Himachal Pradesh High Court
State Of Himachal Pradesh vs Joginder Singh on 19 May, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 250 of 2009 .
Judgment reserved on: 06.05.2016 Date of Decision :19.05.2016 __ of State of Himachal Pradesh .....Appellant Versus Joginder Singh rt ...Respondent __ Coram:
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur.
Whether approved for reporting?1 Yes.
For the appellant : Mr. P.M. Negi, Deputy Advocate General.
For the respondent : Ms. Kanta Thakur, Advocate.
Vivek Singh Thakur
1. Aggrieved by acquittal of respondent-accused vide judgment dated 12.11.2007, passed by learned Additional Sessions Judge, Fast Track Court, Kullu, District Kullu in Sessions Trial No. 7 of 2008, in case FIR No. 411 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 2
/2007 dated 27.07.2007 registered under Section 302 of the Indian Penal Code in Police Station Kullu, District .
Kullu, H.P., the State has preferred present appeal with prayer to set aside impugned judgment and to convict respondent-accused under Section 302 of the Indian Penal of Code.
2. Heard. Mr. P.M. Negi, learned Deputy rt Advocate General for the appellant-State has advanced arguments that there is sufficient evidence on record to prove the guilt of respondent-accused under Section 302 of the Indian Penal Code and prayed for allowing the appeal whereas Ms. Kanta Thakur, legal aid counsel for the respondent-accused has submitted that prosecution has failed to prove the case beyond reasonable doubt and there is no circumstance incriminating respondent-accused and has sought dismissal of the appeal.
3. As per prosecution story, on 23.07.2007 respondent-accused Joginder Singh had telephonically informed PW-2 Guddu that his brother Virender had been murdered and had asked to inform PW-19 Sher Singh, elder ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 3 brother of respondent-accused about this incident. PW-2 Guddu had informed PW-19 Sher Singh and his family. PW-
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2 Guddu, PW-19 Sher Singh, Amar Singh and Murtu Devi had reached in the house of deceased Virender at about 2.30 AM. Many villagers had already assembled there. At of about 4.00 AM, PW-19 Sher Singh had telephonically informed PW-3 Rajesh Kumar Vice President of Gram rt Panchayat Benchi regarding incident. PW-3 Rajesh Kumar had gone to Police Station, Kullu at about 6.00 AM to report the incident personally as his telephone was out of order.
On the basis of information supplied by PW-3 Rajesh Kumar rapat No. 24, dated 24.07.2007 Ex. PP was recorded in Police Station, Kullu.
4. PW-22 SI Dorje Ram, PW-17 ASI Shiv Singh, PW-20 HC Ram Krishan, LHC Constable Sunil Kumar and Diwan Singh went to the spot where dead body of Virender was laying on the floor of the room. Four teeth, hair and blood stained bricks were also lying there. Brick wall had collapsed and cot was lying in broken condition in the room.
Police took into possession teeth, hair, spectacle, five pieces ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 4 of bricks from spot vide memo. Ex. PA. Chilli powder lying near dead body was also taken into possession vide Ex. PE.
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Blood samples were also lifted from floor of the room vide memo. Ex. PF. Photographs taken on spot are Ex.P-20 to Ex.P-49 developed from negatives Ex. P-50 to Ex.P-79.
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5. As per prosecution, inner wear of respondent-
accused Joginder Singh was found torn and the same was rt taken into possession vide Ex. PN and his pants found hanging on rope in roof of his house were also taken into possession vide memo. Ex. PM. Two mobile sets stated to be handed over to police by respondent-accused Joginder Singh were also taken into possession vide memo Ex. PD.
During investigation, respondent-accused Joginder Singh had made disclosure statement Ex. PO under Section 27 of the Indian Evidence Act in presence of Pratap Negi to the effect that clothes worn by him at the time of incident were washed and kept in the room and he could get the same recovered and, therefore, clothes were recovered vide memo. Ex. PZ.
::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 56. Case property taken into possession on 24.07.2007 was deposited in Malkhana through PW-7 HC .
Usha, next day, who had handed over charge to MHC PW-20 Ram Krishan. PW-20 HC Ram Krishan had sent parcels to SFSL Jugna vide RC No. 194/07 through PW-9 of constable Jai Krishan and has also sent case property to CFSL Chandigarh through PW-21 constable Teja Singh vide rt RC No.198/07 dated 01.08.2007.
7. Postmortem of the deceased was conducted by PW-8 Dr. Rajesh Thakur on 24.07.2007. He has opined that deceased died as a result of head injury and hypovolaemia because of excessive blood loss from scalp and right kidney.
Probable time between death and postmortem was opined less than 24 hours and death was instantaneous on receiving injury.
8. PW-11 Inder Singh Kanungo and PW-15 Tek Singh Patwari had prepared Tatima of the spot Ex. PJ and had issued Nakal Jamabandi Ex.PL of the spot.
Respondent-accused was medically examined by PW-18 Dr. Palzore. Multiple bruises on the left side of abdomen ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 6 extended from umbilicus to left nipple were found on his body. Sample of hair of respondent-accused Joginder Singh .
with roots was taken and handed over to police for the purpose of DNA test. MLC of respondent-accused Joginder Singh is Ex. PR. Respondent-accused Joginder Singh and of deceased were real brothers. Third brother PW-19 is Sher Singh.
9. rt There is no direct evidence in the present case and prosecution case is based on circumstantial evidence supported by disclosure statement of respondent-accused.
10. It is settled law that in case of circumstantial evidence conviction should be recorded only if the chain pointing to the guilt of accused is firmly established linking accused with crime firmly and not only creating suspicion as suspicion however strong evidence itself may not take place of proof. All the circumstances must be consistent only with hypothesis of the guilt.
11. Though, murders are also committed even without any pre-emptive motive, however in cases based ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 7 on circumstantial evidence motive is also an important factor and a strong circumstance.
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12. Prosecution has examined 22 witnesses to prove guilt of respondent-accused. Postmortem report issued by PW-8 Dr. Rajesh Thakur and Medico Legal Certificate of of respondent-accused issued by PW-18 Dr. Palzore and taking of hair sample are not in dispute. Statements of PW-1 rt Shalu, PW-2 Guddu and PW-6 Pushpa do not disclose any incriminating substance against the respondent-accused and they were not even cross examined by defence counsel.
13. PW-3 Rajesh Kumar and PW-4 Kirna Devi, PW-5 Pratap Singh, PW-11 Mohar Sing and PW-19 Sher Singh have not supported prosecution case and have turned hostile who were subjected to cross examine by learned Public Prosecutor but nothing incriminatory against respondent-accused Joginder Singh has been extracted in cross examination. These witnesses were examined by prosecution to prove chain of circumstances against ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 8 accused. However none of these witnesses supported prosecution case.
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14. PW-5 Pratap Singh and PW-13, Devi Singh are witnesses to the disclosure statement made by the respondent-accused Joginder Singh in Police Station, Kullu of on 27.07.2007. Though PW-5 Pratap Singh and PW-13 Devi Singh have stated that on 27.07.2007, respondent-accused rt had made disclosure statement in their presence which was reduced into writing vide memo. Ex. PO. However, the recovery of lower wear and T. Shirt in pursuance to the said disclosure statement has not been proved as witnesses PW-3 Rajesh Kumar and PW-19 Sher Singh to the recovery memo. Ex. PZ have denied the fact of recovery in their presence rendering this piece of evidence doubtful.
Therefore, disclosure statement Ex. PO and recovery memo. Ex. PZ cannot be considered a reliable, convincing and sufficient evidence to connect respondent-accused Joginder Singh with murder.
15. PW-7 HC Usha and PW-20 HC Ram Krishan were MHC who have deposed regarding depositing of case ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 9 property in Malkhana and sending of parcels to SFSL Junga and CFSL Chandigarh through PW-9 HHC Jai Krishan and .
PW-21 Constable Teja Singh. PW-10 Inder Singh Kanungo and PW-15 Tak Singh Patwari had prepared and issued Jamabandi and Tatima of the spot.
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16. PW-14 constable Ved Ram had recorded report No. 1, Ex. PP on 24.07.2007 on information given by PW-3 rt Rajesh Kumar. PW-16 Inspector Sarwan Kumar Shanu has prepared challan. PW-17 had been accompanying the Investigating Officer PW-22 SI Dorje Ram during investigation on 24.07.2007.
17. Prosecution has also examined PW-12 Shanu. He and his father were running hotel (Prem Dhaba) in rented accommodation in the village of deceased. He has deposed that one year ago at about 7.00 PM, he and his father were sitting in hotel. At that time deceased Virender alongwith some persons had come to their hotel carrying bottles of beer to have momos when PW-12 Shanu and his father were going to close the hotel. They had provided momos to deceased Virender. As per this witness Virender and his ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 10 companion were already intoxicated and were carrying beer bottle and they consumed beer in their hotel with momos .
and at about 9.30 PM they left the hotel. Statement of this witness further casts doubt on the prosecution story. No person accompanying deceased Virender has been of identified and/or examined as a witness in the present case.
The statement of PW-12 runs counter to the hypothesis of rt prosecution rather it is a blow on prosecution case.
18. The prosecution has not led any evidence establishing or indicating 'motive' for committing offence by respondent-accused. The present case can be considered as a case of no evidence against respondent-accused.
Therefore, statements of PW-22 Dorje Ram is of no significance for the purpose of determining the guilt of respondent-accused.
19. Ex. PA/E and Ex. PA/F are chemical analysis reports received from FSL, Junga, Himachal Pradesh. Hair of deceased Virender lifted from the floor, beneath dead body and recovered from the spot were found to be human head hair and same were similar to each other. However, ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 11 hair of Joginder Singh were different from these hair.
Therefore, hair on the spot were not of respondent-accused .
Joginder Singh. As per Chemical examination's report blood group 'O' was detected on the pants alleged to be recovered at the instance of Joginder Singh which was of similar to blood group found on teeth, bricks, blood sample of Virender and bandage piece. However, there is no rt reliable, credible and cogent evidence on record linking the said pants with respondent-accused. Therefore, chain to connect the pants with respondent-accused Joginder Singh is also not complete.
20. It is evident from the aforesaid discussion that chain of circumstantial evidence to prove the guilt of the respondent-accused is incomplete and prosecution evidence cannot be treated as cogent, reliable credible and sufficient to prove the guilt of respondent-accused beyond reasonable doubt.
21. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 12 dislodge the same, onus heavily lies upon the prosecution.
The accused has been acquitted by the trial Court.
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22. Their Lordships in case Chandrappa and others Versus State of Karnataka, (2007) 4 Supreme Court Cases, 415 have held as under:-
of "42 From the above decisions, in our considered view, the following general principles regarding rt powers of appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 13
Such phraseologies are more in the nature of 'flourishes of language' to emphasize the .
reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
of (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the rt presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court".
"43. Applying the above principles to the case on hand, we are of the considered view that the learned counsel for the accused is right in submitting that the ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 14 High Court ought not to have disturbed an order of acquittal recorded by the trial Court. For acquitting the .
accused and extending them the benefit of doubt, the trial Court observed that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. The trial Court indicated that the root cause of the quarrel was of refusal to exchange copper vessel (Kolaga) to Nagraj, winner of the draw, but he was not examined. Likewise, rt Krishnaiah, son of Oblaiah, who accompanied injured (deceased) Anjaniappa to the hospital, was not brought before the Court. Though it is in evidence that Accused No. 1 Chandrappa was injured and was also taken to the hospital alongwith Anjaninappa, some witnesses had denied the fact as to injuries sustained by the Accused No. 1. The High Court did not give much weight to the said circumstance observing that Accused No. 1 was neither examined by a doctor nor a cross-complaint was filed by him against the prosecuting party. In our view, the submission of the learned counsel for the appellants is well founded that it is not material whether Accused No. 1 had or had not filed a complaint or he was or was not examined by a doctor, but the fact that even though it was the case of prosecution that Accused No. 1 was injured during the course of incident, prosecution witnesses tried to ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 15 suppress that fact which would throw doubt as to the correctness of the case or the manner in which the .
incident had happened. The trial Court had also stated that it was unnatural that the prosecution witnesses and deceased Anjaninappa could have gone to Hanumanthapura Bypass at about 9.30 p.m. when a shorter route was available for going to their of destination. The trial Court observed that there was inconsistency in prosecution evidence as to availability of electric light at the time of incident. The Court also rt noted that the knife produced before the Court as mudamal article was not the same which was used by Accused No. 8 for inflicting injury on the deceased. There was also no consistency in evidence as to injuries sustained by prosecution witnesses".
23. Learned trial court has correctly and completely appreciated the evidence and acquittal of the accused has not resulted into travesty of justice or has caused mis-
carriage of justice.
24. After considering arguments of respective counsel for the parties and minutely examining the testimonies of the witnesses and other documentary evidence placed on ::: Downloaded on - 15/04/2017 20:23:22 :::HCHP 16 record, we are of the considered view that no case for interference is made out.
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25. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of of the Court below be sent back immediately.
rt (Rajiv Sharma),
Judge.
(Vivek Singh Thakur),
Judge.
May 19, 2016
(brb)
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