Himachal Pradesh High Court
Simran Pal Singh vs State Of Himachal Pradesh on 8 January, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 243 of 2012 .
Judgment reserved on : 26.11.2014
Date of Decision : January 8, 2015
Simran Pal Singh ...Appellant
Versus
State of Himachal Pradesh ...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. B. S. Slathia, Sr. Advocate with Mr. Vinay Thakur and Mr. Nitin Gupta, Advocates, for the appellant.
For the respondent : Mr. B. S. Parmar, Mr. Ashok
Chaudhary and Mr. V.S.
Chauhan, Addl. Advocate
Generals with Mr. Vikram Thakur,
Dy. A.G. for the respondent-
State.
Sanjay Karol, Judge
Assailing the judgment dated 24.5.2012,
passed by learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No. 14-S/7 of 2010, titled as State of H.P. vs. Simran Pal Singh, whereby appellant-
Whether reporters of Local Papers may be allowed to see the judgment?
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accused stands convicted and sentenced to undergo imprisonment for life in relation to an offence punishable .
under the provisions of Section 302 of the Indian Penal Code, he has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973.
2. It is the case of prosecution that on 17.1.2010 accused Simran Pal Singh son of Rachpal Singh (PW-5) got married to Simarjit Kaur (deceased) daughter of Harnek Singh (PW-1). The couple decided to visit Shimla for their honeymoon. Accused borrowed a car from his friend Pankaj Sethi (PW-32) at Panchkula (Haryana) and came to Shimla. On 21.2.2010 they checked in at Kufri Holiday Resorts, Kufri, District Shimla (H.P.). During their stay there, they spoke with their respective parents. Last such conversation took place on 22.2.2010. Same day, at 4.00 p.m. accused also spoke with Ranjit Singh (PW-4), brother of the deceased and informed that they were returning to Panchkula from Kufri. He also informed Rachpal Singh about the same. However, on return from Kufri, just before Shimla, accused stopped the car near ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...3...
Hasan Valley and with an intent of murdering, pushed the deceased below the cliff into a deep gorge. Motive being, .
his suspicion of deceased having illicit relationship with her father-in-law. Thereafter accused came and checked in at hotel Gulmarg Regency in Shimla and the following morning i.e. 23.2.2010 left for Panchkula, where he met his friend Pankaj Sethi and also sought legal opinion from a lawyer. In the night of 22.2.2010 and morning of 23.2.2010, Harnek Singh, without any success, tried to contact his daughter on telephone. On 24.2.2010/ 25.2.2010 accused met his father Rachpal Singh at Panchkula/Mohali (Twin Cities on the periphery of Chandigarh) and misinformed that the deceased had left him at Kufri, as she had desired to take a long walk, since when she was not traceable. On 26.2.2010, Rachpal Singh informed Harnek Singh that both the accused and the deceased were well. All along accused remained in Panchkula. Since Harnek Singh was not able to contact his daughter, on 27.2.2010, he alongwith Rachpal Singh came to Chandigarh to meet the deceased whose whereabouts were still not known to him. Even then ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...4...
accused maintained stoic silence. Since deceased was not traceable, on 28.2.2010 Rachpal Singh lodged .
missing reports (Ext.PW-5/A and Ex.PW-5/B) at Police Station, Sadar, Ferozepur (Punjab). For investigation, police officials HC-Gurcharan Singh (PW-29), ASI Rakesh Kumar (PW-36) and HC-Jaspal Singh (PW-28) visited Panchkula and questioned the accused. Eventually on 1.3.2010, accused disclosed to ASI Rakesh Kumar that he had killed his wife by pushing her down the cliff somewhere near Kufri, which information was passed on to officials of Police Station Dhalli (H.P.). ASI-Sapinder Singh (PW-39) Police Station, Dhalli, recorded such fact in the roznamcha register (Ext.PW-9/A) and informed his higher authorities. Inspector Balbir Singh (PW-40), S.H.O. Police Station Dhalli, deputed ASI Bhup Singh (PW-38) to take necessary action. Police officials visited Panchkula and in the early hours of morning of 2.3.2010, ASI Bhup Singh (PW-38) brought the accused to Police Station, Dhalli, where Harnek Singh (PW-1) got his statement recorded under Section 154 Cr.P.C. (Ext. PW-1/A), on the basis of which F.I.R. No. 41 of 2010, dated 2.3.2010 (Ext.
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PW-40/A) was registered against the accused under the provisions of Section 302 of the Indian Penal Code.
.
Accused, who was arrested, in the presence of Harnek Singh, Atma Singh (PW-2), Ranjit Singh (PW-4) and Ravinder Singh (PW-3) made a disclosure statement (Ex.
PW-1/B), under the provisions of Section 27 of the Indian Evidence Act to the effect that near Kufri, between Green Valley and Hasan Valley, he had thrown the body of the deceased into a gorge. He then led the police to the spot and got recovered from the jungle, dead body, partially eaten by wild animals, so identified to be the deceased by Harnek Singh, vide Memo (Ex. PW-1/D). Constable Lokender Singh (PW-22) took photographs of the spot (Ex. PW-22/1-A to 22/A-9), which also was demarcated by Patwari Vijay Singh (PW-12), who prepared tatima (Ex.
PW-12/A). From the spot, dupatta (Ex.P-2) and other incriminating articles belonging to the deceased were also recovered. Inquest reports (Ext.PW-25/A and 25/B) were prepared and vide application (Ext. PW-25/A) dead body was sent for post mortem which was conducted by a Board and Dr. Piyush Kapila, on the basis of report (Ex.
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PW-23/A) of the chemical examiner, issued final post mortem report (Ex. PW-25/E), opining that deceased died .
on account of head injury. Thereafter, dead body was handed over to Harnek Singh (PW-1) for performance of last rites.
3. From the custody of accused 14 articles/items were recovered vide memo Ext. PW-1/C, dated 2.3.2010, including his mobile phone (Samsung) (Ex.P-3), SIM card (Ex. P-4), r which were deposited with the MHC.
Investigation further revealed that immediately prior to the incident, in his Cell Phone, accused had recorded conversation which he had had with his wife.
Accordingly, after obtaining his consent (Ex. PW-27/A), voice sample of the accused was taken vide memo (Ex.
PW-27/B). ASI Sapinder Singh (PW-39) and HC Kuldeep Singh (PW-34) prepared two transcripts (Ex. PW-39/B and 39/C) of the voice recorded conversations. Mobile Phone and the recorded voice sample, was also sent through constable Manish Mehta (PW-17), for analysis to the Central Forensic Science Laboratory, Chandigarh, vide Road Certificate dated 18.3.2010, which stood deposited ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...7...
there. As per opinion of the Expert (Ex. PW-37/A), the questioned voice sample, in all probability, matched with .
the voice so recorded in the Mobile Phone. Also, during investigation, police took into possession records of the hotels, where accused had spent the night of 21st and 22nd February, 2010. After obtaining his sample handwriting (S-1 to S-12 - Ex. PW-11/C-1 to 11/C-12), record was sent for opinion of an Expert and as per Dr. Minakshi Mahajan (PW-11), questioned documents (Q-1 to Q-12 - Ex. PW-11/D-1 to 11/D-12) bore the signatures of the accused. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
4. Accused was charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code to which he did not plead guilty and claimed trial.
5. In order to establish its case, prosecution examined as many as 40 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was recorded. Though initially, ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...8...
accused chose to lead evidence in his defence, but despite opportunity afforded, he did not do so.
.
6. Despite witnesses Rachpal Singh and Pankaj Sethi not supporting the prosecution, trial Court found the prosecution to have proved the guilt of the accused, beyond reasonable doubt. Thus, based on the testimonies of witnesses and the material on record, trial Court convicted the accused of an offence punishable under the provisions of Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life, not to be released from prison, till the end of his life.
Hence the present appeal.
7. Assailing the judgment, Mr. B.S. Slathia, Senior Advocate, ably assisted by Mr. Vinay Thakur and Mr. Nitin Gupta, Advocates, has made the following submissions: (i) Court below erred in relying upon disclosure statement (Ex. PW-1/B) of the accused.
Recovery of dead body was not as a result of or pursuant to such statement, for police was already aware of the place from where the accused had pushed his wife. Such information furnished to the police officials at Panchkula ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...9...
stood communicated to the officials of Police Station, Dhalli; in any event, such disclosure statement is .
involuntary in nature, for even according to prosecution witnesses, police used force (Dabka). There were no telltale signs on the spot of crime and dead body so recovered was not that of the deceased; (ii) Mobile phone so recovered from the accused, was not sealed by the police on 2.3.2010; in the memo of personal search (Ex.
PW-1/C), there is no mention of seizure of memory card of the mobile, which was sealed only on 9.3.2010, hence possibility of tampering of evidence by police officials cannot be ruled out. In the seizure memo (Ex. PW-1/C) as also malkhana register (Ex. PW-19/B-1), there is no mention of Memory Card, which was recovered only on 7.3.2010, as is evident from Ex.PW-19/A. Hence, in the absence of seizure of memory card, exhibiting motive, transcript is inadmissible in evidence. Sample voice recording of the accused is inadmissible, in view of provisions of Sections 24, 25 of the Indian Evidence Act;
out of seven recorded conversations, for unexplainable reasons, police got prepared transcript of only two ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...10...
conversations, thus concealing/withholding material piece of evidence; transcript was not prepared by the very .
same person, who heard the conversation. Also possibility of error cannot be ruled out. Thus, the transcribed version of alleged recorded conversation cannot be relied upon as a piece of evidence; in any event, circumstance, material in nature, of recovery of memory card, not put to the accused in his statement under the provisions of Section 313 of the Code of Criminal Procedure, cannot be used against him; (iii) Notwithstanding the fact that in the night of 22.2.2010 accused stayed alone at a hotel in Shimla, his conduct vis-à-vis last seen theory is irrelevant and not a circumstance to be considered for determination of guilt of the accused; (iv) testimony of an Expert, i.e. Dr. Piyush Kapila (PW-25) stands contradicted and thus discredited by her own report (Ex. PW-25/D); evidence of expert does not establish the deceased to have died on 22.2.2010; (v) No conviction can be based on admission made by the accused in his statement made under the provisions of Section 313 of the Code of Criminal Procedure; (vi) ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...11...
motive as stated in the proceedings under the provisions of Section 173 (Challan) has not been proved on record.
.
Absence thereof automatically entitles the accused for an acquittal.
8. On the other hand Mr. Ashok Chaudhary, learned Additional Advocate General, has supported the judgment for the reasons set out therein. He has minutely taken us through the testimonies of the witnesses and other incriminating material on record.
9. We have extensively heard learned counsel appearing on both sides, perused the record and gone through various decisions cited during the course of hearing.
10. Conviction of the accused is based on the following circumstances, culled out by the trial Court: "(1) disclosure statement of accused with postmortem report indicates it to be case of homicide; (2) the accused and the deceased having been together soon before the incident; (3) existence of a motive; (4) conversation in the SIM card of accused mobile phone with his wife; (5) ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...12...
unnatural behavior of the accused soon after the incident."
.
11. We now proceed to discuss each of the circumstances, which we find are material and relevant, against the accused.
I. Relationship between the parties
12. Fact that the accused was married to Simarjit Kaur (deceased) on 17.1.2010, as per Sikh Customary rites is not in dispute.
II. Honeymoon trip to Kufri
13. Fact that the accused came to Shimla Hills on a honeymoon trip with his wife Simarjit Kaur is not disputed by the accused. Since the evening of 22.2.2010, Simarjit Kaur was found missing is also not disputed by him.
III. Cause and time of Death
14. In the instant case a board was constituted for conducting the postmortem of dead body of Smt. Simarjeet Kaur. Dr. Piyush Kapila (PW-25) being one of its members, has opined that death occurred within one hour of the deceased sustaining injuries. As per report, ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...13...
deceased died about eight days prior to the date of postmortem, which was so done on 2.3.2010, which .
means that decessed died almost at the same time she was found missing or had left Kufri for a walk. Doctors found the body to have solidified due to extreme cold.
Hypostasis was present. Rigor mortis was absent and there was no presence of putrification. As per final opinion (Ext. PW-25/E), witness opined that "it is not possible to opine about exact cause of death in absence of neck tissues, however, taking into consideration about trauma to head and chest in our opinion head injury is most probable cause of death".
15. We do not agree with the submission so made on behalf of the accused, that medical evidence is contradictory and mutually destructive. Absence of rigor mortis and putrification, upon which much emphasis is laid, can be on account of existence of extreme cold, almost freezing like conditions, prevalent at the place and time of the incident. According to the doctor, death was almost instantaneous. The body was lying deep in the jungle, for almost eight days in the month of ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...14...
February, when normally Kufri/Shimla and its surrounding areas are covered with snow.
.
IV. Circumstance of Last Seen and Conduct of the Accused
16. Admittedly there is no eye-witness to the alleged incident in relation to which accused stands convicted. Prosecution case primarily rests upon circumstantial evidence. The law on circumstantial evidence is now very well settled. To base a conviction on circumstantial evidence, prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events, as would permit no conclusion other than the one of guilt of the accused.
Circumstances to be proved have to be beyond reasonable doubt and not based on principle of preponderance of probability. Suspicion, howsoever, grave, cannot be a substitute for a proof and courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. In the instant case, circumstance of last seen and conduct ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...15...
of the accused is heavily relied upon by the prosecutors.
Before we deal with the factual matrix, with profit, we .
discuss the law on the point.
Meaning of beyond reasonable doubt
17. Hon'ble Supreme Court of India in Shivaji Sahabrao Bobade & another vs. State of Maharashtra, (1973) 2 SCC 793 has held that:-
"6. Even at this stage we may remind ourselves of a necessary social perspectives in criminal cases which suffers from insufficient forensic appreciation. The dangers of rexaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author [Glanville Williams in 'Proof of Guilt'] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...16...
of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too .
frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that " a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ... ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in ranalysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago."
[Emphasis supplied] Law on Circumstantial Evidence
18. 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 ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...17...
principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently .
circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. ................."
10. .........In Bhagat Ram v. State of Punjab [AIR 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
r (Emphasis supplied)
19. 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.
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While appreciating the circumstantial evidence, Court must adopt a very cautious approach and great caution .
must be taken to evaluate the circumstantial evidence.
[See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172;
Trimukh Maroti Kiran versus State of Maharashtra, (2006) 10 SCC 681; Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; Ashok Kumar Chatterjee vs. State of M.P., 1989 Supp. (1) SCC 560;
Balwinder Singh vs. State of Punjab, (1987) 1 SCC 1; State of U.P. vs. Sukhbasi, 1985 Supp. SCC 79; Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116; Earabhadrappa vs. State of Karnataka, (1983) 2 SCC 330; Hukam Singh vs. State of Rajasthan, (1977) 2 SCC 99; and Eradu vs. State of Hyderabad, AIR 1956 SC 316]
20. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, Hon'ble the Supreme Court of India held that:-
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"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 or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. [Vide: Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, (2011) 3 SCC 109: AIR 2011 SC 1017; and Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777].
14. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808: AIR 1973 SC 2773, this Court observed as under:::: Downloaded on - 15/04/2017 17:31:39 :::HCHP
...20...
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two .
views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.""
21. 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."::: Downloaded on - 15/04/2017 17:31:39 :::HCHP
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Law on Last Seen Theory and Conduct of the Accused
22. 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 under which the victim died. It is a strong circumstance indicative of the fact that he is responsible for the crime.
23. 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 ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...22...
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 parted company. Reference may be made to the judgment of this Court in Sahadevan vs. State, (2003) 1 SCC 534."
(Emphasis supplied)
24. 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.
25. 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)
26. Thus, last seen theory comes into play where the time gap between the point of time when the accused ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...23...
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.
Factual matrix on the circumstance of Last Seen and Conduct
27. Ms Yogita Verma (PW-8) has proved on record extract of the register (Ex.PW-8/A) and the Bill (Ex.PW-
8/B), issued by Kufri Holiday Resorts, the place where the couple spent the night. Signatures of the accused are there on both these documents. Witness has testified to such effect. Evidently, accused checked in the hotel on 21.2.2010 and checked out on 22.2.2010 at about 12.40 p.m. Constable Deepak Kumar (PW-20) has testified having taken on record documents, including bills (Ex.
PW-8/B and 8/D) for purchase of food by the accused from the hotel.
28. On an application moved by the Investigating Officer Balbir Singh, in the presence of Chief Judicial Magistrate, Shimla, specimen signatures of the accused ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...24...
were obtained, which were sent for comparison with the signatures recorded on the aforesaid documents and .
from the testimony of Dr. Meenakshi (PW-11), Assistant Director (Documents and Photography), Forensic Science Laboratory, Junga, who proved on record report (Ex. PW-
11/A), signatures are testified to be that of the accused.
There was no reason for the accused to have disputed his signatures on these documents, for it is his own case that at Kufri, he stayed in a hotel. Which hotel? He did not disclose. Which fact stands established, beyond reasonable doubt, by the prosecution.
29. In his statement so recorded, under Section 313 of the Code of Criminal Procedure, accused has taken the following defence:
"I am innocent. On 22.2.2010 I alongwith my wife checked out from hotel at Kufri and went to different spots at Kufri. I was in mood to go to Shimla, whereas, my wife was insisting to stay at Kufri. At about 7.30 PM, she told me that she was going out for a walk. I remained in the hotel. My wife did not return back, thereafter, I tried to locate my wife at Kufri myself and with the help of hotel employees. I also contacted with my friends at Chandigarh and then came to Shimla. I stayed at Shimla and on 23.2.2010, I went to Chandigarh. I contacted my friends and lawyers friend at Chandigarh. I was confused and perplexed due to this incident so, I did not ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...25...
think it proper to contact my relatives at that time. My father met me at Chandigarh on 25.2.2010 and at that time, I told him that I am trying to locate my wife with the help of my .
friends. I had good/cordial relations with my wife. I am roped in a false."
30. Prima facie, defence taken by the accused appears to be false. Evidently, he checked out of the hotel at 12.40 p.m. Where did he go thereafter, has not been explained by him. It is not his case that the couple returned to the hotel and stayed there till 7 p.m. Accused had already decided to leave Kufri during the day. Thus, there is no question of his being in the hotel till 7 p.m. or the deceased leaving for a long walk and that too alone. He has not disclosed the names of the employees of the hotel, his friends or the Advocate.
31. Accused in his statement so recorded under Section 313 Cr. P.C. admits that after 22nd February, 2010, neither he, nor the deceased had any conversation with Harnek Singh; on 25th February, 2010, his father met him in the house of his friend at Mohali, where he disclosed that the deceased had left him for taking a long walk and that he could not find her. [Questions No. 8, 11 and 12] ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...26...
32. Significantly, Rachpal Singh (PW-5), father of the accused, also admits of being informed by the .
accused that on 22.2.2010 deceased left for a long walk and since then she was untraceable. Also, in his uncontroverted testimony, witness admits that on 25.2.2010, when he met his son at Panchkula, one Advocate by the name of Mr. Dinesh was with him. His request and offer of searching the deceased stood declined by the accused for the reason that it was not necessary for him to do so. Accused chose to himself trace the deceased. Thus, evidently, just three days after occurrence of the incident, accused was seeking legal assistance. The question is, why would a newly married husband do this? For he did not suspect any foul play.
Intriguingly, accused left his wife alone at Kufri and without lodging any complaint or reporting the factum of her absence to anyone, not even staff of the hotel, he coolly came to Shimla and checked into a private hotel for spending the night. Viju Sharma (PW-6) has placed on record extract of register (Ex. PW-6/B), taken into possession by the police vide memo (Ex. PW-6/C), ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...27...
recording entry of such stay in the night of 22.2.2010 at Hotel Gulmarg Regency, Shimla. Testimony of Bal Krishan .
(PW-7) and HC-Daljit Singh (PW-18) is also evidently clear to this effect. Record reveals that accused checked into this hotel at 11.45 p.m. and checked out the following morning, i.e. 23.2.2010 at 10.00 a.m. Even in Shimla accused did not make any endeavour of tracing his wife.
Why so? has not been explained. No complaint was lodged with any person.
33. Harnek Singh (PW-1) states that accused lastly spoke with him on 22.2.2010 at 4 p.m. Even Rachpal Singh (PW-5) admits to have spoken with the accused and the deceased same day at 7 p.m. At that time, couple was still at Kufri. Significantly, thereafter, though accused sought legal opinion, but made no endeavour of contacting either his father or father-in-law.
Rachpal Singh was in constant touch with Harnek Singh and only when he failed to establish any contact either with the accused or the deceased, on 24.2.2010 he came to Chandigarh and met the accused on 25.2.2010. Why is it that prior thereto, accused did not inform his parents ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...28...
about the missing of his wife. Not only that, even at Panchkula or Ferozpur accused did not lodge any missing .
report. Significantly, it was his father Rachpal Singh (PW-
5) who informed Harnek Singh (PW-1) about the same on 27.2.2010 and only thereafter such reports came to be lodged at Police Station, Ferozpur and that too, not by him but his father. HC-Gurcharan Singh (PW-29), ASI Rakesh Kumar (PW-36) and HC-Jaspal Singh (PW-28), police officials of Police Station, Ferozepur, have testified lodging of two complaints, dated 28.2.2010 (Ex. PW-5/A and 5/B).
34. After all couple was young, newly married and neither of them knew anyone in Kufri or in Shimla. Also, deceased was unfamiliar with the place, its topography and terrain. Why is that he did not stop his wife from going alone for a walk? And that too in a cold wintry dark night. What all he did after his wife went for a walk in the evening (7'O Clock) has not been explained by him. Why is it that accused came to Shimla and checked into a hotel? Significantly, in the month of February, days are not long and Kufri is only a small hamlet. It is neither a ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...29...
city nor a town having big bazaar. Why would he allow his wife, and that too alone, to step-out out of the hotel in .
darkness, remains unexplained. It is not the case of the accused that despite his resistance, deceased stepped out of the hotel against his wishes. Judicial notice can be taken of the fact that Kufri is at a distance of 16 k.m.
from Shimla and Kufri Resorts is 2 k.m. further ahead, on the road to Chail. Hassan Valley and Green Valley are places which fall midway between Kufri and Shimla. Even if a native was to walk from Kufri Resorts, in a cold and dark wintry evening, it would take minimum of one hour to reach the place from where dead body was recovered.
Thus, from the testimony of prosecution witnesses, we find the prosecution to have established the fact that immediately prior to the occurrence of incident/death, only deceased was in the company of the accused. He misled and misinformed his father and also refused his help. Thus, conduct of the accused in the instant case is another circumstance, which stands proved by the prosecution against him.
::: Downloaded on - 15/04/2017 17:31:39 :::HCHP...30...
Failure to explain incriminating material u/s 313 Cr.P.C.
.
35. In a case of circumstantial evidence, where no eyewitness account is available, when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. False answers given by the accused in Section 313 Cr.P.C. statement may offer an additional link in the chain of circumstances to complete the chain.
[See: Dharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC 509; Harivadan Babudhai Patel vs. State of Gujarat, (2013) 7 SCC 45; and Rohtash Kumar vs. State of Haryana, (2013) 14 SCC 434; Anthony D'Souza & others vs. State of Karnataka, (2003) 1 SCC 259; State of Maharashtra vs. Suresh, (2000) 1 SCC 471 and Swapan Patra vs. State of W.B. (1999) 9 SCC 242].
36. In Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116, Hon'ble the Supreme Court of India has held that before a false explanation ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...31...
can be used as additional link, Court must be satisfied that various links in the chain of evidence led by the .
prosecution have been satisfactorily proved; the said circumstance points to the guilt of the accused with reasonable definiteness; and the circumstance is in proximity to the time and situation.
37. In Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353, Hon'ble the Supreme Court of India, held as under:-
r "22. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. [Vide: Ramnaresh vs. State of Chhattisgarh, (2012) 4 SCC 257; Munish Mubar vs. State of Haryana, (2012) 10 SCC 464:
AIR 2013 SC 912; and Raj Kumar Singh vs. State of Rajasthan, (2013) 5 SCC 722.]
23. In the instant case, as the appellant did not take any defence or furnish any explanation as to any of the incriminating material placed by the trial court, the courts below have rightly drawn an adverse inference against him. The appellant has not denied his presence in the ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...32...
house on that night. When the children were left in the custody of the appellant, he was bound to explain as under what circumstances Gounjhi died.
.
24. In Prithipal Singh vs. State of Punjab, (2012) 1 SCC 10, this Court relying on its earlier judgment in State of W.B. vs. Mir Mohammad Omar, (2000) 8 SCC 382, held as under:
"53..... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But r the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
(Emphasis supplied) [See also: Neel Kumar vs. State of Haryana, (2012) 5 SCC 766; and Gian Chand vs. State of Haryana, (2013) 14 SCC 420]"
38. Thus prosecution having discharged its onus, it was incumbent upon the accused to have come forward ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...33...
and explained the circumstances leading to the death of his wife, as is so required by law. Whom all did accused .
meet between 23rd and 25th of February has not been explained by him. Where all did he stay and what all did he do has also not been explained. His stoic silence till the time his father contacted him, and thereafter refusing his help for searching the deceased, is only indicative of his conduct and guilt.
V. Circumstance of disclosure statement of the accused also leading to recovery of dead body at his instance.
39. Before discussing the factual aspect, we refer to the law on the point.
40. Sections 25, 26 and 27 of the Indian Evidence Act read as under:
"25. Confession to police officer not to be proved.
No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...34...
presence of a Magistrate, shall be proved as against such person.
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."
41. r It be observed the principle of law as laid down in Pulukuri Kottaya and others v. Emperor, AIR (34) 1947 Privy Council 67, which is reproduced herein under, has been consistently followed by Hon'ble the Supreme Court of India.
"[10] ... ... On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships' view 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 ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...35...
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."
(Emphasis supplied)
42. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon'ble Supreme Court of India, held as under:-
r"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. vs. Bal Krishan, (1972) 4 SCC 659: AIR 1972 SC 3 and Mohd. Inayatullah vs. State of Maharashtra, (1976) 1 SCC 828: AIR 1976 SC
483. The words "so much of such information"
as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...36...
preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is .
required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...37...
to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact .
information must be adduced through evidence.
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Pulukuri Kotayya v. 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. [See: State of Maharashtra v. Danu Gopinath Shinde, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." (Emphasis supplied) ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...38...
43. In Harivadan Babubhai Patel vs. State of Gujarat, (2013) 7 SCC 45, Hon'ble Supreme Court of .
India, held that:-
"17. In this context, we may usefully refer to A.N. Venkatesh and another v. State of Karnataka [(2005) 7 SCC 714] wherein it has been ruled that:
"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 r found ... 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 of the Evidence Act or not. ..."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin) [(1979) 3 SCC 90: AIR 1979 SC 400]. It is worth noting that in the said case, there was material on record that the accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
18. 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 ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...39...
envisaged in Section 27 of the Evidence Act, 1872. The decision of the Privy Council in Pulukuri Kottaya 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."
19. The same principle has been laid down in State of Maharashtra v. Suresh [(2000) 1 SCC 471], State of Punjab v. Gurnam Kaur and others [(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: AIR 2011 SC 1863], Manu r Sharma v. State [(2010) 6 SCC 1: AIR 2010 SC 2352] and Rumi Bora Dutta v. State of Assam [(2013) 7 SCC 417]."
44. In Mohmed Inayatulla vs. The State of Maharashtra, 1976 SCC (Cri) 199, Hon'ble Supreme Court of India, held that:-
"12. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows 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, Sec. 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 ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...40...
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 that 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 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. Crown, ILR 10 Lah 283 (FB): AIR 1929 Lah 344; Rex vs. Ganee, ILR 56 Bom 172: AIR 1932 Bom 286.] Now it 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 Palukuri Kotayya v. Emperor, AIR 1947 PC 67; Udai Bhan v. State of Uttar Pradesh, 1962 Supp (2) SCR 830: AIR 1962 SC 1116]."
(Emphasis supplied) ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...41...
45. In Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509, the Hon'ble Supreme Court of .
India, held that:
"22. The expression "custody" which appears in Section 27 does not mean formal custody, which includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time when the accused gave the information, the accused was, for all practical purposes, in the custody of the police. This Court in State of A.P. vs. Gangula Satya Murthy, (1997) 1 SCC 272 held that if the accused is within the ken of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance. r Consequently, so much of information given by the accused in "custody", in consequence of which a fact is discovered, is admissible in evidence, whether such information amounts to a confession or not. Reference may also be made to the judgment of this Court in A. N. Venkatesh vs. State of Karnataka, (2005) 7 SCC
714. In Sandeep vs. State of U.P., (2012) 6 SCC 107, this Court held that:
"52. ... It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered." "
46. Recovery of dead body of the deceased at the instance of the convict can be taken as a strong ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...42...
circumstance against him. [See: Shanti Devi vs. State of Rajasthan, (2012) 12 SCC 158].
.
47. Keeping in view the aforesaid principles, we proceed to discuss the evidence on record.
48. Accused in his statement so recorded under Section 313 Cr. P.C. admits that on 1.3.2010 his father Rachpal Singh, father-in-law Harnek Singh alongwith police officials came to the house of his friend at Panchkula from where he was taken to Police Station, Sector-14 Panchkula and that police officials from Shimla visited Panchkula and brought him to Shimla alongwith his relatives, one Advocate and Atma Singh.
49. On the complaint dated 28.2.2010 (Ext. PW-
5/A), so made by Rachpal Singh (PW-5), police party from Police Station, Sadar, Ferozpur, after recording entry in the roznamcha (Ext.PW-29/A), so proved by HC-
Gurcharan Singh (PW-29), proceeded to Panchkula. Also, police officials ASI-Rakesh Kumar (PW-36) and HC-Jaspal Singh (PW-28), on another complaint (Ex. PW-5/B), made by Rachpal Singh, met the accused at Panchkula on 1.3.2010. When they put "mental pressure", accused ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...43...
informed that "while coming from Kufri to Shimla, he threw his wife down hill on 22.2.2010". Now, ASI-Rakesh .
Kumar categorically states that he never recorded any statement of the accused, who, in fact, never intended to make one. However, telephonically, he informed Inspector Balbir Singh, Incharge of Police Station Dhalli, Shimla (H.P.) about the same. Also, Harnek Singh (PW-1) states that upon being questioned by the police officials from Ferozpur, rather "strictly", accused informed that "while coming from Kufri, he gave a push to her (here he refers to the deceased) down hill into a gorge", he clarifies the term "strictly" to mean "Dabka" (sternly). We are convinced that no pressure was put on the accused.
Attitude of sternness is not pressure. Rachpal Singh (PW-
5), who does not support the prosecution only states that despite being slapped by police officials, accused only informed that "his wife went missing while walking in the forests near Kufri". ASI-Bhup Singh (PW-38) also states that at Panckhula accused informed that he had pushed his wife down the hill. In the early hours of 2.3.2010, when he brought the accused to Police Station, Dhalli, ::: Downloaded on - 15/04/2017 17:31:39 :::HCHP ...44...
accused made a disclosure statement. Prior thereto, as is evident from the testimony of Inspector Balbir Singh (PW-
.
40), S.H.O. Police Station Dhalli, statement of Harnek Singh (PW-1) under Section 154 Cr.P.C. (Ext. PW-1/A) stood recorded, which led to registration of the FIR(Ext.
PW-40/A) against the accused. Disclosure statement (Ex.PW-1/B) made by the accused, under Section 27 of the Evidence Act, was recorded thereafter. Significantly, no pressure, of any nature, was put by police officials of Police Station, Dhalli, where disclosure statement was made and recorded. Much emphasis is laid on the fact that since police was already aware of the accused having killed his wife by pushing her into a gorge, his subsequent statement is inadmissible in law. But it is not so. Statement (Ex.PW-1/A) only records that when no information pertaining to the deceased was disclosed by the accused, ASI-Rakesh Kumar (PW-36) brought him to Sector 14 Panchkula, where accused disclosed that on 22.2.2010 near Kufri, he quarreled with his wife and killed her by pushing her down the cliff. Whereas in disclosure statement (Ext. PW-1/B), he discloses that on 22.2.2010 ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...45...
at about 7 p.m., while he was on way from Kufri to Shimla, he stopped his car and fought with his wife.
.
Though he was not aware of name of the place where he had pushed his wife below the cliff, yet he could get her dead body recovered by identifying such place. What is significant in statement (Ex. PW-1/B) is not that accused killed his wife but the fact that (i) after identifying the spot from where he had pushed her, (ii) he could get her dead body recovered, which fact he had not disclosed to any one at Panchkula or Mohali.
50. We find the disclosure statement to be admissible in law and not hit by Sections 25 and 26 of the Evidence Act. It is voluntary in nature, recorded in the presence of Harnek Singh (PW-1), Atma Singh (PW-2), Revinder Singh (PW-3) and Ranjit Singh (PW-4), who have also proved such fact. At that time, accused though in custody and was not under any pressure. Also pursuant to such statement, accused actually led the police party to the spot from where he had pushed the deceased and got her dead body recovered in the presence of not only police officials Balbir Singh (PW-40), Kuldeep Singh (PW-
::: Downloaded on - 15/04/2017 17:31:40 :::HCHP...46...
34), Photographer C-Lokinder Singh (PW-22), but also independent witnesses Harnek Singh (PW-1), Atma Ram .
(PW-2), Ravinder Singh (PW-3) and Ranjit Singh (PW-4), who in one voice, without any blemish or demur, have testified such fact.
51. Balbir Singh categorically states that accused first took the police party towards Kufri and then brought them back to a place "between Hasan valley and Green Valley", where he pointed to a place, on the left side of road, and showed the point from where he had pushed the deceased. Only one green coloured "Chunni" and not the dead body was visible from the road, hence, police party took another route (forest-Seog road) and reached the spot where dead body of a girl, identified to be that of the deceased by her relatives, was found and recovered.
Such version stands corroborated by ASI-Bhoop Singh (PW-38) and HC-Kuldeep Singh (PW-34), according to whom dead body was visible from the Highway, only "with some deep concentration". In fact, he clarifies that from the place where on the asking of accused, vehicle was stopped, only "Chunni" was visible from the road.
::: Downloaded on - 15/04/2017 17:31:40 :::HCHP...47...
Contradiction in his testimony, upon which much emphasis is laid, is none and stands clarified by the .
witness himself.
52. When we peruse testimony of independent witnesses, we find there is no contradiction at all, either with regard to disclosure statement or recovery of dead body. Harnek Singh categorically states that the place was identified by the accused, who led the police party to the spot from where he had pushed the deceased down the cliff and also got recovered dead body, identified by him to be that of his daughter. He is witness to the proceedings conducted on the spot, i.e. memos (Ex. PW-
1/D & 1/E). We find that the spot in question was also identified by Patwari Vijay Singh (PW-12), who prepared spot map (Ex. PW-12/A). Evidently, body was found at a place which was 40 meters below the National Highway, i.e. Shimla-Kufri road.
53. An endeavour, on a serious note, was made to point out that the recovered body was not that of the deceased but someone else. In effect, identification of dead body is in issue. Investigating Officer Inspector ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...48...
Balbir Singh (PW-40) states that pursuant to disclosure statement made by the accused, dead body of the .
deceased was recovered from the forest between Green Valley and Hassan Valley near Kufri. This was so done after it was identified by Sh. Harnek Singh (PW-1), Ranjit Singh (PW-4) and Angrez Singh. Memo (Ext. PW-1/D) is on record to this effect. Witness clarifies that only half portion of face of the deceased was eaten by wild animals whereas remaining half portion was still intact.
We have seen Photographs, which reveal the face to be identifiable. Even HC-Kuldeep Singh (PW-34) corroborates such fact. Also, Harnek Singh (PW-1), in his unrebutted testimony, testifies that he identified the dead body to be that of his daughter (deceased). This he was able to do after seeing her face. His testimony stands corroborated by uncontroverted version of Atma Singh (PW-2) as also Ranjit Singh (PW-4), brother of the deceased. Hence, the contention only merits rejection.
54. While recovery proceedings were conducted by the police, photographs (Ex.PW-22A-1 to A-9) were taken by C-Lokinder Singh (PW-22).
::: Downloaded on - 15/04/2017 17:31:40 :::HCHP...49...
55. Police also recovered Choora (Ext. P-10), 2 gold bangles; 3 gold rings; 1 chain with pendle; 1 hairpin .
(Ext. P-11) worn by the deceased, vide memo (Ext. PW-
1/F) and chunni (Ext.P-2) vide memo (Ext. PW-1/G). All these articles were identified by the father and the brother to be that of the deceased.
56. Contention that there were no telltale signs of the accused having pushed the deceased, falsifying the prosecution case, to say the least is preposterous. Crime took place in the month of February when normally there is rain and snow. Dead body was got recovered by the accused after a gap of eight days. One cannot expect signs of accused pushing the deceased down the cliff, after such a long period to be there. Be that as it may, dupatta (Ext. P-2) lying hanging, almost half way between the place where accused pushed the deceased and her dead body was recovered was taken into possession by the police.
57. While referring to Rang Bahadur Singh and others vs. State of U.P., AIR 2000 SC 1209, appellant contends that when police at Panchkula learnt about the ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...50...
incident they could have straightaway come and recovered the body for, after all, they knew where it was .
lying. The contention only merits rejection. At Panchkula accused had only disclosed that he had murdered his wife by pushing her down the cliff somewhere near Kufri.
He had not stated that he could get the dead body recovered. He had also not disclosed the exact location of crime. Now Kufri is a big revenue estate. It is like finding a needle in a haystack and in any event not a fact which already stood discovered.
58. Thus, pursuant to disclosure statement, accused led to discovery of two facts; (i) the place from where he pushed the deceased below the cliff, and (ii) recovery of dead body. In our considered view, these circumstances stand conclusively proved and established on record, beyond reasonable doubt, by the prosecution.
The evidence is legal, admissible and proved by witnesses of credence.
59. Thus far, we find the prosecution to have established, beyond reasonable doubt, the following circumstances pointing to the guilt of the accused: (i) ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...51...
That immediately prior to her death, deceased was in the company of the accused; (ii) failure to explain the .
circumstances under which his wife went missing.
Obligation cast upon him, in view of law laid down in Dharam Deo Yadav (supra) as also provisions of Section 106 of the Evidence Act stand not discharged; (iii) conduct of the accused; (iv) disclosure statement, made by the accused; (v) which led to recovery of dead body of the deceased; (vi) and the place from where he pushed her into the gorge. In our considered view, prosecution evidence is reliable and trustworthy. It is clear, cogent, convincing and consistent. There is no missing link or doubt about the chain of events, woven by credible evidence, pointing only towards the guilt of the accused and no other hypothesis of either his innocence or possibility of involvement of a third person. Each and every incriminating circumstance stands clearly established by the prosecution. Reliable and clinching evidence is on record to such effect. It cannot be said that view other than the one, which we have discussed and formed, even by inference, would emerge on record.
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According to us, all these factors, cumulatively, are sufficient enough to uphold the view so taken by the trial .
Court. Thus, guilt of the accused stands proved beyond reasonable doubt.
VI. Motive to Kill
60. That accused suspected the deceased to have illicit relationship with her father-in-law is a motive ascribed by the prosecution. The question which first needs to be considered is as to whether in the absence of proof of motive, prosecution story would fall flat on the ground or not. On this issue, we may straightway come to the law on the point.
61. Reiterating its earlier decision in Ujjagar Singh vs. State of Punjab, (2007) 13 SCC 90, Hon'ble Supreme Court of India, in Sanaullah Khan vs. State of Bihar, (2013) 3 SCC 52 has held that where other circumstances lead to only hypothesis that the accused had committed offence, court cannot acquit the accused of the charged offence, merely because motive for committing the offence stands not established on record. The Court further held that:-
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"18. ... ... Where other circumstances lead to the only hypothesis that the accused has committed the offence, the Court cannot acquit the accused of the offence merely because the .
motive for committing the offence has not been established in the case. In Ujjagar Singh vs. State of Punjab, (2007) 13 SCC 90 this court has held:
"17. ... It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy."
62. rNotwithstanding this position of law, after careful appreciation of testimonies of the witnesses, we are of the considered view that even this circumstance, prosecution has been able to establish and prove, beyond reasonable doubt. Recorded conversation, which the accused had with the deceased, stands proved on record by the prosecution.
Law on Admissibility of voice recorded conversation
63. Tape recorded conversation is admissible, provided that such conversation is relevant to the matter(s) in issue; there is identification of voice; and accuracy thereof is proved by eliminating possibility of ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...54...
erasing. Contemporaneous tape recording of a relevant conversation is a relevant fact, admissible under Section .
8 of the Evidence Act. The tape recorded conversation is contemporaneous relevant evidence and therefore admissible. If it is not tainted by coercion or unfairness, there should be no reason to exclude the same. If there is no unlawful or irregular method in obtaining the recording of conversation, then there is no violation of either Art. 20(3) or Art. 21 of the Constitution.
r Even if evidence is illegally obtained it is admissible. The Court will take care of two factors in admitting such evidence.
First, it will find out that it is genuine and free from tampering or mutilation. Secondly it may also secure scrupulous conduct and behaviour on behalf of the police.
The reason is that Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. [See: R.M. Malkani vs. State of Maharashtra, AIR 1973 SC 157].
64. In Nilesh Dinkar Paradkar vs. State of Maharashtra, (2011) 4 SCC 143, Hon'ble the Supreme ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...55...
Court of India, took note of its earlier decisions in the following manner:
.
"32. In Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. (1976) 2 SCC 17, this Court made following observations:-
"19. We think that the High Court was quite right in holding that the tape- records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
"(a) The voice of the person alleged to be speaking must be duly identified by the r maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
33. In Ram Singh & Ors. Vs. Col. Ram Singh 1985 (Supp) SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...56...
logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it .
will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. r (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
34. In Ram Singh's case (supra), this Court also notices with approval the observations made by the Court of Appeal in England in R. vs. Maqsud Ali (1965) 2 AER 464(CCA). In the aforesaid case, Marshall, J. observed thus:-
"...We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...57...
be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided .
also that the evidence is relevant and otherwise admissible, we are satisfied that a tape- recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
35. To the same effect is the judgment in R. vs. Robson (1972) 2 AER 699, which has also been approved by this Court in Ram Singh's case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows:-
"...The determination of the question is rendered more difficult because tape-
recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts."
36. Chapter 14 of Archbold Criminal Pleading, Evidence and Practice (2010 Edn. At pp.1590-
91) discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...58...
(including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:-
.
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general (research showing that this varies from person to person),
(d) the nature and duration of the speech which is sought to be identified and r (e) the familiarity of the listener with the known voice; and even a confident recognition of a familiar voice by a way listener may nevertheless be wrong."
37. The Court of Appeal in England in R. vs. Chenia (2004) 1 AER 543 and R. vs. Flynn 2008 EWCA Cri 970 has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:-
"(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...59...
listening officer as to his views as to the identify of a speaker; and
(c) any officer attempting a voice .
recognition exercise should not be provided with a transcript bearing the annotations of any other officer."
38. In America, similar safeguards have been evolved through a series of judgments of different Courts. The principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:-
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and r indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...60...
(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
.
... However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said."
{See: Umesh Kumar v. State of Andhra Pradesh and another, (2013) 10 SCC 591; Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329; and R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106.}
65. Applying these principles, evidence to be legally admissible.
66.
During the course of
we find
investigation,
the
on
2.3.2010, itself Inspector Balbir Singh (PW-40) conducted personal search of the accused and recovered certain articles including mobile phone (Samsung-S 3500) (Ext.
P-3), SIM No. 095694-21704 and SIM Airtel No. 97796- 42348 (Ext. P-4) vide memo (Ext. PW-1/C). Witnesses to the document Harnek Singh (PW-1) and Atma Singh (PW-
2) corroborate such fact. Inspector Balbir Singh (PW-40) states that these articles were deposited with MHC Shiv Kumar (PW-19) on 2.3.2010 itself, entry pertaining to which was also made in the Register (extracts Ex.PW-
19/B-1 to 19/B-4).
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67. That accused had quarreled with the deceased and recorded conversion in his mobile phone .
came to light during the course of investigation, as is so deposed by Balbir Singh (PW-40). We find his version worthy of credence. Accordingly, after obtaining consent (Ex. PW-27/A), he got recorded, in a tape-recorder, voice sample of the accused, in the presence of independent witnesses, Gopal Sharma (PW-27), ASI Sapinder Singh (PW-39) and r Kuldeep Singh (PW-34), who also corroborate such fact, through their testimonies, which are wholly convincing and reliable.
68. From the unrebutted testimony of MHC Shiv Kumar (PW-19), it has come on record that articles seized vide memo (Ex. PW-1/C), which remained untampered in the Malkhana, were handed over to the SHO on 7.3.2010, who again on 9.3.2010 handed over three different sealed parcels, containing mobile phone, SIM and tape-
recorder, in relation to which entry was made in the Malkhana Register (extracts Ex.PW-19/B-1 to 19/B-4).
Such recorded conversation and the voice sample (Memo Ex.PW-27/B) were thereafter sent for comparison to the ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...62...
Central Forensic Science Laboratory, through C- Manish Mehta (PW-17) on 18.3.2010. He clarifies that so long as .
articles remained with him, they remained intact and not tampered with.
69. Dr. B. Badonia (PW-37), Deputy Director, Central Forensic Laboratory, Pune, who proved on record report (Ex. PW-37/A), testified that the questioned voice sample (marked as S-1) was the probable voice of the same person, i.e. Simran Pal Singh. We do not find any discrepancy in the prosecution case thus far. However, when we examine the testimonies of police officials, namely ASI Sapinder Singh (PW-39) and HC Kuldeep Singh (PW-34), who prepared transcript (Ex.PW-39/B & 39/C) vide memo (Ex.PW-27/B), witnessed by Gopal (PW-
27) and ASI Bhup Singh (PW-38), it is evident that there were seven conversations, which the accused had recorded in his mobile phone (Ext. P-3), out of which only two were transcribed. Now, does this make the prosecution case weak? In our considered view no.
Accused denied having recorded any conversation. Two such conversations, which stand proved on record to be ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...63...
in the voice of accused, sufficiently establish his motive to kill the deceased. He was suspecting his wife of having .
illicit relationship with his own father. The conversation so recorded on 22.2.2010 at 20.59 hours (PM) almost matches with the time when accused left Kufri, as also the time since when deceased was found to be missing.
One cannot ignore the admission made by the accused that his wife left the hotel at Kufri, for a walk, on 22.2.2010 at 7.30 p.m.
70. From the testimony of MHC Shiv Kumar (PW-
19), it is evidently clear that the articles deposited with him were sealed. There was no question of mention of memory card in Memo (Ex. PW-1/C), for the simple reason that the memory card was in the Mobile Phone and recording of conversation came to the notice of the police, only when the accused was under interrogation during the period of remand. The moment police gathered such information, mobile phone was taken by the Investigating Officer from the MHC alongwith other articles. Police officials have categorically deposed that so long as mobile phone and the memory card remained ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...64...
with them, they were kept in safe custody and not tampered with. The circumstance of recovery of mobile .
phone, SIM and other material stands put to the accused in Questions No.28 & 48 of his statement, recorded under Section 313 Cr.P.C. Here we also refer to two questions put to the accused in his Statement, under Section 313 Cr.P.C.
"Q. 19. It has come in the evidence that your personal search was conducted by the police and 14 different articles were recovered during your personal search. A memo, Ext. PW-1/C was prepared to this effect. What you have to say about it?
Ans. It is correct."
"Q.28. It has further come in the evidence that during your personal search the police has taken into possession one mobile phone Samsung Brand, Ex. P-3, a sim card, Ex. P-4, a passport, Ex. P-5, your photographs of passport size (four in number), Ex. P-6, your two photographs alongwith deceased, Ex. P-7 and Ex. P-8, some hotel bills, mobile phone charger, Ex. P-9 and all these articles were sealed in a parcel with six seals of seal impression M. What you have to say about it?
Ans. It is correct."
71. Record reveals that articles seized vide memo (Ext. PW-1/C) were immediately deposited with MHC- Shiv Kumar (PW-19) who has categorically deposed that so ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...65...
long as they remained with him, they were kept in safe custody and never tampered with.
.
72. Thus, even this circumstance stands proved by the prosecution. The evidence is credible, legally admissible, untampered and not hit by any provision of law.
73. We now proceed to deal with various decisions referred to by the learned counsel for the parties. r
74. The decision referred to by learned counsel for the appellant, as reported in C. Perumal vs. Rajasekaran & others, 2012 Cr. L.J. 3491 (Supreme Court) was rendered in the given facts and circumstances and does not lay down any ratio of law.
75. Reliance on Ishwar Pandurang Masram vs. State of Maharashtra, 2013 Cri. L. J. 3597 (Bombay High Court) (Nagpur Bench) to the effect that if circumstance is not put to the accused while examination under Section 313 Cr.P.C. cannot be used against him, is not applicable in the given facts and circumstances, for as we have noticed that circumstance of recovery of mobile phone ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...66...
and SIM card was in fact put to the accused (Question No.28).
.
76. Judgment referred to in State of Orissa vs. Babaji Charan Mohanty & another, (2003) 10 SCC 57 was in relation to the facts, where the Court found the prosecution story not to be artificial and improbable despite the prosecution case, solely resting on the testimony of solitary eye witness, fully inspiring in confidence.
77. In Prabhoo vs. State of Uttar Pradesh, AIR 1963 SC 1113, Hon'ble the Supreme Court of India, was dealing with a case where accused produced incriminating articles such as clothes and axe. Recovery of such articles was not pursuant to any "statement relating to recovery". It is in this background, Court held that the incriminating statement of handing over of weapon of offence to be hit by the provisions of Sections 25 and 26 of the Evidence Act, not being a statement leading to discovery within the meaning of Section 27 of the Evidence Act.
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78. In Jaffer Husain Dastagir vs. The State of Maharashtra, AIR 1970 SC 1934, where prior to the .
disclosure statement being made by the accused, police were aware of a relevant fact, the Court held discovery of such fact not to be as a consequence of disclosure statement. To similar effect is decision rendered by Hon'ble the Supreme Court of India, in Thimma vs. The State of Mysore, AIR 1971 SC 1871.
79. rJudgment relied upon by the learned counsel for the appellant in Kora Ghasi vs. State of Orissa, (1983) 2 SCC 251 is in peculiar facts and circumstances and not applicable in the present case.
80. Seeking reliance on Budh Ram vs. State of Himachal Pradesh, Latest HLJ 2010 (HP) 58 and Koli Trikam Jivraj & another vs. The State of Gujarat, AIR 1969 Gujarat 69 it is contended that suggestion put to the witnesses is no evidence at all and thus no inference can be drawn against the accused that he admitted the fact referred to in the suggestions. Reliance on the decisions is misconceived for prosecution has proved its case, in ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...68...
the affirmative, by leading clear, cogent and convincing piece of evidence.
.
81. In State of U.P. v. Ramesh Prasad Misra, [(1996) 10 SCC 360: AIR 1996 SC 2766], Hon'ble the Supreme Court of India, has held that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with either case of the prosecution, or that of the defence, may be relied upon. Position stands reiterated in C. Muniappan vs. State of Tamil Nadu, (2010) 9 SCC 567: AIR 2010 SC 3718; Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36; and Ramesh Harijan vs. State of U.P., (2012) 5 SCC 777: AIR 2012 SC 1979.
82. Therefore, law permits the court to take into consideration deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...69...
judicial scrutiny. [See: Rohtash Kumar vs. State of Haryana, (2013) 14 SCC 434].
.
83. In the instant case, testimony of Rachpal Singh, father of the accused, on material facts, is relevant, reliable and believable. Though initially he did support the prosecution, but lateron was declared hostile and cross examined by the Public Prosecutor. We find that he has not supported the prosecution with regard to the events which took place on 1st and 2nd of March, 2010 at Panchkula and Dhalli, which in any event, stand conclusively established by other credible evidence. His testimony with regard to the conduct of the accused and the events which took place on 22.2.2010 and 25.2.2010, is evidently clear, fully inspiring in confidence and has been rightly relied upon by the prosecution. Witness feigned ignorance about the contents of complaint (Ext.
PW-5/B) but admitted his signature thereupon. He is an educated person and we see no reason as to why he would sign document without reading the same.
84. The term "witness", means a person who is capable of providing information by way of deposing as ::: Downloaded on - 15/04/2017 17:31:40 :::HCHP ...70...
regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or .
otherwise. In Pradeep Narayan Madgaonkar vs. State of Maharashtra, (1995) 4 SCC 255, Hon'ble the Supreme Court of India, examined the issue of requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court herein held, the same to be subjected to strict scrutiny. It stood clarified that evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible, corroboration of their evidence on material particulars, should be sought. [See: Paras Ram v. State of Haryana, (1992) 4 SCC 662: AIR 1993 SC 1212; Balbir Singh v. State (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI) (1997) 8 SCC 732: AIR 1998 SC 201; M.Prabhulal v. Directorate of Revenue Intelligence (2003) 8 SCC 449; and Ravindran v. Superintendent of Customs (2007) 6 SCC 410: AIR 2007 SC 2040].
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85. A witness is normally considered to be independent, unless he springs from sources which are .
likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. There can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.
[See: Rohtash Kumar vs. State of Haryana, (2013) 14 SCC 434] r
86. Here the testimonies of police officials, who conducted the investigation in a free and fair manner, are fully inspiring in confidence. They have no reason to falsely implicate the accused. Information received from ASI Rakesh Kumar (PW-36) was reduced into writing by ASI Sapinder Singh (PW-39) vide daily diary report (Ext.
PW-9/A), leading to investigation of the case.
87. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that accused committed murder of deceased Simarjit Kaur.
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88. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial .
Court. Findings of conviction cannot be said to be erroneous or perverse. Hence, the appeal is dismissed.
Appeal stands disposed of, so also pending application(s), if any. Records of the Court below be immediately sent back.
r to (Sanjay Karol),
Judge.
( P. S. Rana ),
January 8, 2015(sd/pk) Judge.
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