Himachal Pradesh High Court
Vicky Rana And Another vs State Of Himachal Pradesh on 10 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 321 of 2018.
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Reserved on : 03.08.2023.
Date of decision: 10.08.2023.
Vicky Rana and another .....Appellants.
of Versus State of Himachal Pradesh .....Respondent. Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellants : Mr. George, Advocate, Legal Aid Counsel.
For the Respondent : Mr. Anup Rattan, Advocate General with Mr. Yashwardhan Chauhan, Senior Additional Advocate General, Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocate Generals and Mr. J.S. Guleria, Deputy Advocate General.
Tarlok Singh Chauhan, Judge The appellants have been convicted and sentenced by the learned Court below and aggrieved thereby have filed the instant appeal.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 2
2. The case of the prosecution, in brief, is that on 07.11.2013, at about 2.30 p.m., PW-3, Sunil Negi, the S.D.P.O., .
Rampur, received a telephonic message from S.D.P.O, Rohru, Raj Kumar Chandel, informing him that one Manoj and Sheetal had come to his office and told that truck bearing No.HP-63-2194 belonging to Suresh Chauhan, who was brother-in-law of Manoj, of which was being driven by driver Mahender Singh had gone to Manimajra and from there to Kala Amb from where it was supposed rt to bring iron bars (saria), but had not reached Rohru and they had also not been able to contact Mahender Singh and S.D.P.O., Rohru requested him to look out and search for the said vehicle and its driver in his jurisdiction in sub-division, Rampur, by disclosing the registration number of truck as HP-63-2194. He accordingly forwarded the said information to Station House Officer, Rampur with a direction to laid a 'naka' in order to intercept the missing vehicle and driver. Consequent upon such direction, Investigating Officer, PW-15, Inspector Manish Chauhan, along with other police officials laid a 'naka' at place Dakolar near Rampur vide rapat Ext.
PW-15/A.
3. Shortly after, laying 'naka', it was noticed that the truck in question was coming from Bazirbowli side towards Rampur side which was singalled to stop. One 'Nepali' boy was found to have ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 3 been driving the said truck while four other 'Nepalis' were found sitting in the cabin of the truck. The truck was loaded with iron bars.
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The conduct of the boys seemed to be suspicious and they were accordingly interrogated about the truck.
4. Upon inquiry, the driver disclosed his name as Prem Singh and the other boys sitting in the cabin disclosed their names of as Amit, Vicky, Raju and Anil. During interrogation of the said boys, one Sheetal and PW-12 Manoj Chauhan arrived at the spot. Manoj rt Chauhan disclosed that he is a shopkeeper and aforesaid truck was registered in the name of his elder brother Suresh Chauhan and he used to take care of the said truck. He further disclosed that the truck along with its driver had gone missing since 06.11.2013.
Accordingly, his statement under Section 154 Cr.P.C. Ext. PW-7/A was recorded wherein he stated that on 04.11.2013 Mahender Singh took the said truck for some repairs to Manimajra and thereafter on 06.11.2013 the driver took the truck to Kala Amb for bringing iron bars. The complainant remained in touch with the driver on his mobile upto 4.30 p.m. on 06.11.2013. However, thereafter, neither driver Mahender Singh returned to Chirgaon nor attended his phone calls and, therefore, suspected some foul play with the driver.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 45. On 07.11.2013, he along with his brother-in-law went to the office of Dy.S.P., Rohru and apprised him about the entire facts, .
who in turn, telephonically informed the then Dy.S.P., Rampur about the missing truck. When the truck was intercepted, the Dy. S.P., Rampur informed Dy. S.P. Rohru about five 'Nepali' boys. It is then he came to Rampur and found that his truck was parked at Dakolar of near Rampur. It is the further case that since the occupants and the driver of the truck rt could not satisfactorily account for the possession of the truck and regarding whereabouts of the driver Mahender Singh, so the complainant suspected that it was these boys, who conspired together and murdered driver Mahender Singh.
6. On the basis of the statement of the complainant, an FIR Ext. PW-7/B was registered at police station, Rampur. PW-15, Inspector, Manish Chauhan investigated the case and during the course of investigation, the truck was taken into possession along with its documents and iron bars vide memo Ext. PW-12-A. Photographs of the spot Ext. PW-15/C-1 to Ext. PW-15/C-3 were clicked. Spot map of the recovery of truck Ext. PW- 15/D was also prepared. All the five persons were interrogated and thereafter arrested on 08.11.2013.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 57. During interrogation, five arrested persons made disclosure statement before the I.O. that on 06.11.2013, all these .
persons had hatched a criminal conspiracy at Kala Amb and requested the driver of the said truck to take them upto Chirgaon and on the way when they reached near Banedi, they asked the driver to stop the truck as they had to answer the call of nature. It is of then they started hitting the driver with stones and with the help of muffler the arrested persons Raju and Prem Singh tried to rt strangulate the driver. However, the driver jumped down towards the road in order to save himself and all the aforesaid persons also jumped behind him. The driver was then strangulated by Prem Singh by removing T-shirt he had been wearing. The body was thereafter concealed in the bushes and the accused persons had left muffler and the stones on the spot and disclosed that they could get recovered the same. The disclosure statement of the accused persons was reduced into writing vide memo Ext. PW-5/A.
8. It is further the case of the prosecution that upon checking clothes of the arrested persons, the same appeared to be having blood stains. Therefore, the I.O. took into possession T-shirt Ext. PJ-1 and 'pants' Ext PJ-2 of Prem Singh, shirt Ext. PE-1 and jean Ext. PE-2 of Vicky Rana, jean Ext. PF-1 and shirt Ext. PF-2 of Raju, shirt Ext. PG-1 and 'pants' Ext. PG-2 of Amit and T-shirt ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 6 Ext. PH-1 and 'pants' Ext. PH-2. The clothes of each accused were packed in separate cloth parcels and the same were sealed with .
seal impression 'R' and taken into possession vide memo Ext.
PW-5/B.
9. It is also the case of the prosecution that on 09.11.2013, the aforesaid persons took the police party to a place 'Dosadka' of near Banedi on National Highway where there was a water source situated near the road which was identified by these persons to be rt the same spot where the incident had taken place and led to the recovery of mufflers Ext. PA-1 and Ext. PA-2 at their instance and some blood stained stones Ext. PC-1 to Ext. PC-4, blood stained soil and pebbles Ext. PB-1 were found and taken into possession. These persons also got recovered dead body of deceased Mahender Singh on the spot which was lying below National Highway under the bushes. All the above articles and the dead body were taken into possession vide memo Ext. PW-2/A. Inquest reports Ext.
PW-15/G and Ext. PW-15/H were prepared and the photographs of the spot were also clicked. The I.O. also prepared the spot map of the recovery Ext. PW-15/J.
10. Thereafter, the postmortem of the body of the deceased Mahender Singh was conducted at Zonal Hospital, Nahan by PW-9 Dr. Pujan Jaswal and Dr. Suchi and postmortem ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 7 report Ext. PW-9/B was procured in which doctor opined that the deceased died due to asphyxia caused by strangulation with .
haemorrhage with multiple internal injuries. During postmortem, clothes worn by deceased, spleen kidney, liver, stomach, small intestine, heart and other ligature material and blood samples of deceased were taken by the doctor and were handed over to the of accompanying police official.
11. It is also the prosecution case that out of the aforesaid rt five persons, Prem had sold his mobile of Intex Company to PW-1 Naveen Gupta at Kala Amb and thereafter on 06.11.2013, I.O.
PW-15 Inspector Manish Chauhan went to Kala Amb and took into possession the mobile phone vide memo Ext. PW-1/A. The entire case property was deposited with the 'malkhana' Incharge PW-7 ASI Krishan Lal, who entered it in the 'malkhana' register, abstracts of which are Ext. PW-7/B and Ext. PW-7/E. On 08.11.2013, the case property was sent to SFSL, Junga vide R.C. Ext. PW-7/F through PW-8 Shawak Chauhan, who deposited the case property in SFSL, Junga and handed over its receipt to MHC. The SFSL reports Exts.
PX, PY and PZ were received in the police station, Rampur and after completion of the investigation, PW-15 prepared the challan against Prem Singh, Vicky Rana, Raju, Anil and Amit for the commission of the offences punishable under Sections 396 and 302 read with ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 8 Section 120-B IPC and presented in the Court of learned ACJM, Rampur.
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12. Thereafter, DNA report Ext. PR was received in police station, Rampur which reads as under:
"I. Identical DNA profile was obtained from Ex-1b (pants, Amit), Ex.-3a (pants Anil Singh, Ex. -3b(T-shirt Anil Singh), of Ex. 4-a (pants Vicky Rana), Ex.-6 (blood stained soil and stones lifted from the spot), Ex. 8-a & 8b (mufflers lifted from the spot), Ex.9a, 9b & 9c (blood stained stones lifted rt from the spot), and Ex. -16a, 16b and 16c (clothes Mahender Singh), and this profile matches completely with the DNA profile obtained from Ex.-14 (blood sample Mahender Singh).
II. A mixed DNA profile was obtained from Ex.1a (shirt Amit), and Ex.4b (shirt Vicky Rana), from which one major DNA profile could be identified. This DNA profile matches with the DNA profile obtained from Ex.-14 (blood sample Mahender Singh).
III. Ex.-15 (ligature Mahender Singh) yielded highly degraded DNA that did not show amplification with Power Plex 21 PCR amplification kit. Hence, no DNA profile could be generated."
13. After receipt of DNA report Ext. PR, SHO Gaurav Singh prepared the supplementary challan and presented in the Court.
14. The Court after considering the documents annexed with the challan framed charge for the commission of offences ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 9 punishable under sections 302 and 396 read with Section 120-B IPC to which the accused persons pleaded not guilty and claimed trial.
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15. During the proceedings before the learned Sessions Judge, Prem Singh, Amit and Anil filed applications under Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Section 223 Cr.P.C. claiming that they were under the age of of 18 years at the time of alleged incident and, therefore, could not be tried with the other accused. Consequently, the proceedings rt against the above juveniles were transferred to the Principal Magistrate, Juvenile Justice Board, Rampur and trial was conducted against Vicky Rana and Raju Singh.
16. In order to substantiate the charge, the prosecution examined 15 witnesses in all and accordingly statements under section 313 Cr. P.C were recorded wherein the appellants denied the prosecution case in toto and pleaded their innocence. The appellants did not lead any evidence.
17. The learned Court below after evaluating the evidence sentenced both the appellants to undergo imprisonment for life and to pay a fine of Rs.20,000/- each for the commission of offence punishable under Section 302 IPC and in default to further undergo simple imprisonment for six months. The appellants were convicted to undergo imprisonment for life and to pay a fine of Rs.10,000/-
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 10each for the commission of offence punishable under Section 396 IPC and in default to undergo simple imprisonment for six months.
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The appellants were further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- each for the commission of the offence punishable under Section 120-B IPC and in default to undergo simple imprisonment for three months.
of However, all the substantive sentences were directed to run concurrently. rt
18. Aggrieved by the judgment of conviction and sentence, the appellants have filed the instant appeal.
19. It is vehemently argued by Shri George, learned counsel for the appellants that there are major inconsistencies and material contradictions in the statements of the witnesses and the prosecution has miserably failed to prove its case beyond reasonable doubt. He would argue that there has been fabrication of documents and total non-appreciation and rather misappreciation of evidence, hence, wrong findings have been rendered and, therefore, the appeal deserves to be allowed.
20. On the other hand, learned Deputy Advocate General for the State would argue that the findings rendered by the Court below are in accordance with law and the Court below has ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 11 appreciated the oral and documentary evidence in its right perspective and, therefore, warrant no interference.
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21. We have heard the learned counsel for the parties and have gone through the material placed on record.
22. It is not in dispute that there is no eye-witness to the crime and the case is totally based on circumstantial evidence. As of per the settled legal position, in order to sustain conviction, the circumstances, taken cumulatively, should form a chain so as to rt complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 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. This was so held by three Hon'ble Judge Bench of the Hon'ble Supreme Court in recent judgment in Rahul vs. State of Delhi, Ministry of Home Affairs and another (2023) 1 SCC 83.
23. The learned Court below framed the following points for determination:
"1) Whether the prosecution has proved beyond reasonable doubt that on 6.11.2013, at place Banethi, within the jurisdiction of Police Station, Nahan, the accused ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 12 persons conspired with juvenile in conflict with law and in pursuance of that conspiracy they intentionally caused death of Mahender Singh?
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2) Whether the prosecution has proved beyond reasonable doubt that on 6.11.2013, at place Banethi within the jurisdiction of Police Station, Nahan, the accused persons conspired with juvenile in conflict with law and in pursuance of that conspiracy they committed decoity of truck bearing No. HP63A-2194 and iron bars loaded in said truck and in the commission of such decoity they committed murder of its driver Mahender Singh?"
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24. Prosecution in order to connect the accused persons with the charged rt offences had laid down the following circumstances:
"1. Missing of truck bearing No. HP63A-2194 along with iron bars from Kala Amb.
2. Recovery of truck bearing No. HP63A-2194 along with iron bars from the possession of accused persons.
3. No explanation is given by accused persons regarding their possession over truck bearing No. HP63- 2194 loaded with goods (which was stolen property).
4. Taking into possession of blood stained clothes of accused persons.
5. Disclosure of accused persons during the custody which led to the recovery of dead body of deceased driver and other incriminating articles.
6. Death of deceased Mahender Singh was homicidal.
7. In SFSL report DNA profile obtained from the clothes of accused persons was matched with DNA profile of deceased Mahender Singh.
8. No explanation is given by the accused persons regarding presence of blood of deceased Mahender Singh in pant and shirt of accused Vicky Rana."
25. The learned Court below answered each of the circumstance against the appellants and accordingly convicted ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 13 them. However, according to us, the Court below has not correctly set out the circumstances and the case is required to be considered .
in light of the following nine circumstances:
1. Whether all the accused persons or anyone of them was present at Kala Amb on 06.11.2013 and thereafter proceeded to Banedi where they hatched a conspiracy on the said date.
2. Whether the truck No. HP63-2194 was intercepted at of 3.10-3.15 p.m. as is the prosecution story.
3. According to the prosecution, all the appellants along with co-accused had made disclosure statement Ext. PW-1/A.
4. Where was the disclosure statement recorded. rt
5. Recovery of mobile phone of deceased from appellant Vicky Rana.
6. Cause of death.
7. When were the clothes alleged with blood stains taken into possession by the police.
8. On what date did the police party along with witnesses reach 'Dosadka' i.e. the spot where the alleged murder had taken place.
9. What was recovered and taken into possession at the spot.
1. Whether all the accused persons or anyone of them was present at Kala Amb on 06.11.2013 and thereafter proceeded to Banedi where they hatched a conspiracy on the said date.
26. However, the first and foremost question that arises for consideration is whether the appellants or anyone of them was present at Kala Amb on 06.11.2013 and hatched a conspiracy at Banedi. It is only when the presence of the appellants at Kala Amb is established that the case of the prosecution can proceed further because the specific charge framed against them is of hatching a criminal conspiracy punishable under Section 120-B IPC on the ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 14 allegation that when they on 06.11.2013 were at Banedi and agreed to do or cause to be done dacoity with murder.
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27. The sole witness examined by the prosecution is one Navneet Gupta (PW-1), who in his statement has categorically stated that "on 06.11.2013, one person had come to my shop to get his mobile repaired. This person was of young age having small of height and seemed to be Nepali". In his further statement, he names such person to be Anil and claims to have retained a copy of rt his driving licence. According to him, Anil had come all alone.
28. On the other hand, when PW-5 Sunder Singh is examined, he states that Naveen Gupta (PW-1) disclosed that on 06.11.2013, five 'Napalis' had come to his shop to sell the mobile and Naveen Gupta had purchased the mobile for Rs.300/-.
29. The I.O. PW-15 Manish Chauhan goes a step further by stating that accused Prem had sold his mobile of Intex make to one Naveen Kumar on 06.11.2013. Thereupon, they went to Kala Amb where Intex phone along with copy of driving licence of accused Prem was taken into possession vide memo Ext. PW-1/A. PW-1 Naveen had also identified accused person, who had sold the above named phone to him.
30. As would be evident from the aforesaid statements, it was PW-1, who is the sole eye witness of the case regarding the ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 15 identification of one of the accused Anil and the other co-accused have not at all been identified at Kala Amb. PW-5 has made .
exaggerations by stating that Naveen Gupta had disclosed by introducing five 'Nepalis' contrary to the statement of Naveen Gupta thereby rendering his evidence brittle. That apart, PW-15 Manish Chauhan states that it was accused Prem, who had sold his mobile of and also maintains that the accused had given his driving licence, whereas, no such driving licence has been produced during the rt course of trial.
31. In such circumstances, when the statements of PW-5 and PW-15 are found to be not only exaggerated, but to be blatantly false, it is extremely difficult to conclude that all the accused were present either at Kala Amb or for that matter at Banedi at the given time and place.
32. The principal ingredient of the offence of criminal conspiracy is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the appellants and the three other co-accused, who were juvenile. The agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation. As in all other criminal offences, the prosecution has ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 16 to discharge its onus of proving the case against the accused beyond reasonable doubt. The most important ingredient of the .
offence being the agreement between two or more persons to do an illegal act in a case where criminal conspiracy is alleged. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement of must manifest upon relying on principles established in the cases of circumstantial evidence. The evidence as to the transmission of rt thoughts sharing, the unlawful act is not sufficient.
33. In view of the clear enunciation of law on the criminal conspiracy repeatedly laid down by the Hon'ble Supreme Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the appellants herein and other three co-accused juveniles. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations or the conduct of the appellants. The evidence is shorn of even a passive acknowledgment of conspiracy of the appellants or other co-
accused, let alone heralding a clear and conscientious participation of the appellants in the conspiracy. This Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 172. Whether the truck No. HP63-2194 was intercepted at 3.10-3.15 p.m. as is the prosecution story.
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34. PW-3 Sunil Negi, who was S.D.P.O., Rampur, at the relevant time stated that he received a telephonic message from S.D.P.O., Rohru, Raj Kumar Chandel, on 07.11.2013 at about 2.30 of p.m. regarding missing of truck No. HP63-2194 with effect from 06.11.2013.
35rt On the other hand, PW-6 Raj Kumar Chandel, S.D.P.O., Rohru, states that Manoj (PW-12) and Sheetal had come to his office at day time around lunch. He called Dy.S.P., Rampur between 2-3.00 p.m., self stated that he could not tell the exact time and cannot further tell about the exact time gap after which the Dy.S.P., Rampur had informed him regarding interception of the vehicle.
36. The I.O. PW-15, on the other hand, states that 'naka' was laid down at Dakolar at about 2.45 p.m. and a truck was noticed at around 3.00 p.m.
37. PW-12 Manoj and Sheetal claim to have arrived on the spot at about 3.10-3.15 p.m. The time of arrival of both PW-12 Manoj and Sheetal at the given time is not at all possible as they admittedly were at Rohru at lunch time as per the statement of PW-6 and the shortest distance between Rohru and Rampur is 80 ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 18 kilometres and looking to the terrain and the condition of the road, it would take them at least 3-4 hours to reach Rohru.
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3. According to the prosecution, all the appellants along with co-accused had made disclosure statement Ext. PW-1/A.
38. According to PW-12 Manoj, the accused persons on of 07.11.2013 had been interrogated and told the police that they had killed the driver of the truck and regarding this statement memo Ext.
rt PW-5/A had been prepared which bore his signatures. He had not given any other further details of Ext. PW-5/A and in his cross-
examination stated that he could not recall exactly when the accused persons made such disclosure statement and self-stated that it was 5.00-6.00 p.m. on 07.11.2013.
39. Whereas, according to PW-5 HHC Sunder Singh, the accused persons on 08.11.2013 (and not on 07.11.2013, as stated by PW-12 Manoj) had made disclosure statement Ext. PW-5/A. What has been stated by him is only with regard to the confessional part of the statement and further states that no portion of Ext. PW-
5/A was read over to him and he had not mentioned the time of recording of Ext. PW-5/A.
40. Whereas, PW-15 Manish Chauhan, I.O. stated that Ext. PW-5/A was recorded on 08.11.2013 at 9.00-10.00 a.m. ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 19
41. Thus, there are major inconsistencies and contradictions in the statement of each of the witnesses regarding .
the date and time of recording of the disclosure statement.
4. Where was the disclosure statement recorded.
42. According to PW-12 Manoj, on 7.11.2013, the accused of persons were interrogated inside the police station in the area which was open type room, but then he specifically stated that he rt was standing in the gallery and cannot tell whether the appellants along with co-accused at the relevant time were replying simultaneously or together and then further went to state that since he was standing outside in the gallery, he was not in a position to state what was stated by the accused persons and further stated that except for the police officials and the said 'Nepalis', no-one-else was inside the police station.
43. Adverting to the testimony of PW-5 Sunder Singh, he in his statement states that disclosure statement was recorded on 08.11.2013 and does not talk about the same having been recorded in the presence of PW-12 Manoj and for that matter Sheetal or any other independent witness.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 2044. As regards the I.O. PW-15, he does not state regarding the presence of any independent witness at the time of making of .
the alleged disclosure statement Ext. PW-5/A.
5. Recovery of mobile phone of deceased from appellant Vicky Rana.
45. According to PW-12 Manoj, personal search of of accused Vicky Rana had been conducted at Dakolar and a mobile phone of the deceased Mahender Singh was recovered and on rt calling on the said mobile, it began to ring. Whereas, it is the specific case of the prosecution that the phone of Mahender Singh was not responding after 4.25 p.m. on 06.11.2013 which raised concern about his well being.
46. What is more interesting is that the said mobile phone allegedly belonging to Mahender Singh was neither taken into possession nor has it been produced in the Court. Even, the I.O.
has not made any statement regarding the recovery of the mobile of the deceased and even the I.O. does not talk about the phone being taking into possession.
6. Cause of death.
47. According to PW-5 Sunder Singh, the accused persons had disclosed that they strangulated the deceased with mufflers and the deceased jumped down the road and the accused also jumped ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 21 and it was then that one of the accused Prem Singh took off his T-shirt and strangulated Mahender Singh with the same. Even .
though, the statement may not be wholly admissible, yet, it needs to be noticed that the alleged T-shirt was neither recovered by the police nor was it taken into possession, nor there is any explanation regarding this T-shirt. He is also one of the witnesses, who visited of the spot Banedi and witness to recovery of stones, dead body, two mufflers and one T-shirt which T-shirt is not the one referred to rt above. Surprisingly, the recovery memo Ext. PW-2/A does not make mention either of taking into possession of dead body or the T-
shirt.
48. PW-2 Om Prakash, the independent witness, has stated that he visited the spot on 11.00 a.m. on 09.11.2013 where the police recovered two mufflers, blood stained soil, stones and dead body. However, he does not speak about the T-shirt, red jacket and two pieces of clothes and ligature (red with green strips). PW-14 Head constable, Rakesh Kumar, states that the police party along with accused persons visited the spot on 08.11.2013 and not on 09.11.2013, as stated by other witnesses and recovered mufflers, four stones and blood stained soil which were taken into possession vide memo Ext. PW-2/A, but does not state about taking into possession the dead body. In his cross-examination, he stated that ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 22 he had seen one red colour jacket, two other clothes, one other cloth was T-shirt and one more cloth was found on the spot, but none of .
these items has been produced in the court.
49. PW-9 doctor Pujan Jaswal stated that the cause of death of Mahender Singh was ligature (red and green striped) Ext.
PM1.
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50. However, according to the I.O. Manish Chauhan, the cause of death was ligature of red and blue in colour. He further rt states that he found on the spot two mufflers, some blood stained stones, some blood spots and dead body. All these articles were taken into possession vide memo Ext. PW-2/A. He, however, does not speak about red jacket, two pieces of cloth and T-shirt. As regards PW-12 Manoj, the accused persons had killed Mahender Singh by strangulating with mufflers Exts. PA-1 and PA-2.
7. When were the clothes alleged with blood stains taken into possession by the police.
51. PW-5 HHC Sudner Singh stated that blood stained clothes of the accused were taken into possession vide fard Ext.
PW-5/B on 08.11.2013 in police station, Rampur before proceeding to the spot of recovery.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 2352. Whereas, PW-14, Head constable, Rakesh Kumar stated that the clothes of the accused persons were taken into .
possession on 08.11.2013 after returning from the spot of recovery, which means on 09.11.2013, as it is the specific case of the prosecution that the spot was visited on 09.11.2013.
53. PW-15 Manish Chauhan though has not given any time of of the recovery of clothes of accused persons but stated that when he was at the spot along with appellants and other co-accused, then rt he was checking clothes of the accused persons and noticed that the same were having blood stains, therefore, the clothes of the accused persons were taken into possession vide memo Ext.
PW-5/B. As observed above, the spot as per the prosecution case was visited on 09.11.2013, whereas, the memo Ext. PW-5/B is prepared on 08.11.2013.
8. On what date did the police party along with witnesses reach 'Dosadka' i.e. the spot where the alleged murder had taken place.
54. According to PW-14, Head constable, Rakesh Kumar, the police party reached 'Dosadka' at about 7.00 a.m. on 08.11.2013 and the proceedings were completed by 12.00 noon.
55. However, according to independent witness PW-2 Om Prakash, he reached the spot at 11.00 a.m. on 09.11.2013.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 2456. Whereas, according to other independent witness PW-12 Manoj, the police party reached 'Dosadka' at about 5.00- .
600 a.m. on 9.11.2013.
9. What was recovered and taken into possession at the spot.
57. According to PW-14, Head constable, Rakesh Kumar, of he had seen red colour jacket and two other clothes at the spot and self-stated that one of the other clothes was T-shirt. The red rt jacket, T-shirt and one more cloth were brought by the police from the spot, but surprisingly, none of these clothes was produced before the Court below.
58. PW-12 Manoj stated that muffler which was found around the neck of the deceased was of violet colour and he had seen muffler Ext. PM1 and clothes of deceased Exts. PN1 to PN3 which were the same which were taken into possession by the police. Ext. PM1 was of red and green colour and according to him, all mufflers were lying near the dead body.
59. However, this statement appears to be totally false because it has specifically come in the statement of doctor Pujan Jaswal (PW-9) that Ext. PM1, PN1 and PN2 were handed over by him to the police. According to PW-2, all the accused persons had ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 25 strangulated deceased Mahender Singh with mufflers. Ext. PA1 and PA2.
.
60. Thus, what would be noticed from the aforesaid discussion is that there is complete absence of evidence with regard to presence of the appellants at Kala Amb or at Banedi on 06.11.2013. Further there are serious doubts regarding the story of of the prosecution about the time and place of the interception of the truck. The identification, discoveries and recoveries rt of incriminating articles, sealing of such articles and collecting of samples have not been proved by the prosecution by leading cogent, clinching and clear evidence much less unerringly pointing to the guilt of the appellants. If that was not enough, it would be noticed that there is no independent disclosure statement and only a joint disclosure statement is available on record and that too has not been duly proved on record.
61. Unfortunately, the learned Court below has completely over-looked and misappreciated all the aforesaid material and serious contradictions and infirmities in the investigation wherein it has failed to prove all the infirmities in the prosecution case little realizing that the accused persons cannot be convicted on pure moral conviction. False explanation cannot be used as an additional link to fortify the prosecution case. Suspicion, however ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 26 strong, it may be, cannot take the place of proof. A moral conviction, however, strong or genuine cannot amount to a legal .
conviction supportable in law.
62. The cardinal principle of criminal jurisprudence of a case can be stated to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral of conviction.
63. In this regard, it shall be apt to refer to the judgment of rt the Hon'ble Supreme Court in Rahul's case (supra) once again wherein it has been observed as under:
"42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered.
Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise."
64. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of the Hon'ble Supreme Court and the law is well settled that each and every incriminating circumstance must be clearly ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 27 established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the .
only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
The Hon'ble Supreme Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there of is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various rt circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by the Hon'ble Supreme Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 2865. It needs to be noticed that the learned Court below even though had formulated certain circumstances as per the .
prosecution case, as has been urged by the prosecution, but it failed to formulate the real and correct circumstances which could have connected the appellants with the charged offences.
66. Going by the prosecution story, it was incumbent upon of the prosecution to have first proved its charge regarding the first charge framed under Section 120-B IPC i.e. criminal conspiracy rt which point has neither been framed nor seriously adverted to by the learned Court below and it is thereafter that the other offences for which the appellants had been charged under Sections 302 and 396 IPC should have been proceeded with and answered accordingly.
67. What is more disturbing is the fact that despite the prosecution having failed to prove its case by leading cogent, clinching and clear evidence unerringly pointing to the guilt of the appellants, the Court below would still hold that mere stating of wrong dates by the witnesses regarding the recoveries is not sufficient to discard the testimonies only on account of the fact that such depositions were made after 3½ years of the incident and there could be a lapse of memory. The learned Court below has failed to take into consideration the stringent nature of punishment ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 29 provided for the offences and the basic law that more stringent the punishment, the cardinal principle is stricter the proof.
.
68. No doubt, in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock or horror at the time of of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and rt other witnesses, who also make material improvements while deposing in the court, it cannot be safe to rely upon such evidence.
The omissions in the instant case amount to contradictions in material particulars and go to the root of the case materially affecting the trial or the core of the prosecution's case and render the testimonies of the witness liable to be discredited.
69. The appellant Vicky Rana has been convicted merely on the basis of the DNA report which was simply tendered in evidence by the Public Prosecutor and it is more than settled that mere tendering or exhibiting a document would not prove its contents, more particularly, in absence of the techniques that were reliably applied by the Experts. In this background, it shall be apt to refer to once again the judgment in Rahul's case (supra) wherein the Hon'ble Supreme Court observed as under:
::: Downloaded on - 10/08/2023 20:34:51 :::CIS 30"38. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped .
into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for of examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples rt collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion."
70. Thus, having regard to the totality of the circumstances and the evidence on record, it is difficult to hold that the prosecution has proved the guilt of the appellants beyond reasonable doubts by adducing cogent, clinching and clear evidence unerringly pointing to the guilt of the appellants.
71. Not only this, the manner in which PW-14, who was declared hostile and has been permitted to be cross-examined leaves much to desire. Section 145 of the Evidence Act indicates ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 31 the manner in which the contradictions are brought about and the cross-examining Counsel shall put the part or parts of the statement .
which affirms the contrary to what is stated in evidence.
72. Section 145 of the Indian Evidence Act reads as under:
"145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous of statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to rt contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
73. At this stage, it would be appropriate to reproduce Sections 161 and 162 (1) Cr.P.C. and its proviso which read as under:
"161. Examination of witnesses by police.
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.::: Downloaded on - 10/08/2023 20:34:51 :::CIS 32
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this .
section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
[Provided that statement made under this sub-section may also be recorded by audio-video electronic means:] [Provided further that the statement of a woman against of whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, 3[section 376A, section 376AB, section 376B, section 376C, section rt 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.]"
"162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 33 permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the .
Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
(2) Nothing in this section shall be deemed to apply to any of statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.
rt Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
74. A careful reading of the aforesaid provisions would go to show that Section 162 of Cr.P.C. ensures that no statement made to the police which is reduced into writing be signed by the person who makes it and that no such statement or any record of such a statement, whether in a police diary or otherwise or a part of such statement or record shall be used for any purpose other than those stated in the section. They may be used by the accused or by the prosecution to contradict such witness in the manner provided under section 145 of the Indian Evidence Act, 1872 and when it is so used, ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 34 any part thereof may also be used in the re-examination of such witness, but only for the purpose of explaining any matter referred to .
in his cross-examination. It means that statements made to the police can be used for contradicting a prosecution witness in the manner indicated in Section 145 of the Evidence Act. Statements to the police are inadmissible in any inquiry or trial.
of
75. Section 162 of Cr.P.C. and its proviso came up for consideration before the Constitution Bench of the Hon'ble Supreme rt Court, in the matter of Tahsildar Singh and another vs. State of U.P AIR 1959 SC 1012. In the said matter, their Lordships of the Supreme Court held that the intention of the legislature in framing Section 162 of Cr.P.C. was to protect the accused against user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and its proviso intended to serve primarily the same purpose i.e. the interest of the accused. Their Lordships also indicated the procedure prescribed for contradicting a witness by his previous statement and held as under :
"The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 35 it which are to be used for the purpose of contradicting him. The proviso to S. 162 only enables the accused to make use .
of such statement to contradict a witness in the manner provided by S.145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. The argument that it would not be possible to of invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S. 145 of the Evidence Act rt clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B Stabbed C;
before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked "did you say before the police-officer that you saw a gas light?" and he answers yes, and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies: one is, it enables the accused to elicit by a purpose of cross-examination what the witness stated before the police-officer. If a police-officer did not make record of a witness's statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that there is no self- contradiction of the primary statement made in the witness-::: Downloaded on - 10/08/2023 20:34:51 :::CIS 36
box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The .
contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police- officer and what he actually made before him. In such a case the question could not be put at all : only questions to contradict can be put and the of question here posed does not contradict; it leads to an answer which is contradicted by the police statement."
rt In para 17 thereto, while highlighting the object to proviso to Section 162 of Cr.P.C., their Lordships held as under :
17. .....................The section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police-
officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
76. Similarly, in the matter of Hazari Lal Vs. State (Delhi Administration) (1980) 2 SCC 390, it has been held by the Hon'ble ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 37 Supreme Court that the statement made by the witness during the course of investigation cannot be used as substantive evidence and .
observed as under :
"Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time of when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such rt statement is so used any part thereof may also be used in the re- examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-
examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
77. Thus, what would be evident from a perusal of Section 145 of the Evidence Act that when it is intended to contradict the witness by his previous statement reduced into writing, the attention ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 38 of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be .
used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of of witness is drawn to that part and this must reflect in his cross-
examination by reproducing it. If the witness admits the part rt intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Under this provision, the Court cannot permit the complete cross-examination as has been done in the instant case.
78. The prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the one and only conclusion, i.e. the guilt of the accused.
79. In view of the aforesaid discussion and for the reasons stated above, we find the judgment rendered by the learned Additional Sessions Judge to be not sustainable in the eyes of law ::: Downloaded on - 10/08/2023 20:34:51 :::CIS 39 and the same is accordingly set aside. Consequently, the appeal is allowed and the appellants are ordered to be released forthwith, if .
not required in any other case.
80. The Registry is directed to prepare release warrants of the appellants. In view of the provisions of Section 437A Cr.P.C., the appellants are directed to furnish personal bonds in the sum of of Rs.50,000/- each with one separate and distinct local surety each of the like amount to the satisfaction of the learned Trial Court which rt shall be effective for a period of six months with a stipulation that in any event of SLP being filed against the judgment or on grant of the leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
81. Pending application(s), if any, also stands disposed of.
82. Records be sent back.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 10th August, 2023.
(krt) ::: Downloaded on - 10/08/2023 20:34:51 :::CIS