Himachal Pradesh High Court
State Of Himachal Pradesh vs Desh Raj And Another on 20 March, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 216 of 2015.
Reserved on : 07.03.2017.
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Decided on: 20.03.2017.
State of Himachal Pradesh. ....Appellant.
Versus
Desh Raj and another ... Respondents.
Coram
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The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the appellantrt : Mr. V.S. Chauhan, Addl. AG with Mr. Vikram Thakur, Dy. AG.
For the respondents : Mr. Vinay Thakur, Advocate.
Ajay Mohan Goel, Judge By way of this appeal, appellant/State has challenged the judgment passed by the Court of learned Additional Sessions Judge-(I), Kangra at Dharamshala, District Kangra, in Sessions Trial No. 16/2014, dated 09.01.2015, vide which, learned Trial Court acquitted the present respondents (hereinafter referred to as 'accused') for commission of offences punishable under Section 302 and 201 read with Section 34 of Indian Penal Code (in short 'IPC').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 22. The case of the prosecution in brief was that on 12.07.2012, PW2 Suresh Kumar, Pradhan of Gram Panchayat Drongu Kandi telephonically informed Police Station, .
Palampur that dead body of Bantu son of Jovan was found lying in suspicious circumstances in Kandi village behind the veterinary hospital. On the receipt of said information, SI/SHO Dandu Ram alongwith other police officials reached of the spot where many persons had also gathered. Lata Devi, wife of deceased-Rajinder Kumar was also present on the rt spot. She reported the matter to police and her statement under Section 154 of Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.') was recorded wherein she stated that she was married to the deceased in the month of December, 2006, and for the last one year, she was residing separately alongwith her children and husband and for the last about one month, her husband was working as Cleaner with the Tipper of Pradhan Suresh Kumar and the driver of Tipper was accused Vinod Kumar. Lata Devi (complainant) further mentioned in her statement that her husband had gone to work on 11.07.2012 at around 7/7:30 a.m. and that he (deceased) usually used to come back at 7/7:30 p.m. but on the said date, he did not return back at his scheduled time.
She waited for her husband the entire night however her ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 3 husband did not return back. In the morning of 12.07.2012, at around 6:00 a.m., she tried to talk with PW2 Pradhan Suresh Kumar from the Mobile phone of her mother-in-law .
but could no do so. At around 6:30 a.m., accused Vinod Kumar came to her house and inquired about her husband and she informed him that her husband had not returned back in the night. She further stated that thereafter she went of to the shop of Desh Raj and Desh Raj disclosed to her that deceased-Rajender Kumar had gone to his shop on rt 11.07.2012 and thereafter had come to his house at 7/7:30 p.m. Complainant further stated that thereafter she went ahead of the shop of Desh Raj in search of her husband and on the path which goes to Nagri, she found her husband lying in the verandah of an under construction shop of Santosh Kumar with blood oozing out from his nose and mouth. She further stated that her husband did not respond to her and there were marks of dragging of the body. She returned back to her house and disclosed the entire episode to her in-laws and returned back to the spot alongwith her father-in-law, who informed PW2 Pradhan Suresh Kumar on telephone and Suresh Kumar also came to the spot. She further stated that later on she came to know from Pradhan Suresh Kumar that her husband alongwith Desh Raj and Vinod Kumar had ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 4 consumed liquor in the room of Desh Raj on the previous evening. She further stated that she doubted that Desh Raj and Vinod Kumar had murdered her husband and had .
thereafter lifted the dead body and thrown it outside the verandah of the shop of Santosh Kumar.
3. On the basis of this statement of complainant Lata Kumari that FIR No. 129/2012 was registered at Police of Station, Palampur on 12.07.2012.
4. Further as per the prosecution, thereafter rt investigation was got conducted by SI/SHO Dandu Ram and during the course of investigation, photographs were taken, memo of dead body of the deceased was prepared and body was sent for postmortem. Other articles found at the spot were also taken into possession. Eight blood samples were taken from the spot and sealed with seal having impression 'M'. A button of the shirt of the deceased which was found in the room of accused Desh Raj was also taken into possession vide memo Ext. PW2/B. Postmortem of the dead body was got conducted. Both accused were arrested who made disclosure statements under Section 27 of the Indian Evidence Act which interalia led to the recovery of clothes which were worn by the accused at the time of commission of the offence as well as the weapon of offence i.e. the bottle with which Desh Raj hit ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 5 the deceased. Statements of witnesses under Section 161 of Cr.P.C were recorded.
5. After the completion of investigation, challan was .
filed in the Court and as a prima-facie case was found against the accused, they were charged for commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial.
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6. Learned trial Court on the basis of material produced on record both ocular as well as documentary held rt that the evidence brought on record by the prosecution was neither cogent not satisfactory nor did the same points towards the guilt of the accused. Learned trial Court held that the testimonies of prosecution witnesses were full of contradictions and improbabilities and only inference which could be drawn was that prosecution had failed to bring home the guilt of the accused beyond reasonable doubt. On these bases, learned trial Court acquitted the accused. Judgment of acquittal so returned by the learned trial Court is under challenge by way of this appeal.
7. We have heard the learned Additional Advocate General as well as learned counsel appearing for the respondents/accused. We have also gone through the records ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 6 of the case as well as the judgment passed by the learned trial Court.
8. Admittedly in the present case, there is no .
eyewitness and the entire case of the prosecution rests upon the circumstantial evidence. No one has actually seen the commission of offences with which accused have been charged. During the course of arguments learned Additional of Advocate General has culled out the following circumstances which as per prosecution link the accused with the rt commission of the offences for which they were charged.
1. Last seen together
2. Recovery of dead body
3. Disclosure Statements
4. Postmortem report
5. Motive
9. Before proceeding further, it is relevant to take note of the fact that the salient points, which have been carved out by the Hon'ble Supreme Court in a case of circumstantial evidence, on the basis of which the guilt of the accused can be brought home are as under.
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 7
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except .
that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so of complete as not to leave any reasonable ground for the conclusion consistent rt with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
10. Because present case is a case of circumstantial evidence, therefore, this Court has to satisfy its judicial conscience as to whether by way of circumstantial evidence produced on record by the prosecution, it has been able to link the accused with commission of the offences or not.
11. We will deal with each of the circumstance independently in order to satisfy ourselves as to whether the chain of circumstances as culled out by learned Deputy Advocate General links the accused with the commission of offence or not, in view of the law laid down by the Hon'ble Supreme Court.
::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 81. Last seen together:
12. As per the prosecution, this circumstance has been proved by PW1 Puroshatam and P11, complainant Lata .
Devi, wife of the deceased. A perusal of statement of PW1 Puroshatam who admittedly was the real uncle of the deceased demonstrates that he has deposed in his examination-in-chief that after he came to know about the of death of his nephew, he reached the spot where accused Desh Raj was already present and that Desh Raj confessed that on rt the previous evening, he alongwith co-accused Vinod Kumar had consumed liquor with the deceased and thereafter had given a bottle hit on the head of the deceased and had also struck the head of deceased on the wall. It has nowhere come in his deposition that he had last seen the deceased in the company of accused.
13. Now a perusal of the statement of complainant PW11 Lata Devi recorded before the learned trial Court demonstrates that she has nowhere stated that she had last seen the deceased in the company of accused. What in fact she has deposed is that when her husband did not return back home on the evening of 11.07.2012 she went to the shop of accused Desh Raj in the morning of 12.07.2012 to enquire about her husband and there Desh Raj informed her that ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 9 deceased had visited his shop and both the accused had consumed alcohol together with the deceased at around 7/7:30 p.m. on the evening of previous day and thereafter .
deceased had gone to his house. Incidentally, a perusal of statement of complainant Lata Devi recorded under Section 154 of Cr.P.C. demonstrates that all that is recorded in the said statement, which is on record as Ext. PW7/A is that on of the morning of 12.07.2012 when she went to the shop of accused Desh Raj, all that Desh Raj told her was that rt deceased had visited his shop on the previous evening but had left at around 7/7:30 p.m. It is not recorded in the said statement that Desh Raj told her that he alongwith co-
accused and deceased had consumed liquor. This obviously demonstrates that the complainant has made improvement in her statement recorded in the Court which creates doubts over the veracity of deposition of this witness. Be that as it may, the fact of the matter still remains that PW11 has nowhere stated that she had last seen the deceased in the company of accused. Therefore, it cannot be said that prosecution was able to prove this circumstance against the accused that they were last seen with the deceased.
Accordingly, the only conclusion which can be drawn from the ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 10 above discussion is that the prosecution has failed to prove chain of circumstance against the accused.
2. Recovery of dead body:
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14. The factum of recovery of dead body as per learned Additional Advocate General stood proved on record by the testimony of PW1 Puroshatam, PW2 Suresh Kumar, PW11 complainant Lata Devi and PW12 Jovan Lal, father of the of deceased. Undoubtedly, recovery of dead body from the spot though stands established from the testimony of the above rt witnesses as well as from the statement of Investigating Officer who has entered the witness box as PW14 but there is nothing in the deposition of all these witnesses from which it can be inferred or concluded that deceased was in fact killed by the accused. It is a matter of record that PW11 complainant Lata Devi stated that dead body was found by her in the verandah of shop of Santosh Kumar. Incidentally, a perusal of statements of abovementioned witnesses demonstrates that there are discrepancies and variations which have remained unexplained with regard to the mode and manner in which the matter was reported to the police after the discovery of the dead body. As per the version of PW11, the complainant, after she discovered the dead body, she went back to her house, informed her in-laws about the ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 11 incident and her in-laws thereafter proceeded to the spot and she followed them after some time and it was her father-in-
law who telephonically intimated PW2 Pradhan Suresh Kumar .
about the incident who subsequently reached the spot and informed the police. Similarly, a perusal of statement of PW12 Jovan Lal, father of deceased demonstrates that he had deposed in the Court after his daughter-in-law informed him of about the dead body of his son lying in the verandah of the shop of Santosh Kumar, he alongwith his wife went to shop of rt Santosh Kumar and telephonically contacted Suresh Kumar who also reached the spot and informed the police. PW12 in his statement in the Court stated that accused Desh Raj who was present at the spot told him that in the previous evening, deceased and both the accused were together and they consumed liquor and thereafter deceased had fallen from the stairs of his shop. Now, in this background when we peruse the statement of Suresh Kumar who entered the witness box as PW2, he has deposed before the Court that on 12.07.2012 after he came to know about the incident on telephone from Jovan Lal, he visited the shop of Santosh Kumar and found the dead body of deceased lying in front of said shop and thereafter he informed the police about the occurrence.
However in his statement recorded under Section 164 of ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 12 Cr.P.C. has given a totally different version. In his statement so recorded under Section 164 of Cr.P.C which is on record as PW2/D, he stated on oath that on 12.07.2012, he received .
telephonic call from the father of deceased-Rajinder Kumar that his son had been killed and he should reach his house immediately and thereafter he (Suresh Kumar) went to the house of Jovan Lal and found Jovan crying in his house and of thereafter he went to spot alongwith Jovan. This variation in the statement of PW-2 Suresh Kumar has not been rt satisfactorily explained by the prosecution. Testimony of PW1 Puroshatam, who is also a witness to the recovery of dead body, is also not reliable at all. This witness has deposed in the Court that after he came to know about the death of his nephew he went to the spot and found accused Desh Raj present at the spot and he also found blood stains in the shop of Desh Raj. He also deposed that "pent" of accused Desh Raj was also having blood stains and gunny bag which was recovered from the shop of accused Desh Raj was also having blood stains. This witness also deposed that Desh Raj had confessed that he alongwith co-accused Vinod Kumar had killed the deceased with a bottle on the previous evening while all of them were consuming liquor. Incidentally, PW1 is also a witness to the confession statements made by both the ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 13 accused under Section 27 of the Indian Evidence Act as well as with regard to the recoveries effected pursuant to the statements so made by the accused under Section 27 of the .
Indian Evidence Act. Now as per the prosecution the articles recovered pursuant to the statements of the accused recorded under Section 27 of the Indian Evidence Act were the clothes which were worn by the accused at the time of commission of of the offence. If the clothes which were worn by the accused were actually recovered on the basis of statements of accused rt so recorded under Section 27 of the Indian Evidence Act, then it is not understood as to what is the veracity of this witness who deposed in the Court that when he went to the spot where dead body of deceased was found lying he saw blood stains on the "pent" being worn by accused Desh Raj. Not only this, a perusal of cross-examination of this witness demonstrates that he had admitted therein that before the arrival of police, many persons had gathered at the spot and that after some time police officials disclosed to him (PW1) that during night time, Desh Raj, Vinod Kumar and deceased seemed to have gathered and consumed alcohol together and thereafter the incident might have taken place. Therefore, testimony of this witness is not at all reliable and his ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 14 credibility also stands impeached by the defence in the course of his cross-examination.
15. Another important and relevant factor is that .
though it has come on record that there were many persons gathered on the spot where the dead body was lying. But strangely the prosecution has not examined even a single independent witness who was allegedly present on the spot of from where dead body was discovered. All the witnesses examined by the prosecution except the official witnesses rt were either related to the deceased or known to the deceased.
Thus had any confession been made by Desh Raj at the spot and if he was actually wearing blood stained clothes etc. at the spot and there were blood stains on the path and in his shop, it is not understood as to why these important facts have not been proved by the prosecution by bringing on record cogent evidence by way of testimony of independent witnesses.
16. From the discussion held above the only conclusion which can be arrived at is that through the discovery of dead body at the spot is a matter of record, however, merely on account of recovery of the same it cannot be inferred or concluded that the murder of the deceased was actually committed by the accused. Therefore, in our ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 15 considered view, the prosecution has not been able to prove even this circumstance against the accused.
3. Disclosure statements:
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17. As per prosecution, accused made disclosure statements while they were in police custody. Disclosure statement made by accused Desh Raj is on record as Ext.
PW1/A and Puroshatam and Suresh Kumar are witnesses to of the same. As per this disclosure statement, accused mentioned therein that he could get shirt, pajama and rt baniyan recovered which were blood stained and were worn by him while removing the deceased from his room to the house/shop of Santosh Kumar and which he had concealed inside a room in his house. It was further mentioned in this disclosure statement that he could also get the glass bottle recovered with which he had hit the deceased on his head and which he had kept in the ground floor room of his shop/house in a sack containing empty bottles of liquor.
18. The disclosure statement made by accused Vinod Kumar under Section 27 of Indian Evidence Act is on record as Ext. PW1/B and the same has also been witnessed by Suresh Kumar and Puroshatam. As per the said statement, the accused stated that he had concealed the blood stained clothes which he was wearing at the time when body of ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 16 deceased was removed from the house of Desh Raj to the under construction shop of Santosh Kumar in an Almirah in the house of his in-laws.
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19. Recovery memos of articles recovered on the basis of said disclosure statements made by the accused are on record as Ext. PW1/C and PE1/D. Now as per the prosecution, the said disclosure statements were made by the of accused in the presence of Puroshatam and Suresh Kumar.
Puroshatam has entered the witness box as PW1 and Suresh rt Kumar has entered the witness box as PW2. A perusal of testimony of PW1 Puroshatam demonstrates that in his examination-in-chief, this witness has stated that after he was informed about death of his nephew and he came to the spot where dead body of his nephew was lying, he saw Desh Raj on the spot and Desh Raj was wearing a "pent" which was blood stained. This witness has further stated that gunny bag which was recovered from the shop of accused Desh Raj was also having blood stains. This witness has also stated that clothes of Desh Raj were recovered from his shop and that of Vinod Kumar were recovered from the house of his in-laws.
Further a perusal of the cross examination of this witness demonstrates that he has stated therein that on 15.07.2012 i.e. the day when disclosure statements were recorded, when ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 17 he reached police station, police told him that Desh Raj had disclosed that his clothes were in the shop and clothes of Vinod Kumar were in the house of his in-laws. It is not as if .
he stated in his cross examination that he gathered this information from the statement of accused recorded under Section 27 of the Indian Evidence Act but he has deposed that said fact was disclosed to him by the police. Similarly, when of we peruse the statement of PW2 Suresh, in his cross examination has stated that at the time of recording of his rt statement under Section 164 of Cr.P.C, police officials were calling him and Kuldeep to the police station time and again and were pressing had on them to record statement as per their version. He further stated that the version told to him by the police was given by him in the Court to save himself from the pressure of police. He further stated in his cross examination that on 15.07.2012 he was called by the police to the Police Station at around 4:00 p.m. and police personnel told him about the recovery of clothes at the instance of accused.
20. In our considered view, the testimony of PW1 and PW2 is neither cogent, nor it is reliable or trustworthy.
Besides this, the credibility of both these witnesses has been impeached by the defence in their cross examination. Further ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 18 both these witnesses have stated in their cross examination that the factum of recovery of the clothes allegedly worn by the accused at the time of commission of the alleged offence .
was disclosed to them by the police. This, in our considered view renders the so called disclosure statements made by the accused to the police as well as the recovery of clothes made by the police on the basis of said disclosure statements highly of suspicious. Even otherwise, it is settled law that with regard to Section 27 of the Indian Evidence Act what is important is rt discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence.
What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. We may also add that this court is not oblivious of the fact that statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence and that statement recorded under Section 164 Cr.P.C can never be used as substantive evidence and said statement is always used for the purpose of contradiction or corroboration of a ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 19 witness who made the same. As such, the statement under Section 164 of Cr.P.C is a formal statement recorded before an authority competent to record these statements. From the .
discussion held above, it cannot be said that the prosecution was able to prove this circumstance against the accused.
4. Postmortem report:
21. Postmortem report of the deceased is on record as of Ext. PW8/A. Dr. Krishan Lal Kapoor who conducted the postmortem of the body of deceased entered the witness box rt as PW8 and this witness has deposed that in his opinion the deceased had died due to antemortem head injury. This witness further deposed in the Court that the "injury occurred to the deceased was not possible by empty bottle but the fatal injury to the deceased was possible by striking of head with the wall and same injury may caused death".
22. Another important fact which we may take note of is that weapon of offence i.e. the glass bottle with which Desh Raj hit the deceased on head was also not shown to PW8 in the course of examination. Not only this, this witness has categorically deposed that the fatal injury suffered by the deceased was not possible by an empty bottle and the same in fact was caused by striking the head of the deceased against a wall. Therefore, neither the postmortem report nor the ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 20 testimony of PW8 is suggestive of the fact that deceased in fact was killed by the accused. Neither from the statement of PW8 nor from the MLC the prosecution has been able to point .
out the complicity of the accused with the commission of offence. Thus, in our considered view, even this circumstance was not proved by the prosecution against the deceased.
5. Motive:
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23. As per prosecution, the motive as to why deceased was done to death by the accused was that deceased owed rt some money to accused Desh Raj. However, a perusal of the statement of wife and father of deceased who entered the witness box as PW11 and PW12 respectively demonstrates that there is no whisper of any motive which as per them accused had to do away with the deceased in their respective statements. Further it is apparent and evident from the statement of wife of deceased PW11 that after she discovered the body of her husband, she called amongst others her father-in-law to the spot and no suspicion at that stage was raised against Desh Raj by her. PW1 has stated on oath that in fact police had told him that accused had done away with the deceased. Even PW11 has stated in her cross examination that she was deposing against the accused persons only on the basis of suspicion. The attempt of the prosecution to ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 21 prove the motive of the accused to do away with the deceased on the basis of register Ext. P-5 by relying upon the entries made therein and trying to impress upon the Court that .
deceased owed money to the accused Desh Raj is a very weak type of evidence which has not been corroborated by any other witness especially in view of the fact that I.O. of the case PW-14 SI Dandu Ram stated that the said register (Ext. P-5) of did not contain either any cover nor that the said register belonged to Desh Raj. Not only this, a perusal of this register rt shows that the monetary figures are not so hefty so as to probably constitute motive to do away with the life of the deceased. Even otherwise, onus was upon the prosecution to have had placed on record cogent and reliable evidence to prove and substantiate that the accused had motive to do away with the deceased which it has had failed to discharge.
Hence the prosecution has not been able to prove even this circumstance against the accused.
24. Therefore, according to us, the chain of circumstances enumerated above by learned Deputy Advocate General does not in any manner forms a complete chain linking the accused with the commission of the alleged offence.
25. Further, a perusal of the judgment passed by learned trial Court also demonstrates that after taking into ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 22 consideration the entire material produced on record by the prosecution and after discussing the same in detail, learned trial Court held that the prosecution was not able to complete .
chain of circumstantial evidence against the accused nor the testimony of the complainant was free from reasonable doubts and the prosecution had not been able to prove its case against the accused beyond reasonable doubts.
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26. In our considered view, the findings so returned by learned trial Court are neither perverse nor it can be said that rt the finding of acquittal returned by learned trial Court in favour of the accused is not borne out from the records of the case. According to us also, the prosecution has not been able to establish beyond reasonable doubt that the accused were guilty of commission of offence punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code.
27. In view of above discussion, we do not find any infirmity with the judgment which has been passed by the learned trial Court acquitting the accused of the charges levelled against him. It cannot be said that the judgment passed by the learned trial Court is either perverse or that the prosecution had proved its case beyond reasonable doubt against the accused, but learned trial Court erred in acquitting him. According to us, the prosecution has not been able to ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP 23 prove its case beyond reasonable doubt. Therefore, the judgment passed by the learned trial Court is upheld and the present appeal is accordingly dismissed being devoid of any .
merit. Pending miscellaneous application(s), if any also stand disposed of.
(Sanjay Karol) Judge of (Ajay Mohan Goel) Judge 20th March, 2017.
(narender) rt ::: Downloaded on - 15/04/2017 22:02:27 :::HCHP