Himachal Pradesh High Court
Om Prakash vs State Of Himachal Pradesh on 18 March, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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Cr. Appeal No. 201 of 2009-B
Judgment reserved on : 3.3.2015
Date of Decision : March 18 , 2015
Om Prakash ... Appellant
Versus
State of Himachal Pradesh
r ... Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice, P. S. Rana, Judge.
Whether approved for reporting? Yes. 1
For the appellant : Mr. Nareshwar Singh Chandel, Advocate, as
amicus curiae, for the appellant.
For the respondent : Mr. Ashok Chaudhary and Mr. V. S. Chauhan,
Addl. Advocate Generals and Mr. Vikram
Thakur, Dy. A.G. for the respondent-State.
Sanjay Karol, J.
Convict Om Prakash has assailed the judgment dated 27.5.2009/29.5.2009, passed by learned Sessions Judge, Solan, H.P., in Case No. 1-S/7 of 2008, titled as State of Himachal Pradesh vs. Om Prakash, whereby he stands Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 2convicted and sentenced to undergo rigorous imprisonment for life and pay fine of `5,000/- in relation to an offence .
punishable under the provisions of Section 302 of the Indian Penal Code and in default thereof, to further undergo imprisonment for a period of one year.
2. It is the case of prosecution that on 22.3.2008 at about 10.00 a.m., Sh. Om Parkash (PW-4) spotted dead body of a female lying on a public road, passing through his land (ghaasni), at Serighat near Kunihar, District Solan, H.P. Om Prakash informed his cousin Sh. Roop Ram (PW-2) who in turn, told Pradhan of the area Sh. Govind Ram Bhardwaj (PW-3). Telephonically Pradhan gave such information to the police at Police Post Sairi. At about 12.15 p.m., HC-Prem Lal (not examined) telephonically informed Police Station Kandaghat, where entry in the Daily Diary Register (Ext.PW-
28/A) was recorded. For the investigation, Station House Officer, Inspector Liaq Ram (PW-28) reached the spot. He sent Ruka (Ext. PW-25/A) on the basis of which F.I.R. No. 34/2008, dated 22.3.2008 (Ext. PW-25/C) was registered at Police Station Kandaghat, Distt. Solan, H.P., under the provisions of Section 302 of the Indian Penal Code. On the spot, he prepared inquest reports (Ext. PW-5/B and 5/C) in the presence of independent witnesses Sh. Om Parkash (not ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 3 examined - another person by same name) and Sh. Rajesh Kumar (PW-5). Photographs of the deceased (Ext. PW-28/A1 .
to A16) were taken and site plan (Ext. PW-28/B) prepared.
The dead body was searched by a Lady Constable Meera Thakur (PW-1), in the presence of independent witness Smt. Sheela Devi (not examined). Sandals of the deceased, a used condom and a bill (cash memo) lying near the body were taken into possession vide memo (Ext. PW-5/A). The dead body was sent for post mortem which was conducted by Dr. Piyush Kapila (PW-19) who issued Post Mortem Report (Ext. PW-19/A). Since identity of the deceased could not be ascertained by the police, her photograph was published in the newspaper which was widely circulated in the area. Investigation revealed that one Sh. Tulsi Ram resident of Anji Jabbal (not examined), in Kunihar area, had four daughters some of whom lived in Punjab/Nalagarh area and as such, on 25.3.2008 Constables Narender, Ravinder and Nagender Singh (all not examined), went to his house with the cutting of the news paper but none from the family could identify the dead body. However, police took some of his family members for identification of the dead body, which was kept in the mortuary of Indira Gandhi Medical College and Hospital at Shimla. Sh. Charan Dass (PW-6) ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 4 and Ram Parkash (not examined) identified the body to be that of their sister Sushila (hereinafter referred to as the .
deceased), vide memo (Ext. PW-3/A). After completing the necessary formalities, body was handed over to the family vide memo (Ext. PW-3/B). On the asking of Inspector Liaq Ram (PW-28), on 26th March, 2008 ASI Gulab Singh (PW-30) went to Baddi where investigation revealed that the accused and the deceased who were gainfully employed in separate organizations, were living together, in a tenanted accommodation of Sh. Mahinder Singh (PW-8). Investigation further revealed that the accused and the deceased, though closely related, being first cousins from mother's side, were having illicit relationship with each other. Also they would often quarrel with each other. It further came to the notice of police that on 21st March, 2008, both the accused and the deceased took half day leave whereafter accused took the deceased on his scooter (two wheeler) towards Kunihar. On the way at about 6 - 6.30 p.m. they stopped in the shop of Sh. Ranbir Singh (PW-14) and in the presence of Sh.
Devinder Kumar (PW-17) had samosa & chana. Thereafter, at Kunihar bazaar they went to the shop of Sh. Ramesh Chand (PW-15) from where deceased purchased cloth material (suits). From there accused took the deceased to ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 5 an isolated place where they quarrelled. Also accused fell from the scooter as a result of which he sustained injuries.
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Soon thereafter, he murdered her by strangulating with a chunni (Ext. P-12). Accused who was arrested on 26.3.2008, was got medically examined at Civil Hospital Kandaghat.
Dr.M.P. Singh (PW-23) issued MLC (Ext. PW-23/B) dated 28.3.2008. Only on 29.3.2008 accused made disclosure statement (Ext. PW-13/A), in the presence of Sh. Kailash Chand (PW-13), to the effect that he could get recovered chunni (Ext. P-12) which he had hidden under the culvert at a distance of two and a half - three kilometers from Serighat. Pursuant thereto, accused got it recovered in the presence of independent witnesses Sh. Jagat Ram (PW-12) and Sh. Bheema Nand (not examined) vide memo (Ext. PW-
12/A). Police also took into possession record pertaining to the leave of both the deceased and the accused from their respective employers. Also suits which the deceased had purchased at Kunihar were recovered from the mother of the accused. Miss Seema (PW-20) found one gold earring (jhumka) belonging to the deceased and gave it to her uncle Sh. Vasudev (not examined), who in turn handed it over to the police. Other ear ring was recovered from the possession of mother (not examined) of the accused in the ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 6 presence of witnesses HHC-Rakesh Chand (PW-16) and Sh.
Kailash Chand (PW-13). Investigation revealed complicity of .
the accused in the alleged crime. As such, challan was presented in the Court for trial.
3. Accused was charged for having committed an offence punishable under the provisions of Sections 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial. r
4. In order to establish its case, prosecution examined as many as thirty witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of false implication. Accused examined two witnesses in defence for establishing the fact that the place of recovery of dead body was neither en route, nor closer to the native villages of the accused and/or the deceased.
5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal.
6. It is not in dispute that there is no eye witness to the incident. Prosecution case solely rests upon the ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 7 following circumstances so culled out by the trial Court.
Here also they are pressed with vehemence.
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"1. The deceased had died an unnatural death she having been died due to asphyxia on account of strangulation.
2. The accused and deceased were living together in one room and had developed illicit relations and used to quarrel on account of suspicion about the character of each other.
3. Leaving the room together on 21.3.2008 for going to the house of the deceased as they had been doing so usually on holidays and both of them availing half day leave that day.
4. Last seen together at Kunihar.
5. Recovery of clothes from the mother of the accused which the deceased had purchased for her family members.
6. Recovery of one piece of the pair of ear drop of the deceased from the brother of the accused.
7. Disclosure statement made by the accused regarding identification of the place and the place where he threw the chunni of the deceased used by him for strangulating the deceased and subsequent discovery thereof from the said place.
8. Sustaining of injury by the accused which correspond in proximity in time with the alleged occurrence and false explanation thereof and thereby denying the established circumstances.
9. Behaviour and conduct of the accused."
7. We have heard Mr. Nareshwar Singh Chandel, learned Amicus Curiae on behalf of the convict as also Mr. ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 8 Ashok Chaudhary, learned Addl. Advocate General assisted by Mr. V. S. Chauhan, learned Addl. A.G. and Mr. Vikram .
Thakur, learned Dy. A.G. on behalf of the State on each of the circumstances and have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution.
8. Having done so, and for the reasons assigned hereinafter, we are constrained to hold that the reasoning adopted and the findings returned by the trial Court are not based on correct and complete appreciation of testimonies of the witnesses. Findings are not based on legally admissible evidence. Court presumed existence of certain facts. The question of truthfulness and veracity of the testimonies; creditworthiness and reliability of the witnesses, was required to be gone into while dissecting the evidence. Without even holding the prosecution to have established its case by leading clear, cogent and firm evidence, pointing only to the guilt of the accused and that the evidence is incapable of explanation of any other hypothesis, except for and only consistent with his guilt and not inconsistent with his innocence, trial Court proceeded to hold him guilty. The inescapable conclusion from the cumulative appreciation of the circumstances, in our ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 9 considered view, does not complete the chain of evidence resulting into the only conclusion, that within all human .
probability, crime was committed by the accused and none else. Judgment in question is not based on correct and complete appreciation of evidence and the material placed on record, causing serious prejudice to the accused, also resulting into grave miscarriage of justice.
9. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to an accused.
10. Before we deal with each of the circumstances, we must take note of certain undisputed facts. That the accused and the deceased, being first cousins, were living together in the same rented accommodation at Baddi, where they were working in separate commercial establishments is not in dispute. That since the afternoon of 21.3.2008 deceased was not to be found, is also not disputed. That deceased died an unnatural death also cannot be disputed. There is no eye witness to the incident.
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 1011. From the testimony of Dr. Piyush Kapila (PW-19), who conducted the post mortem and submitted report (Ext.
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PW-19/A), following injuries were found on the body of the deceased:-
"1. Ligature Mark:- A broad (4 cm maximum breadth) Parchmentised reddish abraded contusion present in front of the neck, at the level of thyroid cartilage, transverse prominent of on front and faint on back, completely encircling neck. Measuring 31 cm in circumference. Subcutaneous tissue and muscles underlying ligature mark were grossly contused. Fracture of thyroid cartilage right cornu. Fracture of right cornu of hyoid bone.
2. Both black eyes, on right cheek blue contusion measuring 5 x 3 cm merging with black eye on right side.
3. One cm blue contusion over left side of upper lip.
4. Chin swollen having blue contusion extending to left side.
5. 1cm, 1/2cm, 1/2cm, 3 contusions present on right side of the neck around 1.5 cm above the ligature mark mentioned as injury No. 1.
6. 1.5cm, 1.5 cm circular crescentric marks abrasions present on left side of neck above the injury No. 1.
7. Bleeding from nose and mouth present.
8. 4 cm x 2 cm contusion, blue on medial side of right elbow.
9. 4 x 2 cm contusion, blue on medial aspect of left elbow.::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 11
10. 6 x 6 cm blue contusion on left dorsum of hand of left side (on autopsy cut and seen for confirmation).
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According to the witness, deceased died as a result of asphyxia secondary to ligature strangulation.
12. Now significantly Doctor opines only injury No. 1 to have been inflicted with chunni (Dupatta Ext. P-12). In this case prosecution has failed to explain the other injuries.
Law on Circumstantial Evidence
13. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon'ble the Supreme Court of India held that:-
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission.
The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 12 principal fact can be legally inferred or presumed. ................."
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.........In Bhagat Ram v. State of Punjab 10. [AIR 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
(Emphasis supplied)
14. Also it is a settled proposition of law that when there is no direct evidence of crime, guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with crime. All the links in the chain of circumstances, must be established beyond reasonable doubt, and the proved circumstances should be consistent only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196;
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 13Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622;
.
Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Trimukh Maroti Kiran versus State of Maharashtra, (2006) 10 SCC 681; Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; Ashok Kumar Chatterjee vs. State of M.P., 1989 Supp. (1) SCC 560;
Balwinder Singh vs. State of Punjab, (1987) 1 SCC 1; State of U.P. vs. Sukhbasi, 1985 Supp. SCC 79; Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116; Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Hukam Singh vs. State of Rajasthan, (1977) 2 SCC 99; and Eradu vs. State of Hyderabad, AIR 1956 SC 316]
15. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, Hon'ble the Supreme Court of India held that:-
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be"
and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 14 or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be"
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true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Vide: Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109: AIR 2011 SC 1017; and Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777].
14. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808: AIR 1973 SC 2773, this Court observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 15 one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
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This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""
16. Relying upon its earlier decision in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, Hon'ble the Supreme Court of India in Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, again reiterated that:
"15. .... ... Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence."
17. In Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116, Hon'ble the Supreme Court of India held that:-
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 16"Moreover the prosecution must stand or fall on its own legs and it cannot derive any .
strength from the weakness of the defence. It is not the law that where there 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." ... ... ... ... "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."
18. At the threshold we shall deal with two circumstances highlighting complicity of the accused in the alleged crime. Behaviour and conduct of the accused is also dealt with herein. It has come on record that accused and the deceased were residing together in the very same rented accommodation at Baddi. In any event, such fact cannot be disputed as is evidently clear from the testimony of relatives of the deceased [Sh. Charan Dass (PW-6), Smt. Sunita Devi (PW-11), Smt. Satya Devi (PW-21) and Sh.
Krishan Dutt (PW-29)], owner Sh. Mahinder Singh (PW-8) and neighbour Sh. Brij Lal (PW-10). Where all did the accused stay from 21.3.2008 till the time police met him at Baddi on 26.3.2008, remains unexplained by him though his ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 17 landlord does state that accused was seen at Baddi on 24.3.2008. Also whereabouts of the deceased have not .
been disclosed by him. According to the prosecution, this fact alone raises suspicion pointing towards the guilt of the accused. But to our mind, this fact alone cannot be a ground sufficient enough to convict the accused. Crime did not take place at Baddi or for that matter in or near the native villages of the accused or the deceased. Suspicion strong or not, is a matter of perception. But then it is a settled principle of law that suspicion, howsoever strong it may be, cannot be a reason to convict the accused. In the instant case, prosecution has not been able to establish presence of the accused at the place of recovery of dead body, which according to the prosecution in fact is the spot where deceased was murdered.
19. Another very strong circumstance pressed against the accused is his alleged admission of having left the deceased, on the fateful day, in the area from where the dead body was recovered. We find even this circumstance cannot be said to have been established at all. Satya Devi, mother of the deceased, states that "I do not remember the month but the date was 24th the accused telephoned us that he has left Sushma at Kunihar whether she has reached ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 18 home or not. He had telephoned from Baddi. We told him that she had not reached here", whereas, Charan Dass, .
brother of the deceased, states that "My son then rang up Om Parkash. Om Parkash informed that Sushma has left for Anji on 21st. My son told Om Parkash that Sushma Bua has not reached Anji. My son then told this fact to me. As and when Sushma visited us at Anji Om Parkash used to accompany her to and fro".
r Evidently, the version is contradictory and not corroborative in nature. According to the mother, it was the accused who telephonically informed "us" that he had left the deceased at "Kunihar", whereas according to Charan Dass, his son called up the accused to enquire the whereabouts of the deceased and was informed that "deceased" had "left for Anji on 21st". Kunihar and Anji are two different and distant places. In any event, mother does not state that "she" had spoken with the accused on telephone. Who is this "us", she does not disclose and the version of Charan Dass, to this extent, is in the nature of hearsay, for his this son has not been examined in Court and Krishan Dutt does not reveal such conversation. Also, there is no record pertaining to any such telephonic conversation. Further, we find the aforesaid version of the witnesses to be mere exaggeration, as it does not find ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 19 recorded in their prior statements (Ex. DD and DH) with which they were confronted. Even otherwise we do not find .
the testimonies of these witnesses to be inspiring in confidence. Significantly, after having learnt that the deceased had not reached Baddi on 24th, no action was taken by the witnesses. Mother wants us to believe that she knew about absence of the deceased on 24th itself, whereas according to the brother, it was only on 25th that they learnt about the same. Also, we find the witnesses to have not identified the photograph, so published in the newspaper, which was so done by other witnesses, who had only seen her once. It is not the case of prosecution that the photograph so published was smudged; the body was deformed; or the photograph was not clear and body identifiable. Thus even this circumstance cannot be said to have been proved. Here we must clarify that other than the statements of these two witnesses, indicating presence of the accused and the deceased in the area, there are testimonies of other three witnesses, with which we shall deal separately.
Date of Recovery of the Dead Body and Circumstance No.1:
20. Dead body of the deceased was recovered on 22.3.2008 from the spot i.e. below the road passing through ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 20 the land of Sh. Om Prakash, which fact, stands established through the testimony of police officials Inspector Liaq Ram, .
LC - Meera Thakur and Rajesh Kumar.
21. Now when the dead body was initially noticed by Om Prakash he only saw sandals of a woman on the road.
He immediately informed his cousin Roop Ram Sharma, who in turn informed Pradhan Govind Ram Bhardwaj. Now Pradhan categorically states that he telephonically informed the police at Police Post Sairi. But then there is no evidence as to which of the police officials received the phone call and which one of them, in turn passed on the information at Police Station Kandaghat. Except for recording name of Constable Prem Lal in the daily diary (Ext. PW-28/A), for unexplained reasons, none of the police officials have come forward to establish this link in the chain, which we find to be relevant as we do not find the witnesses to be worthy of credence. Their version is doubtful.
22. Whether dead body was spotted on 22nd March, 2008 itself is in doubt. Om Parkash states that on 22.3.2008 at about 10.00 a.m., he saw the dead body lying below the motorable road. The witness was confronted of not having seen the dead body on 22.3.2008. However, when we ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 21 peruse the testimony of Roop Ram we find that in his statement (Ex. DB) he got recorded to the police that the .
same was seen by him on 21st March, 2008. Pradhan Govind Ram Bhardwaj (PW-3), to whom information was furnished by Roop Ram states that he informed Police Post Sairi about recovery of the dead body. This was so done on 22nd March, 2008. When we peruse the Daily Diary Report (Ext. PW-
28/A) we find that it was HC-Prem Lal who furnished such information at Police Station, Kandaghat. This document does not record presence of Om Prakash, Roop Ram or the Pradhan. Significantly neither any official from Police Post Sairi nor HC-Prem Lal has been examined in court. Also record of telephonic conversation of Om Prakash, Roop Ram Sharma or Govind Ram Bhardwaj or for that matter Prem Lal is not placed on record. Absence only breaks the link in the chain and such fact not to have been established on record.
23. It has come in the testimony of the witnesses, including that of Rajesh Kumar that the road from where the dead body was recovered is quite busy and according to Om Prakash there are houses and shops close by. Yet he did not inform any one there. Why so? has not been explained. In fact presence of Om Prakash itself is in doubt. Except for his oral statement there is nothing to establish that the land ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 22 (ghassni) belongs to him. His house is at a distance of about one and half kilometer from the spot. He has not explained .
the reason of his presence on the spot. As per the Post Mortem Report (Ext. PW-19/A), death which was immediate, would have taken place sometime at about 3.00 a.m. in night intervening 21st and 22nd March, 2008. On a busy road, with habitation around, in a rural area, is it possible to believe that none else would have noticed the body for more than seven hours. In our considered view, no.
24. Further Om Prakash only noticed sandals on the spot, whereas, Inspector Liaq Ram, LC-Meera Thakur and Rajesh Kumar (an independent witness), state that a cash memo (issued by M/s Bharat Ram & Sons) and a used condom lying near the dead body was taken into possession vide memo (Ext. PW-5/A). Significantly, these articles were not noticed by Om Prakash, the first person to have spotted the dead body. Be that is it may, it was a case of homicide and for some strange, unexplained reason, Liaq Ram accepted the oral version of one Kailash (not examined) and without even recording any statement, believed the condom wrapped in the bill, to have been thrown by him during the night of 20th and 21st of March, 2008. In fact, this Kailash was a prime suspect. Why is it that the Investigating Officer ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 23 accepted such oral version is not evident from the record.
Also he did not verify from M/s Bharat Ram & Sons as to .
whether this bill pertained to any articles purchased either by the accused, deceased or for that matter by this Kailash.
Despite all this, the Investigating Officer sends the condom for chemical analysis. Intriguingly report of the chemical analyst (Ext. PY) at the Forensic Science Laboratory, Junga, reveals the sample of blood sent for matching to be that of one Lalit Kumar. Now who is this Lalit Kumar and why his blood sample was sent for chemical analysis remains unexplained by the prosecution witnesses.
25. Noticeably Kunihar is the focal point from where road leads to four different directions, i.e. Shimla, Baddi, Solan and Arki. Native village of the accused is on the road leading towards Arki, whereas, Anji, village of the deceased, is in a totally different and opposite direction on the road leading to Solan. Serighat, the place where the dead body was recovered is at a distance of 12 to 15 km from Kunihar, on a road leading to Shimla and not Baddi. Neither the accused nor the deceased had any occasion or reason to be present there. Thus, to our mind, prosecution has not been able to establish, beyond reasonable doubt, the fact that ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 24 dead body was first seen by Om Prakash on 22.3.2008, though evidently recovery was effected on that date.
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Circumstances No. 2 and 3: Here we are also dealing with the question of motive.
26. To establish the same, prosecution seeks reliance upon the testimonies of brother Charan Dass (PW-
6), sister Sunita Devi (PW-11), mother Satya Devi (PW-21) and nephew of the deceased, Krishan Dutt (PW-29). Also Mahinder Singh (PW-8) owner of the tenanted premises at Baddi and neighbour Brij Lal (PW-10) are relevant.
27. From the unrebutted testimony of Mahinder Singh it is evidently clear that both the accused and the deceased were residing together, as tenants, in the very same accommodation for 3 - 4 years prior to the occurrence of the incident. Such fact also stands corroborated by neighbour Brij Lal as also Satya Devi and Krishan Dutt who went and stayed with the accused and the deceased at Baddi.
28. Mahinder Singh and Brij Lal are silent about any illicit relationship which the accused and the deceased were allegedly having with each other. They were the best persons to have noticed any such thing. Charan Dass only states that "perhaps" the accused and the deceased were ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 25 having such relationship as both of them wanted to marry each other. Sunita Devi who resides in District Ropar, .
Punjab does mention such fact, but then except for her bald statement, there is nothing else to corroborate the same.
Satya Devi is silent on this aspect. It has come in her testimony that she would often visit Baddi and stay with the deceased for 3 - 4 days. At least she did not notice anything unusual in their conduct. Version of Krishan Dutt of having noticed both the accused and the deceased sleeping together on the same cot is absolutely uninspiring in confidence. He admits not to have disclosed such fact to anyone and having visited Baddi only with his grandmother who incidentally does not corroborate such version. Now except for bald and unsubstantiated version of the sister (PW-11) and the nephew (PW-29), which we are not ready to accept, there is no other credible evidence to establish existence of any such alleged illicit relationship between the accused and the deceased.
29. On the question as to whether accused had any motive to kill the deceased or whether they quarrelled with each other, we have again minutely examined the testimonies of these witnesses. Charan Dass simply states that since the accused and the deceased would visit Aanji ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 26 (native village of the deceased) together, it was "suspected" that he had killed her. Version of PW-11 to the .
effect that during their visit to her place at Ropar, they had quarrelled out of jealousy, both accusing each other of moving with friends, to our mind, is nothing but an improvement and exaggeration as it is not so recorded in her previous statement (Ext. DF) with which she was confronted. Also r particulars of such friends remain undisclosed by her. The time and period of visit is also not revealed. Satya Devi is absolutely silent on the question of motive or any incident of alleged quarrels and from the testimony of Krishan Dutt nature of quarrel cannot be inferred. He only states that both would accuse each other of extramarital relationship. But with whom? remains undisclosed. That apart, his version is not corroborated by his grandmother. Apart from bald assertions there is nothing on record to establish the factum of quarrel. It is nobody's case that the accused and the deceased quarrelled either at their native places; near the village(s) or on the road. It is also not the case of prosecution that they had ever registered any grievance with anyone about their misconduct. In fact, acrimony, if any, would have been observed and noticed by the neighbours at Baddi. Now ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 27 Mahinder Singh is absolutely silent on this aspect and Brij Lal states that:
.
"... Whenever accused came late, Sushma used to ask him why he has come late. I never saw them quarrelling. Once accused and Sushma had quarreled over late arrival of the accused. She did not permit him to stay in the room. On that night, accused stayed with me in my room. Next day around 9.30 a.m. he was taken back by Sushma."
Now this version, in no manner establishes the circumstance of acrimonious relationship between the accused and the deceased, much less any suspicion of both of them having any illicit relationship with each other or someone else.
30. As to whether on 21.3.2008, accused left Baddi together with the deceased or not, attention is invited to the testimony of Mahender Singh, who though initially did state that "last time they had gone together on 21st March, 2008"
but qualifies by stating that "I did not see them going together but found their room locked". He further clarifies that "I never saw accused and Sushma going home together and coming back to Baddi together". His testimony goes unrebutted. There is no other ocular version on record.
31. However prosecution argues that since both the accused and the deceased took half day leave, it be only ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 28 presumed that together they left Baddi for their native village(s). We do not find even this circumstance to have .
been established, in accordance with law.
32. Sh. Mahinder Singh (PW-7) is the Vice President of the Organization, where deceased was employed as a Receptionist at Baddi. It is his version that on 21.3.2008 at 12.45 p.m., deceased hurriedly met him and sought half day leave which on urgent basis, was sanctioned.
r He clarifies that 21.3.2008 was a Friday and since next two days were holidays, on Saturday it was Holi and Sunday was off, deceased was to only join the next working day i.e. Monday (24.3.2008) which she failed to do so. Record of attendance register (Ext. PW-7/B) does establish the fact that from the second half of 21.3.2008, deceased was on leave. But this is not the position of the accused.
33. It has come on record that accused was employed with M/s Cenzer Industries Ltd. at Baddi. To establish the fact that accused also took half day leave on 21.3.2008 and joined duty on 24th of March, prosecution relies upon the testimonies of Sh. Surender Singh (PW-9) and Sh. Bal Chand Vohra (PW-18). However, veracity of their testimonies as also correctness and genuineness of the record so produced by them is in dispute and doubt.
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 29Surender Singh is not the sanctioning authority. Attendance register (Ext.PW-18/A) stands exhibited by Bal Chand Vohra.
.
We find leave application of the accused to be exhibited as Ext.PW-18/E. But then the document does not bear the signatures of either of the witness. Witnesses are neither the recommending nor the sanctioning authority. Mere exhibiting of a document would not dispense the requirement of proving the document on record. Signatures of the accused on the document have also not been proved on record. Also what totally knocks down the prosecution case is the following observation made by the trial Court after perusing the attendance register (Ext. PW-18/A):
"It is incorrect that accused had not taken half day leave on that day and he was in the factory. I cannot say there is erasing on the column of 21st and 25th in respect of the entry pertaining to the attendance of the accused on these dates. (At this stage the learned counsel for the accused had requested the Court to examine the register in respect to the entries in the columns pertaining to accused for 21st and 25th. Register Examined. There does appear such impression with respect to these columns pertaining to the accused dated 21st and 25th. ) The register is not filled by me. My attendance is not marked in the register. It is incorrect that the erasing has been done by the police. It is incorrect that no leave application was made by the accused. (The register is also ordered to be retained on the request of the defence counsel).
[Emphasis supplied]
34. Thus, considering the record to have been interpolated, it cannot be said that prosecution has been ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 30 able to prove the fact that after taking half day's leave in the afternoon of 21st March, 2008, accused left for his native .
village with the deceased. It was not difficult for the prosecution to have otherwise established the factum of leave. Salary slip of the accused would have easily disclosed such fact, but even that was not so done.
Circumstance No. 4:
35. We now deal with the circumstance of the deceased seen lastly in the company of the accused at Kunihar. To this effect our attention is invited to the testimonies of Sh. Ranbir Singh (PW-14), Sh. Ramesh Chand (PW-15), Sh. Devinder Kumar (PW-17) and the Investigating Officer Liaq Ram (PW-28).
36. Before analyzing the evidence, we proceed to discuss the law as under:
37. Hon'ble the Supreme Court of India in Ravirala Laxmaiah vs. State of Andhra Pradesh, (2013) 9 SCC 283, after taking note of its earlier decisions rendered in Nika Ram vs. State of H.P., (1972) 2 SCC 80; Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 and Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 reiterated the principle that where accused is last seen with the victim, it becomes his duty to explain the circumstances ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 31 under which the victim died. It is a strong circumstance indicative of the fact that he is responsible for the crime.
.
38. Hon'ble the Supreme Court of India in Dharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC 509 has further held that:-
"19. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 32 parted company. Reference may be made to the judgment of this Court in Sahadevan vs. State, .
(2003) 1 SCC 534."
(Emphasis supplied)
39. In Krishnan alias Ramasamy & others, vs. State of Tamil Nadu, AIR 2014 SC 2548; and Harivadan Babubhai Patel vs. State of Gujarat, (2013) 7 SCC 45, the principle stands reiterated.
40. Significantly, in Rohtash Kumar vs. State of Haryana, (2013) 14 SCC 434, Hon'ble the Supreme Court of India has held that:-
"34. Thus, the doctrine of "last seen together"
shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him."
(Emphasis supplied)
41. Thus, last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased died or is found dead, is so small that possibility of any person, other than the accused, being the author of crime becomes impossible. The burden would immediately shift upon the accused.
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 3342. A conjoint reading of testimonies of Ranbir Singh and Devinder Kumar reveal that on 21.3.2008 at about 6.45 .
p.m., accused came on a scooter with the deceased and stopped at the hotel/dhaba of Ranbir Singh at Kunihar.
There they had chana and samosa. Since Devinder Kumar, friend of Ranbir Singh was present in the shop, deceased paid money to him. We find the witnesses not worthy of credence or their versions to be inspiring in confidence at all.
43. It has come in the testimony of the Investigating Officer that since none came to identify the dead body, photograph was published in the daily newspaper having wide circulation. Now these witnesses admit that after seeing the photograph in the newspaper they immediately identified the girl to be the one who had visited the shop on 21st March, yet, none of them informed the police or any other person about such fact. Why so? has not been explained. That apart, their statements are mutually contradictory. According to Ranbir Singh it was the day after the girl visited them that he saw her photograph in the newspaper, whereas, Devinder Kumar states it to be on 24.3.2008. Now if the photograph was published only on 24th March, then where was the question of Ranbir Singh ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 34 seeing it on 22.3.2008? Also their version that accused came from Nalagarh side is not believable, for none .
informed them of such fact and they were not familiar with the accused. Significantly shop of Ranbir Singh is not on the Nalagarh - Kunihar road. Crucially during investigation, no photograph of the deceased was shown to Ranbir Singh by the police and the photograph published in the newspaper is not on record. Then how is it that the witness could identify the deceased to be the very same girl who had consumed snacks in his shop is not evident. Also no test identification parade of the accused was got done. It is nobody's case that the witnesses were known to the accused from before and had disclosed identity of the accused to the police or that police had got the accused identified from them by any other lawful means. Further, Devinder Kumar states that clothes, which the deceased was wearing, were having white coloured flowers and not yellow as the prosecution wants the court to believe.
44. Third witness Ramesh Chand states that same date and around same time, one "girl" whom he referred to be the deceased, came to his shop at Kunihar bazaar and after purchasing three suits went with the accused on his scooter. Suits (Ext. P-14 and P-15) recovered by the police ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 35 during investigation are identified by him. But then version of this witness, to our mind, does not inspire any .
confidence. He admits of having a dispute with his wife who had filed a police case against him. Date of settlement of the same is not clear but witness appears to have deposed under pressure. Why is it that he did not issue any bill against the sale of suits? Also no cloth matching the one so recovered by the police was either recovered or produced by the police. He identified the deceased to be the very same "girl" who bought the suits, only from the photograph shown to him by the police on 30th March. But then where is this photograph? For it is neither on record nor shown to him during trial. It is not his case that the deceased was his regular customer and knew her by name or was able to easily recognize her. In fact, he does state that the "girl"
who purchased the suits from him also visited other shops of readymade garments. She had also stopped to talk to her girl friends. Now which are these shops? What did she do there? Who are these friends of hers? It has not been explained at all. The investigating officer could have recorded statements of such persons. As such, veracity of the statement of this witness, to our mind, is absolutely doubtful. His testimony cannot be said to be worthy of ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 36 credence. We find the witness to be a tax evader. Also police recovered only two suits (Ext.P-14 and P-15). Where .
is the third suit, has not been explained by them. Suits were packed by him in a yellow coloured bag with the name of his shop printed thereupon. Now where is this bag which was recovered by the police? Thus there is nothing to establish that the deceased had purchased any suit from the shop of this witness.
45. From the Post Mortem Report, it is evident that accused died at about 3.00 a.m. in the night intervening 21st and 22nd March, 2008. Assuming hypothetically that on 21.3.2008 at about 6.30 p.m., accused and the deceased were last seen together at Kunihar, even then the time gap of approximately seven - eight hours remains unexplained by the prosecution. After 6.30 p.m. none saw them together. Also none saw the accused leave towards the spot of crime. Dead body was recovered at a distance of 15 k.m.
away from Kunihar, on a road to Shimla where neither the deceased nor the accused had any business or reason to be present. Also none saw the accused on or near the spot of crime.
::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 3746. There is yet another factor which belies the prosecution theory of last seen together. There is inordinate .
delay in recording the statements of these witnesses by the police. Why so? has not been explained. Also how is it that police was able to reach these witnesses. It is not that of their own, they went to the police, narrating the events which took place in their presence. Investigating Officer states that during interrogation accused disclosed such fact.
But then, noticeably, there is no disclosure statement to this effect and version of the Investigating Officer, being hearsay and inculpatory in nature is inadmissible in law, more so in view of provisions of Sections 24 and 25 of the Indian Evidence Act. No other witness has orally corroborated such fact. It is not that police did not record any statement of the accused under Section 27 of the Evidence Act. But then, it pertains only to one fact i.e. concealment of chunni (weapon of offence) allegedly used for strangulating the deceased which was got recovered on 29.3.2008, from a place, which was just near the Kunihar bazaar. If police was already in that area, then why is it that statement of these witnesses were not recorded promptly at that time. It appears that only upon receipt of the final opinion of the Doctor (dated 25.4.2008), did the police ::: Downloaded on - 15/04/2017 17:48:04 :::HCHP 38 introduce these witnesses to establish the last seen circumstance.
.
47. In Vasanta Sampat Dupare vs. State of Maharashtra, (2015) 1 SCC 253, Hon'ble Supreme Court of India, held as under:
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor, 1947 AIR (PC) 67 has held thus:
r "... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
24. In Mohd. Inayatullah v. State of Maharashtra, 1976 1 SCC 828, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that:-
::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 39"11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application .
to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
'27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.'
12. The expression 'provided that' together with the phrase 'whether it amounts to a confession or not' show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence.
The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 40 of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given .
by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, 1929 AIR (Lah) 344; Ganu Chandra Kashid v. Emperor, 1932 AIR (Bom) 286). Now it r is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67; Udai Bhan v. State of Uttar Pradesh, AIR 1962 SC 1116)."
25. In Aftab Ahmad Anasari V. State of Uttaranchal, (2010) 2 SCC 583 after referring to the decision in Palukuri Kotayya , the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that:-
"40. ...the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 41 clothes should not be treated as an incriminating circumstance, is devoid of merits".
.
26. In State of Maharashtra v. Damu, (2000) 6 SCC 269 it has been held as follows:
"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in Section 27 of the Evidence Act, 1872. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
The similar principle has been laid down in State of Maharashtra v. Suresh (2000 1 SCC 471), State of Punjab v. Gurnam Kaur (2009) 11 SCC 225, Aftab Ahmad Anasari v. State of Uttaranchal (2010) 2 SCC 583, Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396, Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and Rumi Bora Dutta v. State of Assam, (2013) 7 SCC 417.
27. In the case at hand, as is perceptible, the recovery had taken place when the appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.
28. Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 42 eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In .
this context we may refer with profit to the authority in Prakash Chand v State (Delhi Admn.), (1979) 3 SCC 90 wherein the Court after referring to the decision in H.P. Admn. V. Om Prakash, (1972) 1 SCC 249 held thus:
"8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by r Section 162 of the Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
29. In A.N. Venkatesh and another v. State of Karnataka, (2005) 7 SCC 714 it has been ruled that:-
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 43 out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement .
made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn. (1979) 3 SCC 90). Even if we hold that the disclosure statement made by the accused-
appellants (Exts. P- 15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. r Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act.""
48. Thus, to our mind, the circumstance of the accused and the deceased last seen together at Kunihar cannot be said to have been established, beyond reasonable doubt. We notice that even though trial Court referred to the established principles of law, but did not correctly apply it to the given facts and circumstances. As already observed, time gap between the point of time, when the accused and the deceased were seen together and the dead body of the deceased was recovered from the spot, cannot be said to be so small, ruling out possibility of any person other than the accused being the author of the crime.::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 44
Circumstance No. 7:
49. Version of the Investigating Officer (PW-28) that .
in the presence of Sh. Kailash Chand (PW-13), accused vide statement (Ext. PW-13/A) disclosed that he could get recovered chunni which he had concealed, does not inspire confidence at all. In fact, we find the testimony of the Investigating Officer, on the whole, not to be inspiring any confidence at all. It is full of contradictions, variations, exaggerations, improvements and unexplained circumstances. He admits that "it is correct that I did not record any statement of the accused regarding identification of shops at Kunihar" . ... "It is correct that no statement qua the recovery of the two lady suits and a ear drop was recorded by me". ... "It is correct that there is no reference of place Mara Pani in Ext. PW13/A and Ext. PW 12/A". Why so? has not been explained by him. After all this was crucial for proving the guilt of the accused.
50. Further he categorically admits the disclosure statement (Ext. PW-13/A) not to be written by him. He volunteers to state that it was got written from ASI Gulab Singh (PW-30), which version stands materially belied by the said ASI, who is categorical in his version to the effect ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 45 that "I cannot say as who has been written Ex. PW 12/A, Ex.
PW 13/A and PW 13/B and Ex. PW13/C but bears the .
signatures of the SHO".
51. In fact, Kailash Chand (PW-13) also contradicts the version of the Investigating Officer. He states that "this statement was written at the place where the Duppatta was found". Thus it totally knocks down the prosecution case of the accused having made the disclosure statement at the police station, whereafter only chunni was recovered from the spot where it was concealed by the accused. If police was already aware of the place where the weapon of offence was concealed by the accused, then obviously recovery cannot be said to have been effected pursuant to the disclosure statement.
52. Chunni (Ext. P-12) was recovered vide memo (Ext. PW-12/A) in the presence of witnesses Sh. Jagat Ram (PW-12) and Sh. Bheema Nand (not examined).
53. Now Jagat Ram does state that accused Om Parkash got recovered chunni from the culvert, which was taken into possession vide recovery memo (Ext. PW-12/A).
But seal with which the parcel was sealed is not produced in Court. It is admitted case of the prosecution that such ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 46 chunnies are easily available in the market. Anyone could have procured it from any place. But what is difficult to .
fathom is the presence of this witness on the spot. He is not a local resident. His native village is at a distance of 4 k.m. from the spot. His place of residence is also far off from the police station. He admits that the place from where chhuni was recovered there are four shops, one bank and 4
- 5 residential houses. Now why is it that police did not associate any local resident for carrying out recovery proceedings remains unexplained. Witness claims to be a passerby and not a resident of that place. He is not a respectable resident of the area either. As such why would police associate him as a witness remains unexplained casting serious doubt on the prosecution story. It is not that none else was available. Police was already present on the spot when he met them. This version of his totally belies the prosecution story of the accused having got the spot of concealment of the weapon of offence, identified in the presence of independent witnesses. Also his version cannot be said to be inspiring in confidence. He does not remember for how long police remained present on the spot. He does not remember which police official prepared memo (Ext.
PW-12/A) He admits that chunni (Ext.P-12) is commonly ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 47 available. Crucially he admits that his village is close to the village of the deceased, perhaps it is for this reason that .
police associated him as a witness. His testimony as an interested person, in any event is uninspiring in confidence.
54. Discovery of incriminating articles alleged to have been recovered by the accused is inadmissible in evidence, if the police already knew where they were hidden. (See: Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217; and Thimma and Thimma Raju v. State of Mysore, 1970(2) SCC 105).
Circumstances No. 5 and 6:
55. Prosecution wants the Court to believe that at the time of her death, deceased was wearing two earrings, one of which fell on the ground which was recovered by Seema (PW-20) and the other one was recovered from the custody of mother of the accused (not examined), in the presence of HC-Rakesh Chand (PW-16).
56. Seema states that on 26.4.2008 she found a jhumka lying on the Serighat - Neri road, which she gave to her uncle Vasudev who told her that perhaps it belonged to the lady who was murdered. Her uncle not only informed ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 48 the police at Police Post Sairi, but with prior telephonic information, also went to the house of parents of the .
deceased to show the same. However on 1.5.2008 her uncle took her to police station Kandaghat and handed over the jhumka to the police. We find her version to be not only uncorroborated but in fact contradicted on record. Vasudev has not been examined in Court. Her further version that she had gone to the house of mother of the deceased, is an exaggeration and improvement for it is not so recorded in her prior statement (Ext. DG), so recorded by the police. To us, version of the witness of having recovered the earring does not inspire confidence as not only the road is busy but also police had carefully searched the entire place of recovery of dead body. Noticeably she (PW-20) remained silent and did not disclose about such fact to her parents with whom she was staying. It is not that they were illiterate or unfamiliar with the procedures of law. On this issue, even the contradictory version of Satya Devi that Vasudev, and not Seema, came to her house to show the jhumka, appears to be uninspiring in confidence, apart from being a mere exaggeration and improvement, for it is not so recorded in her statement (Ext. DH). It is not the case of prosecution that after murdering the deceased, accused ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 49 removed the jhumkas, one of which, fell on the way and other one he gave it to his mother. There is no statement of .
the witnesses to this effect. Why is it that Vasudev did not hand over the jhumka to Satya Devi or for that matter she did not inform the police about the same remains unexplained. Also why is that officials of Police Post Sairi were not examined remains unexplained. It is in this backdrop, non-examination of Vasudev, who was given up by the prosecution, acquires significance.
57. Further improbabilities do not end here. HHC Rakesh Chand (PW-16) states that one jhumka was recovered from the custody of one Sh. Amar Chand, brother of the accused (not examined in Court). But what is significant is this witness not signing the parcel containing this jhumka, taken into possession vide memo (Ext. PW-
13/C). This fact becomes relevant when we notice Satya Devi admitting that earrings (Ext. P-13 and P-18) were got identified from her at the police station. Now it is not the case of prosecution that recovery of jhumkas were effected in her presence or that they were resealed after identification. It is the positive case of the prosecution, that parcel containing earrings was opened for the first time only ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 50 in Court. Thus obviously either of the witnesses has deposed falsely in Court. Either the mother is telling lies or .
the Investigating Officer has created evidence. Also on this count, no record of any telephonic conversation which took place between Seema, her uncle, parents of the deceased or the police has been placed on record. Under what authority and why did the Investigating Officer interrogate the mother and brother of the accused, as is so deposed by HHC-Rakesh Chand, has not come on record. Also their statements were not recorded. It is in this backdrop, non production of the seal, with which the said parcel was sealed, acquires significance.
58. Even at the cost of repetition we observe that Satya Devi has contradicted the version of Seema and the Investigating officer on the issue of recovery and handing over of jhumka to the police. Satya Devi, who does not even mention about Seema, only states that the jhumka shown to her by Vasudev in her house, was identified by her to be that of the deceased. She further states that thereafter he took it and handed over it to the police. Whereas according to the Investigating Officer it was Seema who gave it to him.
::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 5159. Prosecution recovered two ladies suits, kept in a yellow coloured polythene bag from the custody of Smt. .
Sharda Devi, mother of the accused (not examined in Court). Where is this yellow coloured polythene carry bag?
Why is it not placed on record? It would have only corroborated the version of Ramesh Chand. Also only two were recovered. Where is the third suit? remains unexplained. r Circumstance No. 8
60. Through the testimony of the Investigating Officer, prosecution wants the Court to believe that as a result of an accident, accused sustained injuries. This was while he was taking the deceased to the spot of crime.
Significantly there are no tell tale signs either on the scooter or at the place of recovery of the body. Also the place where the alleged accident took place remains unidentified.
61. It is not a case of faulty investigation but false implication on the basis of cooked up evidence.
Investigating Officer, whose version is totally unbelievable, states that after receipt of information (Ext. PW-28/A), he proceeded to the spot and recovered the dead body along ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 52 with a bill and a used condom. He further states that one Kailash came and informed him that it was he who had .
thrown the same on the road. Now why would the Investigating Officer, even without recording such statement, let go a prime suspect, remains unexplained. His testimony is absolutely unreliable and unbelievable. In fact, it is bordering falsehood. Further, witness states that since identity of the dead body could not be known, he got published her photograph in the news paper and also sent information of missing person in the illaqa. But this news paper has not been placed on record. Be that as it may, he further states that after having come to know that daughter of Tulsi Ram resident of village Aanji Jabal, used to reside in warm area, he sent Constables Narender, Ravinder and Nagender Singh to his house. But none of these police officials have been examined in Court. Their non examination acquires significance when we find that family members of the deceased (PW-6, PW-11, PW-21 and PW-29) failed to recognize the deceased from the photograph so published in the news paper. It is not that dead body was deformed or was beyond recognition. We have ourselves seen the photographs (Ext.PW-28A1 to A16) so taken on the spot. That photograph published in the newspaper was clear ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 53 and identifiable is the case of the prosecution. This is what the prosecution wants the court to believe through the .
testimonies of Ranbir Singh and Devinder Kumar. Version of the Investigating Officer of being informed by the accused about his presence at Kunihar, as already discussed, is inadmissible in law. For identical reasons his version of the accused having taken him to the place of recovery of dead body is legally inadmissible. We find his version that it was Seema who handed over the jhumka to the police to be contradicted on record. Seema states that it was Vasudev who handed the same to the police at the police station.
But he does not even record the presence of Vasudev. We further find from his testimony that police had associated one Raj Kumar, Ward Member of Kandaghat Panchayat during investigation. Now this person is not even a cited witness, let alone examined in Court. Why is it that person of some credibility was not examined, remains unexplained, particularly when he admits the independent witnesses, so examined in Court, to be residing at far off places. Further if police was already aware of the place from where the dead body was recovered, then what was the occasion or purpose for the Investigating Officer to have taken the accused to that place. There is doubt as to whether the Investigating ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 54 Officer visited the site at all or not. We find him not to be familiar with the general topography of the area. He does .
not know the distance between commonly known places of the area; the extent of Kunihar bazaar; the road leading to different villages; the road on which shop of Ramesh chand is situated or that shop of Ranbir Singh is also in the same area. It appears that false documents were got prepared, which fact is evident from his admission that even though it is so recorded, but signatures of the accused are not on them. Not only that, he concealed certain document from the Court. His request dated 8.4.2008, made to the Doctor for obtaining final opinion is not on record. He admits not to have obtained any sale record, bills, cash memo from PW-
14 and PW-15. Why so? remains unexplained. We do not find the version of the Investigating Officer of having recovered the chunni (Ext. P-12) to be inspiring in confidence at all.
62. According to Dr. M.P. Singh (PW-23) who examined the accused on 28.3.2008, injuries, at least five days old, more in the form of abrasions, were sustained by a blunt weapon. To some extent, Doctor probablizes the defence of the accused for such injuries could have been sustained on account of beatings. It is a clear case of the ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 55 accused that on 25.3.2008, he was taken away by the police from Baddi and not only detained but also beaten up.
.
63. Prosecution has not been able to explain injuries No. 2 to 10 found on the body of the deceased. None came forward to state that they were sustained as a result of a road accident. It is also not the case of prosecution that the deceased was otherwise beaten up by the accused which caused such injuries.
64. Hence trial Court committed grave error by misreading and not correctly appreciating the testimonies of the witnesses. Version of the landlord, to the effect that the room of the accused was lying locked till 23.3.2008 does not raise presumption, in law, of guilt of the accused.
Court erred in assuming that simply because the accused and the deceased were living together, under one roof, despite being in illicit relationship with each other, were in constant quarrel. In fact, as has come on record through the neighbour, accused and the deceased were having cordial relationship. Accused never took any plea of alibi, thus there was no occasion for him to have discharged the burden.
65. Trial court erred in holding that prosecution was able to prove and establish the disclosure statement, ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 56 leading to recovery of chunni (Ext. P-12). Significantly, no article linking the accused was recovered from the spot (i) .
of recovery of the dead body, (ii) chunni and/or (iii) jhumka.
66. Thus, in our considered view, trial Court erred in convicting the accused of the charged offence. Disclosure statements and recoveries effected pursuant thereto, cannot be said to be based on cogent, clear and convincing piece of evidence.
67. In the instant case, circumstances leading to the irresistible conclusion of guilt of the accused and to no other hypothesis cannot be said to have been proved on record, by leading cogent, convincing, reliable and legal piece of evidence.
68. Thus, findings of conviction and sentence, returned by the Court below against accused Om Prakash, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence.
::: Downloaded on - 15/04/2017 17:48:05 :::HCHP 5769. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, .
dated 27.5.2009/29.5.2009, passed by learned Sessions Judge, Solan, H.P., in Case No. 1-S/7 of 2008, titled as State of Himachal Pradesh vs. Om Prakash, is set aside and accused Om Prakash is acquitted of the charged offence.
He be released from jail, if not required in any other case.
Amount of fine, if deposited by the accused, be refunded to him accordingly. Release warrants be immediately prepared.
Appeal stands disposed of, so also pending application(s), if any.
(Sanjay Karol), Judge.
(P. S. Rana), Judge.
March 18 , 2015 (PK) ::: Downloaded on - 15/04/2017 17:48:05 :::HCHP