Himachal Pradesh High Court
Kamal Kumar @ Chuni @ Fiku vs State Of H.P on 20 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2024:HHC:7037-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 367 of 2019 Reserved on: 08.08.2024 Date of decision: 20.08.2024 .
Kamal Kumar @ Chuni @ Fiku ...Appellant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No. For the Appellant : Ms. Tanu Bedi and Mr. Sunny Modgil, Advocates.
For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with Ms. Sharmila Patial, Mr. Navlesh Verma, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy. A.Gs.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced to undergo rigorous imprisonment for life with specific direction that he shall be without parole for initial 10 years and to pay a fine of Rs. 25,000/- for the offence punishable under Section 302 IPC and in default of payment of fine, he was further directed to undergo simple imprisonment for one year.
2. Aggrieved by the aforesaid conviction and sentence, the appellant has filed the instant appeal.
3. Case of the prosecution is that one Subhkaran (complainant) got recorded his statement under Section 154 ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 2 ( 2024:HHC:7037-DB ) Cr.P.C. (PW1/A) at Police Station Bharmour, District Chamba, H.P., which reads as under:-
"Stated that I am resident of Village Banoon, Post Office and Up-Tehsil Holi, Police Station Bharmour, District .
Chamba, HP, at present, Vice-Pradhan, Gram Panchayat, Holi, aged 38 years. I have utensils shop at Holi bazar. I rented out two shops adjacent to this shop. Smt. Shakuntla Devi had constructed her house ahead of my shop downside. She let out the shops in the top floor adjacent to the road and in two lower storeys she rented out the premises to the tenants. In the left quarter of middle storey, one Chameli Devi alias Chaino wife of Chaukas Ram, resident of village Andrla Gram, Post Office Holi, Tehsil Bharmour, District Chamba, HP, is residing with her son Kamal Kumar alias Chuni. The other tenants are not available these days. In winters, they leave for Kangra. I open my shop at Holi after coming from my house at Banoon. On 23.1.2016, at about 10.00 AM, I opened my shop and was basking in the sun. In the meanwhile, Kamal Kumar alias Chuni son of Chameli Devi alias Chaino appeared from Holi bazar and asked me to employee him in a private company. I noticed blood stains on black coloured hood worn by him and his feet were also having blood stains. He was wearing light blue coloured jean pants. I asked Kamal Kumal Kumar that why blood stains had appeared on his hood and feet and had anybody given beatings to him, to which he answered "no, no" nothing has been done. Thereafter, he left towards his quarter. I suspected some foul play being hidden by him. A criminal case was earlier registered against him in Police Station Bharmour. This apart, Kamal Kumar had been picking quarrel and giving beatings to his mother Chameli under the influence of liquor. In the meanwhile, Sujan Singh and Vikram Singh came there and I narrated the incident to them. We all were standing by left side near railing of the road and basking in the sun.::: Downloaded on - 20/08/2024 20:38:14 :::CIS
3 ( 2024:HHC:7037-DB ) The quarter of Chameli was visible. We saw that Kamal Kumar alias Chuni came out of his quarter, changed his hood and wore other clothes. He was locking the quarter. Normally, he never locked the quarter during day time and this caused grave suspicion. We all three then .
reached the quarter and asked him as to what had happened. He answered nothing. He appeared to be quite nervous. On asking, the door of the quarter was opened, wherein there was lot of blood found spread across the floor. On left side, the dead body of Chameli Devi alias Chelo was lying on the cot. Her mouth was in the pool of blood. I immediately informed the Incharge, Police Post Holi. I asked Kamal Kumar alias Chuni that who did this, to which he stated that his friend Manoj Kumar alias Manu alias Basuli had come to him in the morning. They consumed liquor and quarreled with each other. In the meanwhile, Incharge, Police Post Holi came to the spot.
He nabbed the accused. Manoj, (friend of Kamal Kumar) was searched and was nabbed nearby his quarter. He was handed over to the police. The police party from Police Station Bharmour had reached the spot. I suspect that son of deceased Kamal Kumar alias Chuni and Manoj has committed the murder of Chameli Devi alias Chelo during night hours, because accused Kamal Kumar alias Chuni had given beatings to his mother on earlier occasion.
Legal action be taken."
4. On the basis of the aforesaid statement of complainant (Ext. PW1/A), FIR (Ext, PW12/A) came to be registered with Police Station Bharmour, CCTNS Certificate (Ext.
PW12/B) was issued at MHC Bharmour.
5. During investigation, site plan of place of occurrence (Ext. PW15/C) was prepared. Blood stained soil, clothes of the deceased, bed sheet, hairs and hair band of the deceased were ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 4 ( 2024:HHC:7037-DB ) taken into possession vide seizure memo (PW1/C) by using the seal impression 'A', sample seal (Ext. PW1/B), one hood/pants/shirt of Kamal Kumar alias Chuni were also taken into possession by using seal impression 'K' vide memo (Ext. PW1/D), .
seal impression on separate cloth piece (PW3/C) was obtained.
6. On the aforesaid statement of the appellant under Section 27 of Indian Evidence Act (Ext. PW3/A), one broken glass, empty bottle of 'country liquor Una No.1' was taken into possession vide seizure memo (Ext. PW3/B) and sealed in a cloth parcel and seal impression (Ext. PW3/C) was taken on a piece of cloth. An application (Ext. PW6/A) to Patwari, Patwar Circle Holi was preferred and scale map (Ext. PW6/B), jamabandi for the year 2009-10 were also obtained. The postmortem examination of the deceased was conducted vide PM No. 23/16, dated 25.1.2016 (Ext. PW9/A). The cause of death opined by the Medical Officer as Intra cranial hemorrhage, due to blunt force impact. Injury No.1 laceration, caused by blunt force impact and likely to cause death in ordinary course of nature. The subsequent opinion (Ext. PW9/C) was obtained from Forensic team and Dr. Susheel Sharma, Assistant Professor, and V. Gupta, Department of Forensic Medicine, RPGMC, Tanda, had opined that after examination of the broken bottle, they were of the considered opinion that injury No.1 mentioned in the postmortem report No. 23/16, could be possible by examined bottle. The subsequent opinion, as expressed by the team of ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 5 ( 2024:HHC:7037-DB ) Doctors of Forensic Medicine vide application (Ext. PW9/B). The police party left to the spot vide departure report No. 9, dated 3.1.2016 (Ext. PW8/A). The case property remained deposited with MHC, Police Station Malkhana vide entry No. 50/16, abstract .
of Malkhana Register (PW10/A), same were sent to RFSL, Dharamshala through HHC Chaman Singh vide RC No. 6/16 (Ext.
PW10/B). One envelope along with seal sample and parcel finger print was sent to Finger Print Bureau through HHC Ram Prakash vide RC No. 5/16 (Ext. PW10/C). On application (Ext. PW14/A) 25.35 (Ext.
appellant was medically examined and MLC (Ext. PW14/B) was obtained. Photographs (Ext. PA1 to Ext. PA10) were clicked, Forms PW15/B) were filled-in. Postmortem examination was conducted vide Form No. 25.39 (Ext. PW15/B1) and appellant was arrested vide arrest memo Ext. PW15/D.
7. On completion of investigation the final police report alongwith relevant documents was presented in the Court against the appellant, who vide its order dated 22.4.2016 supplied the copy of challan along with other relevant documents as required under Section 207 Cr.P.C. to the appellant.
8. The charge was framed and put to the appellant for the commission of offence punishable under Section 302 IPC to which he pleaded not guilty and claimed to be tried.
9. The prosecution in order to prove its case has examined as many as 16 witnesses.
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10. On closure of the prosecution evidence, appellant was examined under Section 313 Cr.P.C. wherein he claimed to be innocent and stated that he has been falsely implicated in this case due to an old enmity with complainant Subhkaran. The .
appellant examined his sister DW1 Reshma in his defence evidence.
11. The learned Trial Court after recording evidence and evaluating the same, sentenced the appellant, as aforesaid.
We have heard learned counsel for the appellant and
12.
r to learned Senior Additional Advocate General and have gone through the material placed on record.
The cardinal principle of criminal jurisprudence has remained impassive. The prosecution has to prove its case beyond all reasonable doubts. Appearance of serious doubt in the prosecution case only helps the case of accused. More serious the offence, more arduous is the duty cast upon prosecution to discharge its burden strictly in accordance with law. In absence of direct evidence, circumstances relied upon by the prosecution have to satisfy the same standard of proof i.e. beyond all reasonable doubts. Once this barrier is successfully crossed, it is to be shown that all the circumstances form a complete chain of facts suggesting only one hypothesis i.e. the guilt of the accused.
13. In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 the Hon'ble Supreme Court held as under:-
::: Downloaded on - 20/08/2024 20:38:14 :::CIS7 ( 2024:HHC:7037-DB )
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The .
circumstances concerned "must" or "should" and not "may be" established;
(2) 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
14. In Ramanand @ Nandlal Bharti Vs State of Uttar Pradesh, 2022 SCC Online SC 1396, the legal position has further been reiterated by the Hon'ble Supreme Court as under:-
PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence.
According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; & ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 8 ( 2024:HHC:7037-DB )
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an .
accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential.
The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
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15. It will also be gainful to reproduce following extract from the judgment passed by the Hon'ble Supreme Court in Ramesh Bahi and another vs. State of Rajashtan (2009) .
12 SCC 603:-
"7. In support of the appeal learned counsel for the appellants submitted that the circumstances highlighted do not establish the accusations. Learned counsel for the respondent-State on the other hand supported the judgment.
8. "10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.
State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 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.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:::: Downloaded on - 20/08/2024 20:38:14 :::CIS
10 ( 2024:HHC:7037-DB )
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and .
there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence'.
12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'
13. In State of U.P. v. Ashok Kumar Srivastava, (1992)2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
::: Downloaded on - 20/08/2024 20:38:14 :::CIS11 ( 2024:HHC:7037-DB )
14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond .
reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
'10. ....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 12 ( 2024:HHC:7037-DB ) be such as to show that within all human probability the act must have been done by the accused.'
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial .
evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(2) 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE"
16. We are governed by rule of law. No conviction can be recorded on assumption. Prosecution has to discharge its burden ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 13 ( 2024:HHC:7037-DB ) by proving the guilt of accused beyond all reasonable doubts and for such purposes, it has to prove the fact in issue on the basis of relevant and admissible evidence. Merely, because police get knowledge about the culprit either from illegal confession .
extracted from him or from any other source will not absolve the prosecution from its duty to prove the guilt of the accused in accordance with law.
17. It is a well settled proposition of law that conviction can be based on circumstantial evidence. But all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. In other words, the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence.
The chain of circumstance should be so complete to lead to the only conclusion that it was only the accused and none else, who had committed the crime. The principles on which the circumstantial evidence is to be evaluated have been stated and reiterated by the Supreme Court in numerous judgments.
18. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principles of proof in a case based on circumstantial evidence thereby laying down that the following conditions must ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 14 ( 2024:HHC:7037-DB ) be fulfilled before a case against an accused can be fully established:
"153. ... ... ... ... ... ... ...
(1) the circumstances from which the conclusion of .
guilt is to be drawn should be fully established.
... ... ... ... ... ... ... ...
(2) 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 explained on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused."
19. When a case rests on circumstantial evidence, the circumstances must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence meaning thereby that every reasonable possibility of innocence of accused must be excluded before the accused is held guilty of an offence on the strength of circumstantial evidence.
20. In Sharad Birdhichand Sarda's case (supra), it has further been held that in a case of circumstantial evidence, it is incumbent upon the court to satisfy itself that:
"159. ... ... ... ... ... ... ...
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 15 ( 2024:HHC:7037-DB ) (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."
21. In the case of Vijay Shankar Vs. State of .
Haryana, reported in (2015) 12 SCC 644, the Hon‟ble Apex held that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused. Paragraph 8 of the aforesaid judgment reads as under:
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal r principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."::: Downloaded on - 20/08/2024 20:38:14 :::CIS
16 ( 2024:HHC:7037-DB )
22. In the case of State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Hon'ble Apex Court was considering a case based on circumstantial evidence. Their Lordships while taking note of the well settled legal position, in .
Paragraphs 9 and 10 observed as under:
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the r accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 17 ( 2024:HHC:7037-DB ) established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain .
so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v.Rajendran (1999) 8 SCC 679."
23. In Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, 2022 SCC online SC 1396, the legal position has further been reiterated as under:
"PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANCTIAL EVIDENCE
45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:::: Downloaded on - 20/08/2024 20:38:14 :::CIS
18 ( 2024:HHC:7037-DB )
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed to proposed to be proved; &
b) The Factum probans or the evidentiary .
fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
r to
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed b the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
::: Downloaded on - 20/08/2024 20:38:14 :::CIS19 ( 2024:HHC:7037-DB )
50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from .
the established facts as the circumstances lead to particular inferences. The court has to drawn inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."
24. In a recent judgment, in the case of Raja Naykar vs. State of Chattisgarh, (2024) 3 Supreme Court Cases 481, the Hon'ble Supreme Court has again reiterated as under:
"17. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused "must be"
and not merely "may be" proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 20 ( 2024:HHC:7037-DB ) to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act .
must have been done by the accused."
25. According to the learned Trial Court following nine incriminating circumstances appeared against the appellant in the commission of the alleged offence:-
1. Appearance of the accused while appearing with blood stained hood, jean pants and heavy blood stains on his feet, noticed by the complainant.
2. Seizure memos regarding recovery of blood, blood stained clothes of victim etc. and blood stained clothes of accused.
3. The disclosure statement made by the accused leading to the recovery of weapon of offence i.e. broken glass bottle (P18).
4. Ante-mortem injuries on the body of the deceased.
5. Post-criminal record of the accused.
6. Presence on the spot and opportunity to commit crime.
7. Conduct and opportunity of the accused on the spot.
8. Motive for the commission of crime.
9. Identification of the accused.
26. In light of the aforesaid, we now proceed to examine the entire evidence on record for making an assessment whereof ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 21 ( 2024:HHC:7037-DB ) on the touchstone of a well settled legal principles, some of which have been noted above.
Circumstance Nos. 1 & 21. Appearance of the accused while appearing .
with blood stained hood, jean pants and heavy blood stains on his feet, noticed by the complainant.
&
2. Seizure memos regarding recovery of blood, blood stained clothes of victim etc. and blood stained clothes of accused.
27. It would be important to refer to the statement given by the complainant under Section 154 Cr.P.C. (Ext. PW1/A), where the complainant states that "I notice blood stained on the black coloured hood worn by the appellant and his feet were also having blood stain. He was wearing light blue coloured jean pants".
28. It would be noticed that neither in the testimony of complainant Subh Karan (PW1) before the Court nor in the testimony of the Investigating Officer PW15 Insp. Ajay Kumar has the details of the colours of the clothes been mentioned and only reference has been made to the parcel (Ext. P13) containing one full sleeve hood (Ext. PW14), one Shirt (Ext. P-15) and pants (Ext.
P16). Therefore, the admitted case of the prosecution is that the appellant was found to be wearing jeans pants and black coloured full sleeve hood.
29. It was while hearing arguments on 31.07.2024, we called for the production of the case property as contained in ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 22 ( 2024:HHC:7037-DB ) parcel (Ext. P13), containing full sleeve hood (Ext. P14), one shirt (Ext. P15) and pants (Ext. P16), which were duly produced.
30. On 08.08.2024, when the parcel was produced and opened, we found that the hood was not of black colour but was .
a grey coloured full sleeve hood both sides and instead of jeans of blue colour, it contained one pants that too of light grey colour (faded), which obviously do not match with the case property and demolishes the case of the prosecution.
31. Apart from the above, the testimony of the complainant itself appears to be highly improbable, unnatural and unbelievable. It is highly unbelievable that the complainant would have seen the appellant in a broad day light with the blood stained clothes that too after he had allegedly killed his mother in the most gruesome manner. No evidence has come on record that the appellant was either mentally unfit or under some intoxication or drunk and in the given circumstances it is difficult to believe that the appellant would casually come up to the complainant with blood stained clothes and ask him to give employment and only thereafter go to change his clothes.
32. What further appears to have been ignored by the learned Court below is that once the complainant alongwith his neighbouring shopkeepers, namely, Surjan and Vikram had gathered near the shop of the complainant and were basking in the sun and had seen the blood stains on the full sleeve hood of the appellant, they would have nabbed the appellant there and ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 23 ( 2024:HHC:7037-DB ) then and would not have waited for him to go to his quarter and allow him to change his clothes and only while putting the lock of the door on his quarter, would they become suspicious and inform the police.
.
Circumstance No. 3The disclosure statement made by the accused leading to the recovery of weapon of offence i.e. broken glass bottle (P18).
33. As per the disclosure statement, the appellant had kept the blood stained clothes on the T.V. and kept the bottle of Una No. 1 under the heap of the wood in the kitchen and then he got the blood stained bottle recovered. As per the expert report, finger prints found on the broken bottle, were lifted but the same were found not to be sufficient to compare. Solely because that the blood group on the glass bottle matched with the deceased, therefore, the circumstance could not have been held to be proved.
34. Obviously, the blood on the bottle would essentially be of the deceased but that by itself would not prove or establish that it was the appellant who had committed the murder. The prosecution ought to have led concrete and cogent evidence to establish that it was the appellant alone, who was exclusively using the room, which in fact is not even the case of the prosecution. Rather the specific story as set out in the complaint is that the appellant normally never locked the quarter during ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 24 ( 2024:HHC:7037-DB ) day time and that is why the suspicion arose when the appellant locked the premises.
Circumstance No. 4Ante-mortem injuries on the body of the .
deceased.
35. The mere fact that there were ante mortem injuries on the body of the deceased as stated by PW9 Dr. Sushil Sharma and is otherwise the prosecution case, we really fail to understand how that fact by itself would establish even remotely that these ante mortem injuries had been caused by the appellant. r Circumstance No. 5 Post-criminal record of the accused.
36. No doubt, PW15 I.O. Inspector Ajay Kumar and PW16 Inspector Dharam Singh, have deposed regarding there being five criminal cases against the appellant, however, none of those FIRs have been exhibited or proved on record.
37. Apart from the above, the learned trial Court has been clearly oblivious to the provisions of Section 54 of the Evidence Act, which read as under:-
54. Previous bad character not relevant, except in reply-
In criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has good character, in which case it becomes relevant."
38. It is an elementary rule that a man's guilt is to be established by proof of fact and not by proof of his character.
::: Downloaded on - 20/08/2024 20:38:14 :::CIS25 ( 2024:HHC:7037-DB ) Such evidence might create a prejudice but not leap a step towards substantiation of guilt. Evidence cannot be given merely for the purpose of showing that the character of the accused is such that he is a person likely to commit the act, which he is .
charged. Even if there were previous convictions of the accused, the same cannot influence the Court against him. Under Section 54 of the Evidence Act, in criminal proceedings the fact that the accused person is of a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Circumstance No. 6r to Presence on the spot and opportunity to commit crime.
39. The Court has relied upon the testimonies of PW-1 Subh Karan, PW2 Champa Devi, PW3 Vikram Singh and PW4 Shakuntla to conclude that the blood stains were noticed on the clothes of the appellant, but in view of answer to Circumstances No. 1, the case of the prosecution falls flat.
40. PW4 Shakuntla is owner of the house which had been rented to the deceased and the appellant 10 years back and she in her cross-examination categorically admitted that because of cold weather, tenants were not present in their rooms and the mother of the appellant had never made any complaint to her regarding ill treatment to her by the appellant.
41. The appellant was well within his right is trying to shift the accusation to Manoj who too had been apprehended by ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 26 ( 2024:HHC:7037-DB ) the police but surprisingly it is the police which let the person got Scot-free by concluding that they found no relation attributable to the accused Manoj. The learned trial Court ought to have satisfied itself after analysing and seeing the basis of such clean .
chit being given by the police given the fact that the blood stained clothes do not tally with the description as given by the prosecution, more particularly, the complainant.
Circumstance No. 7Conduct and opportunity of the accused on the spot.
42. As regards the seventh circumstance, we really fail to understand how the conduct and appearance of the accused has been held to be one of the grounds of his conviction given the fact that firstly the description of the clothes as given by the prosecution do not tally with the clothes as produced before this Court and secondly the appellant had remained there at the spot and did not try to even flee and was probably not even afforded an opportunity to grief. The findings qua the circumstance, to say the least, are based on surmises and conjectures and are totally perverse.
Circumstance No. 8Motive for the commission of crime.
43. We are extremely perturbed by the findings recorded by the learned Court below to hold that the circumstance stands established that too without giving any reasons for such findings.
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44. It shall be apt to reproduce para 42 of the judgment, which reads as under:-
42. Motive to commit crime is one of the incriminating circumstance to be appeared against the accused. Motive .
is there, which is, fit of rage or anger,to remove hurdle,in between as the accused is of criminal background,and the mother, who always reprimanded their children to follow the virtuous path. Intention is also there. Time and again, it is argued by the learned defence counsel that motive is not proved. He relied upon State of H.P Vs. Pyare Lal HLJ
511. The contention raised before me not at all acceptable. When the case of the prosecution is otherwise proved by way of positive evidence in positive manner, the accused who had committed the murder of his own mother. In this case, motive committing murder is immaterial. It is argued that there are sharp contradiction regarding the origin and genesis of the crime. The defence probablise by learned defence counsel regarding the murder committed by Manoj alias Manu. It is highly improbable fact and not plausible. All the contradictions pointed out by learned defence counsel are trivial in nature. Here in the present case, the accused has killed his own mother. The murder was committed in most cruel, gruesome and diabolic manner. At the cost of repetition, the accused had an ample opportunity to commit the offence of murder of his own mother. There are catenate of decisions that motive to commit criminal offence is not material in the presence of positive evidence brought forward on record. As per postmortem report (PW9/A), the deceased sustained lacerated wound, present at left upper aspect of forehead associated with Heematoma and such injury can be caused by the blunt force of the bottle. The bottle (P18) shown to the Medical Officer (PW9) Dr. Sushil Sharma was that of used by the accused in the commission of crime, whereupon he opined that laceration can be caused by the blunt force of the bottle ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 28 ( 2024:HHC:7037-DB ) (P18). Thus, it is proved on record that the accused has the motive to commit the crime of committing the murder of his own mother. Hence, this circumstance proved in affirmative.
.
Circumstance No. 9Identification of the accused
45. The learned trial Court has held that since the identity of the appellant was not in dispute, therefore, this circumstance stood established. We fail to understand as to how such findings could have been arrived given the fact that there was no eye witness, as held by the learned trial Court in its para 44, therefore, the identification of the appellant by itself cannot be a link in the chain of circumstantial evidence.
46. We further notice that there has been a complete lack of objectivity in the approach of the learned Court below wherein it not only took into consideration the past conduct of the appellant in utter disregard to the provisions of Section 54 of the Evidence Act but arrived at a conclusion without assigning any reason for the same. The learned trial Court has completely failed to bear in mind the cardinal principle of criminal jurisprudence that "graver the offence, the stricter the proof".
47. The learned counsel for the appellant is absolutely right in contending that the observations made by the learned Court below in para 50 of the judgment are incomprehensible, which reads as under:-
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50........... This is a clear cut case of admission on the part of accused of causing murder of his innocent mother in a most cruel and gruesome manner by inflicting blow of broken wine bottle on the forehead of the deceased Chameli Devi. The defence so raised, from the side of the .
accused that the origin and genesis of the crime are not at all established and the motive of the crime is not proved. However, it has been proved on record from the testimony of spot witnesses as well as the medical evidence that the accused had committed the offence. As per medical evidence, the blood group of 'B' was found on the clothes worn by the accused as well as from the broken piece of wine bottle which is also the blood group of the deceased. Moreso, even for the sake of argument the defence raised from the side of the accused is treated as gospel truth, what would the necessity for the accused found to have murdered his mother Chameli Devi. There is no other defence except one already discussed raised from the side of the accused. So prosecution has proved its case to the hilt beyond all reasonable doubt.....
48. Further, we find from the record that the statement of the sister of appellant, who appeared as DW1 to prove that the complainant had relation with one person who was inimical to the family and further that Manoj used to visit the house in absence of his brother and he used to consume liquor with the mother of the appellant and further that her brother had been falsely implicated has not at all been considered.
49. Apart from the above, the testimony of PW1, who is the complainant Subh Karan, could not be taken at its face value, but had to be taken with a pinch of salt because it is the defence ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 30 ( 2024:HHC:7037-DB ) evidence that his relative wanted to usurp the house in which the appellant alongwith his mother had been living.
50. From the record, we garner an impression that a deliberate attempt was made by the police agencies to let go .
Manoj, who as per PW1 was apprehended by the police near his shop while he was basking in the sun, whereas PW-15 I.O. Insp.
Ajay Kumar has a different story to tell that Manoj had come to the police alongwith his father.
51. The investigation carried out by the I.O Ajay Kumar (PW15) is not in sync with the first version given in the FIR. As per FIR, Manoj was arrested/nabbed before the registration of the FIR, whereas the I.O. version shows that Manoj was called to the police station after the FIR was registered and all the investigation had been carried out at the spot. The reason for letting of Manoj without proper investigation creates a serious doubt in the prosecution case given the fact that PW15 I.O. Ajay Kumar admits that he did not make any inquiry about the visiting terms of Manoj in the house of the appellant. Furthermore, the learned trial Court has not at all taken into consideration the fact that it has come in the prosecution story that Manoj had accompanied the appellant at 6:30 am in the morning on the relevant day after the appellant had come to sell T.V. in the month of January and it would be pitch dark at the given time and that apart it would be extremely cold. The explanation is absurd and does not appeal to a prudent man, especially in the ::: Downloaded on - 20/08/2024 20:38:14 :::CIS 31 ( 2024:HHC:7037-DB ) wake of the timing of the death in the post-mortem report, which according to PW9 Dr. Sushil Sharma, who had conducted the post-mortem examination on 25.01.2016 that time of death and post-mortem could be 2-3 days.
.
52. Even the sentence as imposed by the learned Court below excluding parole for a period of 10 years is beyond the jurisdiction and authority of the learned trial Court. The learned trial Court has no such authority or jurisdiction to pass such a sentence.
53. Going by the facts and circumstances and the evidence led in the case, a suspicion could at best be raised regarding the involvement of the appellant in the crime but then suspicion is not a substitute for proof. The Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof. After all, these are short steps between moral certainty and legal proof. Mere suspicion or suspicious circumstances cannot release the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Court of justice cannot be swayed by the sentiment or prejudice against a person accused of a very reprehensible crime of patricide.
54. Resultantly, we have no hesitation to conclude that the case of the prosecution is highly doubtful and therefore, the appellant is entitled to benefit of doubt.
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55. In view of the aforesaid discussion and for the reasons stated above, we find merit in the appeal and the same is accordingly allowed. The judgment of conviction and sentence is accordingly set aside. The appellant Kamal Kumar alias Chuni .
alias Fiku is ordered to be set free forthwith, if not required in any other case.
56. The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
20th August, 2024 Judge
(Sanjeev)
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