender @ Bode Singh Patel, (2014) 10 Supreme Court Cases 264 has held as under:
"15. The present case is, thus, based purely on circumstantial evidence. It is a settled law that when prosecution relies on circumstantial evidence, the following tests to be clearly established:
(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogent and firm;::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 25
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt .
of the accused;
(iii) 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 of
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of rt 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."
50. Where a case rests upon circumstantial evidence, such evidence in order to base conviction, must be complete and incapable of explanation of any other hypothesis than that of 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.
51. In these circumstances because it is a case of circumstantial evidence, this Court has to satisfy its judicial conscience as to whether by way of circumstantial evidence produced on record by the prosecution, it has been able to link the commission of the offence with the accused or not.
::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 2652. Now, we will apply the above salient features to the facts of the present case in order to ascertain as to whether there is any infirmity .
or perversity with the judgment passed by the learned trial Court in the present case.
53. We will test all the circumstances vis-à-vis material produced on record regarding each circumstance by the State separately.
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1. Love affair between deceased and accused No. 2:
54. In order to prove this circumstance, learned Additional rt Advocate General has submitted that the factum of there being a love affair between the deceased and the accused No. 2 was proved from the testimonies of PW-1 Shanti Swaroop, PW-17 Rakesh Gautam and PW-18 Amit Sharma. We have perused the statements of these three witnesses.
PW-1 Shanti Swaroop brother of the deceased stated that there was a love affair between deceased Lekh Raj and Promila for the last three years. He also stated that his brother used to visit the house of father of accused No. 2 frequently. He also stated that about four months back, he alongwith Rakesh Gautam and Anil Sharma had gone to the house of Jeet Singh at Village Manndi Khandana and brought back deceased and at that relevant time, Jeet Singh had told them to advise their brother Lekh Raj otherwise he would be killed. At this stage, it is relevant to take note of the fact that PW-1 Shanti Swaroop had expressed his ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 27 apprehension that his brother was killed by Jeet Singh and the accused.
However, it is a matter of record that Jeet Singh has not been arrayed as .
one of the accused. In his cross-examination, this witness has stated that their caste was Brahamin whereas Promila Devi belonged to Scheduled Caste. He expressed his ignorance whether his brother was interested in marrying with Promila or not. He admitted that Promila had lodged a of complaint in Police Station against his brother Lekh Raj, but he was not aware as to what the complaint was about. He also stated that the engagement of the accused was not performed in his presence.
rt
55. PW-17 Rakesh Gautam stated that he was a driver by profession and the deceased was known to him. He stated that since 2009, deceased was having a love affair with accused No. 2 and he had advised Lekh Raj many times not to indulge in this and if he wants to marry Promila, then he should do it. He also stated that he and Anil Sharma had gone to the house of accused Promilar and brought back the deceased from the house of accused No. 2. He also stated that accused Promila told him that deceased was not marrying him and if he does not marry her, then she will lodge a complaint with the police.
56. PW-18 Anil Sharma also deposed to this effect that there was a love affair between the deceased and accused No. 2 Promila and he had gone to the house of Promila alongwith Rakesh Gautam to bring back deceased. In his cross-examination, this witness denied that there was no ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 28 love affair between the deceased and Promila and he admitted that father of Promila was a good friend of Lekh Raj. This is the evidence produced .
on record by the prosecution in order to prove the circumstance that there was a love affair between deceased and accused No. 2. However, from this circumstance, no inference can be drawn to the effect that the deceased had been actually killed by the accused.
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2. Recovery of dead body:
57. This circumstance, as per the prosecution, has been proved rt by PW-1 Shanti Swaroop, PW-3 Anup Sharma, PW-4 Dhanvir Singh and PW-5 Kesar Bahadur.
58. In our considered view, the factum of discovery of the dead body of the deceased in the mode and manner as has been put forth by the prosecution is a matter of record. It is also the case of the prosecution that the dead body borne injury marks and this is also evident from the post mortem of the dead body which is on record as Ex. PW20/A. It is further clear from the evidence placed on record by the prosecution that after dead body of the deceased was recovered, Anup Kumar (PW-3) telephonically brought this fact into the notice of Police Station. It is also evident from the records that when the dead body was recovered, the same could not be identified. One mobile and a few sim cards were recovered from the dead body of the deceased, which led to the ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 29 identification of the dead body, which ultimately was identified by his brother PW-1 Shanti Swaroop.
.
59. In our considered view, the factum of the recovery of the dead body of deceased Lekh Raj alone cannot be made a circumstance to nail the guilt of the accused because none of the witnesses on the basis of whose testimonies the factum of the discovery of dead body has been of proved by the prosecution have stated that they either saw the accused with the deceased before his death or that they had seen the accused murdering the deceased.
rt
3. Motive:
60. According to the prosecution, the accused were having motive to do away with the deceased because the deceased was having love affair with accused No. 2 and accused No. 2 was pregnant from the loins of deceased, however, deceased refused to marry the accused because of caste difference. In the meanwhile, accused No. 2 was engaged to accused No. 1 and both the said accused hatched a conspiracy to do away with the deceased and resultantly, the deceased was killed by the accused. Thus, according to the prosecution, there was a very strong motive with the accused to do away with the deceased.
61. In our considered view, there is no merit in this contention of the prosecution. It is evident from the records of the case that blood sample of the fetus of Promila as well as that of Promila and accused No. ::: Downloaded on - 15/04/2017 21:00:23 :::HCHP 30 1 were taken during the course of investigation by the police. It is a matter of record that when the case was registered against the accused, .
she was pregnant. However, during the investigation of the case, the said fetus of accused No. 2 was aborted in R.H. Nahan. It is also a matter of record that samples were taken of both the accused persons as well as from the fetus aborted and the blood samples were got analysed from of SFSL, Junga. It is relevant to refer to the result of DNA profile of fetus of accused No. 2 and accused No. 1 as well as that of the deceased, which is Ex. PW32/Z/9. The conclusions given in report Ex. PW32/Z/9 are rt reproduced hereinbelow:
"(i) DNA profile obtained from Exhibit-1 (bloodstained stones taken in possession from the spot), Exhibit-2 (bloodstained soil and grass taken into possession from the spot), Exhibit-11d (Vest-
Lekh Raj), Exhibit-11c (shirt-Lekh Raj), Exhibit- 12b(Vest of Om Dutt) matches completely with the DNA profile obtained from Exhibit-10(blood sample of deceased Lekh Raj)
(ii) The partial DNA profile obtained from Exhibit- 12c (T shirt of Om Dutt) is consistent with the DNA profile obtained from Exhibit-10 (blood sample of deceased Lekh Raj).
(iii) Exhibit-3 (bloodstained stones and soil taken in possession from the spot) and Exhibit-5 (Hammer produced by accused) yielded highly degraded DNA from which no DNA profile could be generated.
::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 31(iv) Promila Tomar (source of exhibit-1-1 Blood sample of Promila Tomar on FTA card) is the .
biological mother of dead fetus (source of Exhibit-2-2 & Exhibit-3-3-blood sample of dead fetus of accused Promila Tomar on FTA & femur of fotus).
(v) Mr. Om Dutt (source of Exhibit-13-Blood sample of Om Dutt) is the biological father of dead fetus (source of Exhibit-2-2 & Exhibit-3-3-blood sample of of dead fetus of accused Promila Tomar on FTA & femur of fetus.)"
62. rt It is evident from the perusal of the blood sample of accused No. 2 that she was biological mother of dead fetus. Similarly, it is also evident from the perusal of material on record that accused No. 1 Om Dutt is the biological father of dead fetus. In fact, this aspect of the matter has also been gone into in detail by learned trial Court and the findings recorded to this effect by learned trial Court are quoted hereinbelow:
"18. Its perusal shows that blood sample of accused No. 2 shows that she is the biological mother of dead fetus and blood sample of dead feutus of accused No. 2 on FTA & femur of fetus. Accused No. 1, Om Dutt (source of Exbibit-13), blood sample of accused No. 1 is the biological father of dead fetus, source of Exhibit-2-2 and Exhibit-3-3-blood sample of dead fetus of accused No. 2 on FTa and femur of fetus. Thus this conception that dead fetus of accused No. 1 was the biological ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 32 father and accused No.2 was the biological mother. Deceased Lekh Raj was not the biological father of .
fetus. In the situation when the Investigating Agency had concluded that the motive of the crime was that accused No. 2 had conceived a child from the loins of deceased Lekh Raj and thereby hatched up a conspiracy with accused No. 1 with whom she was engaged, they have culminated Lekh Raj falls to of ground. But the conception was that of accused No. 1 and not that of deceased Lekh Raj. Thus, the motive not established for fastening the criminal liability, but it had rt some part in the situation when the accused had no enmity with the deceased Lekh Raj and the only cause was his conception in the womb of accused No. 2, bit it is falsified on record with the report of FSL. Thus, the findings of the Investigating Agency does not corroborate with the subsequent document i.e., report dated 28.04.2012 produced in the Court file. The investigation conducted is not above board one as concrete finding had been recorded and it had become final over their own document i.e., report Ex.
PW32/Z/9."
63. We have carefully perused the records of the case and according to us, the findings so recorded by learned trial Court are not perverse and in fact are borne out from the records of the case. From this, it is evidently clear that the case built up by the prosecution to the effect that the motive behind the murder of the deceased was the fact that ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 33 accused No. 2 was pregnant from the deceased and as he had refused to marry her accordingly after the engagement of accused No. 2 with .
accused No. 1, both of them hatched a conspiracy to do away with the deceased, is totally misplaced. Therefore, the prosecution has not been able to prove this link against the accused and the chain of circumstantial evidence stands broken.
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4. Disclosure statements:
64. As per the prosecution, while in custody accused No. 1 made a disclosure statement which is Ex. PW28/J and accused No. 2 has made rt two disclosure statements under Section 27 of the Indian Evidence Act, which are on record as Ex. PW9/A and Ex. PW9/B.
65. Disclosure statement allegedly made by accused Ex. PW28/J is dated 20.10.2011. This statement is purported to have been made in front of Lekh Raj and Layak Ram. Accused No. 1 in this disclosure statement has stated that he can get the weapon of offence (Dhanoti) recovered alongwith the cloths of the deceased and other articles.
66. Lekh Raj entered the witness box as PW-28 and Layak Ram entered the witness box as PW-29. Incidentally, PW-28 and PW-29, who as per the prosecution are the witnesses in front of whom accused No. 1 had made the disclosure statement, but they have not supported the case of the prosecution. Lekh Raj denied that any disclosure statement was made by Om Dutt in Police Station Pachhad. Similarly, Layak Ram (PW-::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 34
29) has stated that he does not remember what accused disclosed to the police at Police Station Pachhad. Recovery memo of hammer and clothes .
are Ex. PW28/A, Ex. PW28/E and Ex. PW28/F. Both PW-28 and PW-29 have not corroborated the case of the prosecution with regard to the recovery of hammer and clothes of the deceased in the mode and manner in which the prosecution wants this Court to believe it.
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67. Therefore, in our considered view, keeping in view the fact that both these witnesses have not corroborated the case of the prosecution, it cannot be said beyond reasonable doubt that on the basis rt of a disclosure statement made by accused No. 1, recovery of the their weapon of offence and clothes of the deceased was made by the prosecution in the mode and manner as has been put forth by it.
68. Now, we will refer to the disclosure statements allegedly made by accused No. 2. According to the prosecution, accused No. 2 had made two disclosure statements Ex. PW9A and Ex. PW9/B. As per these disclosure statements, the same were made in the presence of Ved Mittar and Jai Parkash to the effect that she can get the spot identified where she had sat in Shayada Ghasani/jungle on 13.10.2011 around 6-7 p.m. after leaving her house. Ved Mittar and Jai Parkash have entered the witness box as PW-9 and PW-16, respectively. They have not satisfactorily explained as to what they were doing in the Police Station on 21.10.2011 when allegedly the disclosure statement was made by accused No. 2 in ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 35 their presence. Further, both Ved Mittar and Jai Parkash have stated that deceased Lekh Raj was known to them, meaning thereby that they were .
not independent witnesses. Not only this, it has come in the statement of PW-9 Ved Mittar that Jai Parkash was known to him for the last four years. In these circumstances, in our considered view, much credence and weightage cannot be given to the testimonies of these two witnesses, of whose statements do not inspire the confidence of the Court.
69. Therefore, in our considered view, in view of what has been discussed above, this circumstance has also not been proved by the rt prosecution against the accused.
70. There is one more interesting aspect of the matter which has come in the statement of Investigating Officer (PW-32). According to him, deceased Lekh Raj was in possession of two sims, one of which belonged to Mohar Singh, R/o Aut, District Mandi and another sim belonged to a girlfriend of Lekh Raj, who was resident of Rampur Bushehr. The deceased was maintaining relationship of man and woman with said girl at Rampur, who had given him sim No. 96250-85010. All these aspects of the matter create a suspicion that there may be other persons involved in the murder of the deceased. Further, a perusal of the judgment passed by learned trial Court will demonstrate that it has at length discussed the entire material produced on record by the prosecution and after detailed ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 36 discussion of the same, it has returned the finding of acquittal in favour of the accused.
.
71. We have also carefully gone through the entire evidence produced on record by the prosecution and in our considered view, it cannot be said that the findings returned by the learned trial Court are either perverse or not based on the material produced on record by the of prosecution.
72. The circumstances on which learned Additional Advocate General relied upon to bring home the guilt of the accused had already rt been discussed by us in detail above and according to us, the prosecution has not been able to prove said circumstances against the accused beyond reasonable doubt so as to bring home the guilt of the accused.
73. It is settled law that prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.
Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 Supreme Court Cases 116 has held:
"152 Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 37 followed and applied by this Court in a large number of later decisions uptodate, for instance, .
the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases of where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in rt 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 far 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."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 38(1) the circumstances from which the conclusion of guilt is to be drawn should be fully .
established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal of distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following rt observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 39 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
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74. Hon'ble Supreme Court in Musheer Khan alias Badshah Khan and another Vs. State of Madhya Pradesh (2010) 2 Supreme rt Court Cases 748 has held:
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible".
However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 40 hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the .
air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis of any legal inference rt from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. {See Raghav Prapanna Tripathi and others vs. State of U.P. - AIR 1963 SC 74}.
42. 50. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. {See: State of UP vs. Ravindra Prakash Mittal, 1992 Crl.L.J 3693(SC) - (Para 20). 43 While appreciating circumstantial evidence, we must remember the principle laid down inAshraf Ali vs. Emperor - (43 Indian Cases ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 41 241 at para 14) that when in a criminal case there is conflict between presumption of innocence and .
any other presumption, the former must prevail.
44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and is incapable of explanation upon any other of reasonable hypothesis except his guilt.
45. When a murder charge is to be proved solely on circumstantial rt evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy vs. King Emperor - (11 CWN 1085) it was held the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
::: Downloaded on - 15/04/2017 21:00:24 :::HCHP 4275. We reiterate that suspicion no matter howsoever strong cannot be a substitute of proof. In the present case, there is no cogent .
and reliable proof on record that the respondents are guilty of offence under Sections 302, 201 read with Section 34 of the Indian Penal Code.
76. In view of what we have stated above, we do not find any infirmity with the judgment which has been passed by the learned trial of Court acquitting the accused of the charges levelled against them. It cannot be said that the judgment passed by the learned trial Court is either perverse or that the prosecution had proved its case beyond rt reasonable doubt against the accused, but the learned trial Court has acquitted them. According to us, the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the judgment passed by the learned trial Court is up-held by us and the present appeal is accordingly dismissed being devoid any merit.
(Rajiv Sharma) Judge (Ajay Mohan Goel) Judge August 10, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:00:24 :::HCHP