Himachal Pradesh High Court
Balbir Thapa vs State Of Himachal Pradesh on 20 August, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.72 of 2015 Judgment reserved on: 9.8.2016 .
Date of Decision: August 20, 2016 Balbir Thapa ...Appellant.
Versus State of Himachal Pradesh ...Respondent. Coram:
of The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.Whether approved for reporting? Yes. 1
rt For the Appellant : Mr. Satyen Vaidya, Senior advocate, Amicus Curiae, with Ms Shalini Thakur, Advocate, Legal Aid Counsel.
For the Respondent : Mr. Vikran Thakur & Mr. Puneet Rajta, Deputy Advocates General.
Sanjay Karol, Judge Appellant-convict Balbir Thapa, hereinafter referred to as the accused, has assailed the judgment dated 23.12.2014/27.12.2014, passed by Additional Sessions Judge-I, Solan, District Solan, Himachal Pradesh, in Sessions Trial No.19-NL/7 of 2012, titled as State of Himachal Pradesh v. Balbir Thapa, whereby he stands convicted of the offence punishable under the provisions of Section 302 of the Indian Penal Code.
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:02:39 :::HCHP
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2. According to the prosecution, on 13.1.2012 at about 8/9 p.m., accused murdered his wife deceased Poonam, with an electric wire. Thereafter, he informed her .
parents that the deceased had committed suicide, by hanging herself from a fan in one of the rooms in his house. Motive of crime being a quarrel, which took place same day at about 3 p.m., between the husband and wife.
of Though police learnt about the incident and reached the spot in the night intervening 13th and 14th January, 2012, rt when no one doubted involvement of the accused in the crime nor any incriminating substance was found on the spot. But however, on 18.1.2012, when a complaint came to be lodged by Ram Bahadur (PW-5), father of the deceased, police visited the house of the accused and recovered the incriminating article, i.e. weapon of offence, which further unfurled the truth in the shape of recording of statements of independent witnesses with whom the accused had confessed of having disclosed the cause of death to be suicide by hanging from a fan.
3. While convicting the accused, trial Court found
(a) the deceased to have died not as a result of hanging but strangulation, which fact was proved by Dr. Gagan Jain ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...3...
(PW-8), (b) accused was lastly seen in the company of the deceased, to have been established by Phool Chand (PW-
4) and Arshad Khan (PW-16), (c) marks of injury found on .
the body of the accused, were only suggestive of the fact of struggle having taken place at the time of commission of crime, (d) recovery of weapon of offence, i.e. "wire of press" by the police vide Memo (Ex.PW-3/A) and absence of of blood/skin tissue thereupon to have be sufficiently explained by the Expert (PW-8), (e) plea of alibi taken by
4. rt the accused to be false and not believable,.
Correctness of the reasoning adopted and the findings returned by the trial Court are subject matter of challenge before this Court.
5. Undisputedly, there is no eye-witness to the crime. As is so required under law, trial Court has not specifically culled out the circumstances. However, before us, in support of the judgment, following circumstances are pressed against the accused: (a) deceased and the accused were residing together as husband and wife in a rented accommodation in village Judikalan, Tehsil Baddi, District Solan, Himachal Pradesh, (b) on 13.1.2012, being a Lohari Day, after consuming alcohol, accused quarreled ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...4...
with the deceased, which fact she disclosed to her parents, i.e. mother Phulma (PW-1) and father Ram Bahadur (PW-
5), (c) dead body was recovered from the house of the .
accused, (d) accused misled and misdirected the investigation by falsely informing Arshad Khan (PW-16), parents of the deceased and Investigating Officer ASI Pradeep Singh (PW-14) that the deceased had committed of suicide by hanging herself from the fan, (e) accused took a false plea of alibi by claiming not to be home at the time of rt crime, (f) recovery of electric press and cord (wire) (Ex.P-
1) and a string (Ex.P-2) from the house of the accused, with which the accused allegedly strangulated the deceased, vide Memo (Ex.PW-3/A) in the presence of Avjit Roy (PW-3) and Phool Chand (PW-4), (g) Postmortem report (Ex.PW-8/A) proven by Dr. Gagan Jain (PW-8) establish the fact that the deceased did not die of hanging, but on account of strangulation, which could have been with the use of cord (Ex.P-1).
6. At the threshold, we must state certain facts, which are undisputed by the prosecution: (a) accused and deceased were residing in a rented accommodation of a building in which 60 other families were also residing.
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Their involvement has not been ruled out, (b) it was the accused who had informed the parents of the deceased about the factum of her death, (c) accused did not flee .
away from the spot.
7. There is one more fact, which stands admitted by the parents/brother of the deceased and that being that in the adjoining accommodation, 2-3/4-5 young boys were of also residing, who, in the absence of the accused, had been harassing her, about which she had been repeatedly rt telling her parents. It has come on record that since the time of crime, all of them were found to be missing.
8. We shall first examine as to whether the defence/plea of alibi taken by the accused stands falsified on record or not. In his statement, under the provisions of Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code), accused has taken the following defence:
"I am innocent. I was on duty on the day of alleged incident right from 9:00 a.m. to 8:30 p.m. including overtime. I went to my quarter and found door closed. I opened the door and found my wife lying on the cot in dead condition and my daughter was weeping. In the adjoining room of the building, few boys were residing. They earlier teased my wife and those boys absconded from the day of incident. My wife was killed by them."::: Downloaded on - 15/04/2017 21:02:39 :::HCHP
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9. Sub-section (3) of Section 313 of the Code reads as under:
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"(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them."
10. It is a settled principle of law that prosecution must stand or fall on its own legs. It cannot derive any of strength from the weakness of the defence. Only and only where the prosecution has been able to establish various rt links in the chain to be complete, it shall be open for the prosecution to press and rely upon the plea of false defence and that too as an aid only to lend credence to the prosecution case. It is just an additional link. It is not the law that where there is any infirmity or lacuna in the prosecution case, it can be cured or supplied by a false defence or a plea which is not accepted by the Court. The circumstance from which a conclusion of guilt is to be drawn should be fully established. The facts where prosecution case is based on circumstantial evidence must be so established, which are consistent only with the hypothesis of the guilt of the accused and no other hypothesis except that the accused is guilty and that the ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...7...
circumstances are conclusive in nature and tendency should be such so as to exclude any hypothesis except the one which is sought to be proved and that the chain of .
evidence is so complete so as not to leave any reasonable ground for a conclusion, consistent with the innocence of the accused and that within all human probability, the act must have been done only by the accused. These of principles stand reiterated by the apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC rt 116, wherein the Court also observed as under:
"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J, (and concurred by 3 more Judges ) in King v. Horry, (1952) NZLR 111. Thus:
Before he can be convicted, the fact of death should be proved by such circumstances a render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury tat upon no rational hypothesis other than murder can the facts be accounted for.
156. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain.' ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...8...
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's .
case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay, 1960(2) S.C.R. 460. Lagu's case as also the principles enunciated by this Court in Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases - Tufail (Alias) Simmi v.
of Sgtate of Uttar Pradesh, 1969(3) S.C.C. 198, Ramgopal v. State of Maharashtra, A.I.R. 1972 S.C. 656, Chandrakant Nyalchand Seth v. State of Bombay, Criminal Appeal No. 120 of 1957 rt decided on 19-2-1958, Dharambir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958 decided on 4-11-1958. There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Nassem Ahmed v. Delhi Administration, 1974(2) S.C.R. 694, 696, Mohan Lal Pangasa v. State of U.P., A.I.R. 1974 S.C. 1114, 1146, Shankarlal Gyarasllal Dixit v. State of Maharahatra, 1981(2) S.C.R. 384, 390 and M.G. Agarwal v. State of Maharashtra, 1963(2) S.C.R. 405, 419 - a five Judge Bench decision.
158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, (1955) 2 S.C.R. 570, 582 to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...9...
relevant portion of which may be extracted thus :
"But in a case like this where the various links as stated above have been .
satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation ................,such absence of explanation or false explanation would itself be an additional ink which completes the chain."
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159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to rt be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case where this Court observed thus:
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"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance .
if other circumstances point unfailingly to the guilt of the accused."
161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case. Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the of additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is rt complete added to it merely to reinforce the conclusion of the Court. When the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General.
162. Moreover, in M.G. Agarwal's case, this Court while reiterating the principles enunciated in Hanumant's case observed thus;
If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.
In Shankarlal's (supra) this Court reiterated the same view thus:
Legal principles are not magic incantations and their importance lies ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...11...
more in their application to a given set of facts than in their recital in the judgment.
163. We then pass on to another important point which seems to have been completely .
missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, (1973)2 S.C.C. 808 this Court made the following observations:
of Another golden thread which runs through the web of the administration of justice in criminal cases is that if two rt 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 wherein the guilt of accused is sought to be established by circumstantial evidence."
(Emphasis supplied)
11. Further, the apex Court in Musheer Khan alias Badshah Khan and another v. State of Madhya Pradesh, (2010) 2 SCC 748, has reiterated the aforesaid principles in the following terms:
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...12...
is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once .
observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, rt certain rules have been judicially evolved for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. {See Raghav Prapanna Tripathi and others vs. State of U.P., 1963 AIR(SC) 74}.
42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. {See: State of UP vs. Ravindra Prakash Mittal, 1992 CrLJ 3693 (Para 20)}
43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali vs. Emperor,43 IndCas 241 at para
14) that when in a criminal case there is ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...13...
conflict between presumption of innocence and any other presumption, the former must prevail.
44. The next principle is that in order to justify .
the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and is incapable of explanation upon any other reasonable hypothesis except his guilt."
Also, the Court has further held that:
"45. When a murder charge is to be proved of solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy vs. King Emperor, 11 CWN 1085 it was rt held the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence."
(Emphasis supplied)
12. Assuming that the accused had misled and misdirected the investigation or taken a false plea in his statement, under the provisions of Section 313 of the Code, we find the trial Court to have formed its opinion ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...14...
solely thereupon, by ignoring the aforesaid principles of law.
13. There is yet another reason, why we find the .
reasoning adopted by the trial Court, holding the plea of alibi false, to be perverse, and that having failed to appreciate the testimony of Dashrat Singh (DW-1) and the record produced by him, in totality. In fact, he has of misconstrued and misappreciated the evidence led by the accused.
14. rt Dashrat Singh is the Labour-supplier Mate, under whom the accused was working. Accused was posted as an Operator in a Unit known as 'Baouji Foot Fashion'. This witness has proved on record Attendance Card (Ex.D-1) and the Daily Attendance Register (Ex.D-2), for the month of January, 2012, which reveals that the accused had been attending to his work till 13.1.2012. It also reveals that from 1st till 13th January, 2012, the accused had put in extra hours. Now this document (Ex.D-
2) is totally in consonance with the testimony of Dashrat Singh, according to whom, even though duty hours of the accused were 9 am to 5.30 p.m., but however, on 13.1.2012 he had worked for three extra hours. Yes, in ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...15...
the cross-examination part, he admits that in the document at a place encircled 'B' in red, there is overwriting, but then it would not make any difference, for .
the column pertaining to the month, which is January, there is no overwriting at all and if one were to calculate the number of hours, which the accused had put in, its total would come to 27 hours, which is correctly recorded of at a place encircled 'A', which in fact stands corroborated by document (Ex.D-1), being the Attendance Card of the rt accused. Crucially, the learned Public Prosecutor did not even suggest it to the witness that on the fateful day, accused was not on duty at all. Absence thereof acquires significance, in view of the fact that the prosecution wants the Court to believe that on 13.1.2012, on account of celebration of Lohari, accused, during the day, had consumed alcohol and quarreled with his wife, which fact the deceased had disclosed to her parents and brother.
15. There is yet another fact in the testimony of this witness, which the trial Court failed to notice, while forming its opinion that the accused could have sustained injuries, as a result of struggle, at the time of commission of crime. In his unrebutted testimony, this witness has ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...16...
categorically deposed that on 12.1.2012, the accused had quarreled with another employee, namely Deepak, which led the accused in suffering scratches on his face.
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16. At this juncture, we must take into account testimony of Dr. Sunita Sood (PW-7), the doctor who examined the accused, who found the scratch marks, as per MLC (Ex.PW-7/A) may have been caused with a blunt of weapon and sustained prior to 42 hours of his examination.
17. rt In this backdrop, we find the accused to have probablized his defence of having sustained the injuries.
Also, it cannot be said that the accused took a false plea of alibi.
18. Uninfluenced of our aforesaid observation, we proceed to independently examine the prosecution case.
19. The fact that accused was married to the deceased is not disputed before us. In fact, it stands established by Phulma (PW-1), Mangal Singh (PW-2), Avjit Roy (PW-3), Phool Chand (PW-4), Ram Bahadur (PW-5) and Arshad Khan (PW-16). From the conjoint reading of their testimonies, it is evidently clear that the accused was in love with the deceased and that prior to the incident in ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...17...
question no incident of quarrel of whatsoever nature, ever came to be reported by deceased, either to her parents or anyone else, including the neighbours. Also, at some point .
in time, the deceased, who was actually a native of Nepal, had left for her native village and only on the asking of the accused, returned to stay with him at Nalagarh.
20. That the dead body was recovered from the of house of the accused is also not disputed before us. ASI Pradeep Singh is categorical that one Abhijeet (perhaps PW-3) incident.
rt telephonically informed the police This was in the night intervening 13th & 14th about the January, 2012, at about 12.45 a.m. Hence, he immediately rushed to the spot and after reaching within 10 minutes, found the dead body in a lying position inside the house of the accused, who was also present.
21. The fact that ASI Pradeep Singh, after preparation of the inquest report, had sent the dead body for postmortem, which was conducted by Dr. Gagan Jain, also stands proved on record. In Court, the said doctor is of a definite opinion that death was caused due to asphyxia, as a result of strangulation and not by hanging.
Noticeably, postmortem report does not record any ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...18...
external injuries, except for two ligature marks (1st 30 cm long & second 28 cm long). Be that as it may, the cause of death stands established beyond reasonable doubt.
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22. We may also observe that the identity of the deceased is not in dispute.
23. The fact as to whether under the influence of liquor, accused quarreled with the deceased on the fateful of day or not is the next circumstance pressed by the prosecution. To establish the same, our attention is rt invited to the testimonies of Phulma, Mangal Singh and Ram Bahadur. Noticeably, none of the neighbours, including Avjit Roy, Phool Chand and Arshad Khan, have disclosed such fact. Incident of quarrel was also neither noticed nor observed/ reported by any of the neighbours to the police, who happened to reach the spot the very same night. Significantly, this fact never came to be reported even by the relatives of the deceased same day.
To us, it appears to be an afterthought. Also, except for bald assertion on the part of these witnesses, there is no other link evidence establishing such fact on record. No glass or bottle of liquor was found in the house of the accused or recovered by the police. From where did the ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...19...
accused get the liquor has remained unestablished on record.
24. All that Phulma states is that at about 4.30 .
p.m., she received a phone call from the deceased, who weepingly told her that accused, who was drunk, was beating her. On her asking, deceased handed over the phone to the accused, and when confronted, he of threatened the deceased, questioning as to why she had complained to her mother. Thereafter, the phone came to rt be disconnected. This is all that she states in her examination-in-chief. But however, when we examine the cross-examination part of her testimony, we find her to have been confronted with her previous statement (Ex.PW-
14/F-1), so recorded by the police, wherein such fact never came to be recorded. Not only we find this version of hers to be an exaggeration and improvement but also not to have been supported by the prosecution by way of corroborative evidence. No phone or call logs were ever recovered or taken into possession by the police to establish the factum of any telephonic conversation having taken place between the deceased and this witness. Also, when we peruse statement (Ex.PW-14/F-1), we find a ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...20...
totally different version to have been stated by her and that being, the accused who had been drinking since morning, was in fact fighting with his younger brother, who .
remained unexamined in Court. The factum of quarrel inter se the husband and wife and alleged beatings, is absolutely missing therein.
25. On this count, we find the testimony of Mangal of Singh to be hearsay in nature. He only narrates what was so disclosed to him by his mother Phulma. Additionally, rt we find him not to have immediately disclosed such fact to the police.
26. But, Ram Bahadur has a totally different version to state. He wants the Court to believe that it was he, and not his wife, who had received the phone call, though he does state that his wife also had conversation with the deceased. His version is not only contradictory to that of Phulma and hence not believable, also for the reason that he never came to disclose such fact to the police at the first instance. In fact, in his statement under the provisions of Section 154 of the Code, which the Investigating Officer wants the Court to believe to have been recorded correctly, he is categorical that the ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...21...
telephonic conversation took place not between him and the deceased but between the deceased and his wife, which fact is also so recorded in the FIR.
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27. Hence, to our mind this circumstance cannot be said to have been proven at all by the prosecution.
28. In our considered view, the trial Court totally lost sight of the fact that there was inordinate delay of of more than five days in lodging the FIR. It is not that the parties hail from the remotest corner of the State; are rt socially backward or illiterate. It is also not that they did not have any access to the judicial process or machinery provided by law. The complainant is a Government employee and was familiar with the procedures of law. It is not that the accused, in any manner, tried to influence the complainant or any one of his family members. Ram Bahadur does try to explain the delay, by stating that he was under shock and grief. Hence, the matter could not be reported to the police promptly. We do not find this explanation to be convincing for the simple reason that this witness, a Government employee, reached the house of the deceased after three days, by which time, perhaps not only cremation was over, but then fact of the matter is ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...22...
that Phulma and Mangal Singh immediately reached the spot and were in constant touch with the police. In fact, Phulma is categorical that from the day she learnt about .
the death, till 17.1.2012, she had been regularly visiting the Police Station. In fact, Mangal Singh is also categorical that police officials had met him on 16.1.2012 and 17.1.2012. None of them pointed any finger of suspicion of or the factum of the accused having murdered the deceased. It is not that police was siding with the accused.
rtOn this count, we also find even Phool Chand and Arshad Khan not to have disclosed the incident to anyone, including the police. But what totally knocks down the prosecution case is the admission made by Ram Bahadur that the FIR came to be lodged on the "basis of suspicion" and "not positive information". Hence, in the instant case, we find the delay not to have been sufficiently explained by the prosecution, which according to us is fatal to the prosecution case.
29. To bring home the guilt of the accused with regard to the occurrence of the incident, our attention is invited to the testimony of Phool Chand and Arshad Khan.
Now, Phool Chand wants the Court to believe that on ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...23...
14.1.2012, one Tilak (perhaps brother of the accused) came to his room at 9.30 p.m. and informed that "Chachu Jo Nahi Hona Tha Wo Ho Gaya" and when enquired he .
answered "Chalo Khud Dekh Lo". When he went to the room of the accused, he saw the body of the deceased lying and the accused sitting next to her. At that time, accused stated that "Chachu Isne Fanda Laga Liya". He of remained mum and returned to his room. However, at about midnight, Avjit Roy came to his room and knocked rt at his door, which out of fear he did not open. One person residing with Avjit Roy made a phone call informing that a murder had taken place. As such, when he opened the door, he was told that police had reached the spot. This witness, to us, is wholly unreliable and his version unbelievable. Having come to know about death, why would he return to his room. What did he fear about. After all, he was close and treated as an uncle (Chachu).
30. We find such facts not to have been disclosed by him in his statement (Ex.PW-14/F-3), with which he was confronted. That apart, death had taken place in the night intervening 13th & 14th and not 14th January, as he wants the Court to believe. Though he admits the police to have ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...24...
been continuously visiting the spot on daily basis till 18.1.2012, yet he never disclosed anything to anyone.
Why so? remains a mystery. In fact, this witness, pointing .
a finger of suspicion, has rendered the prosecution case to be doubtful by stating that 3-4 boys, who were residing adjoining to the room of the accused, were found missing since the day of the incident.
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31. In the instant case, we find that except for the alleged quarrel, no motive is ascribed to the accused.
32. rt The next circumstance linking the accused to the crime is recovery of the incriminating articles, i.e. weapon of offence from the house of the accused.
33. At the threshold, we must point out that police itself is not certain as to what was the weapon of offence, for inquest report so prepared by ASI Pradeep Singh is indicative of the fact that perhaps deceased died as a result of strangulation with Dupattas (Ex.E/6), two in number, tied together. These Dupattas were sent to the Forensic Science Laboratory for chemical analysis and as per the report of the expert, no signs of blood/skin tissues were found thereupon. But now the prosecution wants the Court to believe that the deceased was strangulated not ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...25...
with the Dupatta but with the cord (wire) of an electric iron press (Ex.P-1). Now, it is not the case of prosecution that such fact ever came to be disclosed by the accused during .
interrogation. No statement was ever recorded. It is also not the case of prosecution that discovery of these articles is pursuant to any such disclosure statement.
34. However, when we peruse the testimony of of Phulma, it is quite apparent that the cord of the press so recovered by the police on 18.1.2012 was openly seen rt lying in the room where dead body was recovered. But, police did not recover these articles on that day. Why so?
remains unexplained. It is also not the case of the complainant or any one of the witnesses that these articles were used by the accused in the commission of the crime. So what prompted the police to recover the same is also not clear. This we say so for the reason that no marks of injury of whatsoever nature, except for the ligature marks, were found on the body of the deceased.
Press was never used as a weapon stands established on record. Report of the Expert (Ex.PZ) also does not establish that (a) blood or skin tissues, or (b) fingerprints ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...26...
of the accused were found on the electric cord - the alleged weapon of offence.
35. In fact, we find recovery of these articles not to .
have been established in accordance with law. In any case, we find witness of recovery of these articles {vide Memo (Ex.PW-3/A)} not to have supported the prosecution.
of
36. There is yet another circumstance, which the prosecution wants the Court to believe. And that being Jaswal rt recovery of dust particles from the fan by Dy.SP R.P. (PW-17) in the presence of Arshad Khan.
Prosecution wants the Court to believe that if the deceased had hung herself from the fan, dust particles could not have been there. Why is it that police did not take into possession the fan, itself remains unexplained by the Investigating Officer. Noticeably, the dust particles came to be collected eight days after the incident and the possibility of the same accumulating within this period has not been ruled out by the prosecution.
37. Significantly, the Investigating Officer did not totally rule out the possibility of involvement of third party in the crime, more so in the light of the version, which has ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...27...
come on record in the testimonies of the family members of the deceased, pointing finger towards the boys, being the immediate neighbours. All that the Investigating .
Officer states is that when these boys were examined, nothing came in their statements. Well obviously the boys would not have confessed to their misconduct or involvement in the crime. It was for the Investigating of Officer to have totally ruled out the possibility of their involvement in the crime.
38. rt Thus, there are improvements, contradictions, exaggerations and embellishments, impeaching the credit of the prosecution witnesses, rendering them not to be trustworthy and their testimonies to be convincing or believable.
39. Hence, from the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand ::: Downloaded on - 15/04/2017 21:02:39 :::HCHP ...28...
conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion .
of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
40. It cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing of and reliable piece of evidence so as to prove that the accused committed murder of his wife.
41. rt Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused.
42. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 23.12.2014/27.12.2014, passed by Additional Sessions Judge-I, Solan, District Solan, Himachal Pradesh, in Sessions Trial No.19-NL/7 of 2012, titled as State of Himachal Pradesh v. Balbir Thapa is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case.
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Amount of fine, if deposited by the accused, be refunded to him. Release warrants be immediately prepared.
43. Assistance rendered by Mr. Satyen Vaidya, .
learned Senior Advocate as Amicus Curiae and Ms Shalini Thakur, learned Legal Aid Counsel, is highly appreciable.
Appeal stands disposed of, so also pending application(s), if any.
of (Sanjay Karol), Judge.
rt
(Ajay Mohan Goel),
August 20, 2016(sd). Judge.
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