Punjab-Haryana High Court
Anil vs State Of Haryana on 11 March, 2015
Author: T.P.S. Mann
Bench: T.P.S. Mann
CRA No. 1093-DB of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
CRA No. 1093-DB of 2009
Date of Decision: March 11, 2015
Anil son of Pancham --Appellant
versus
State of Haryana --Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
---
Present : Mr. T.S. Sangha, Senior Advocate
With M/s. Ajay Jain and H.S. Sangha, Advocates,
for the appellant.
Mr. Randhir Singh, Additional Advocate General, Haryana
for the respondent-State.
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1. Whether Reporters of local papers may be allowed to see the
Judgment? Yes/No
2. To be referred to the Reporter or not? Yes/No
3. Whether the judgment should be reported in the Digest? Yes/No
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MAHAVIR S. CHAUHAN, J.
Convict Anil (here-in-after referred to as 'the appellant') has brought this appeal to assail correctness of judgment of conviction dated August 29, 2009/order of sentence dated August 31, 2009 whereby learned Additional Sessions Judge (Adhoc) Fast Track Court, Rewari (here-in-after referred to as 'the trial court') has convicted and sentenced him to rigorous imprisonment for life with fine amounting to Rs. 3000/- and in default of payment of fine to further simple imprisonment for a term of three months for an offence punishable under Section 302 of the Indian Penal Code, VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -2- 1860 (here-in-after referred to as the Penal Code); rigorous imprisonment for a term of two years with fine amounting to Rs. 1000/- and in default of payment of fine to further simple imprisonment for a term of one month for an offence punishable under Section 380 of the Penal Code; and rigorous imprisonment for a term of one year with fine amounting to Rs. 1000/- and in default of payment of fine to further simple imprisonment for a term of one month for an offence punishable under Section 454 of the Penal Code and all the substantive sentences have been ordered to run concurrently.
02. Put as concisely as one may, prosecution's chronicle indicates that Milind Rawat (here-in-after referred to as 'the complainant') and his wife Ranjana (here-in-after referred to as 'the deceased') were putting up in EWS House No. 647 (3rd floor), Housing Board Colony, Sector 06, Dharuhera. On April 23, 2008 complainant left his house at or around 08.00 a.m. for his office and returned home at or around 05.30 p.m. He called his wife but did not receive any response from her. Door of the house was lying open. On entering the house he spotted blood stains in a corner of the house wherefrom room and kitchen were accessible. On entering the room he found that the deceased was lying on the floor and her body was smeared with blood. Blood was oozing from her neck. There were injuries, with a sharp weapon, on her head, forehead, neck and stomach and her clothes were smeared with blood. Her neck was also strangulated. She did not respond to his call. On complainant's call his neighbour Ranjeet, accompanied by someone close to him, came to complainant's house and asked him to approach the police as it seemed to be a case of murder. Responding to complainant's phone call police reached the spot in a shortwhile. In police gypsy deceased was taken to Apex Trauma Centre, VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -3- Dharuhera where doctor declared her dead. Complainant narrated the entire sequence of events in his statement, Exhibit PH, before Sub Inspector Lal Chand (PW17) (here-in-after referred to as 'the Investigating Officer') whereupon a formal First Information Report (FIR, for short), Exhibit PH/1, came to be recorded by SI Ram Phool (PW9). Investigating Officer prepared Inquest Report, Exhibit PL. Responding to a call from the Investigating Officer, Photographer Ram Parshad (PW12) and Senior Scientific Officer, Dr. Basant Pal (PW2) reached the spot. Ram Parshad (PW12) clicked photographs, Exhibits P1 to P14 (with negatives P15 to P28) and Dr. Basant Pal (PW2) inspected the scene of occurrence, located a nose pin and its lock lying separately, some hair, and blood splashes on wooden door and floor of the room, prepared a report, Exhibit PD, and got the hair recovered by the Investigating Officer. On April 24, 2008 Dr. Basant Pal (PW2) recovered from the scene of occurrence and handed over to the Investigating Officer a portion of blood stained matress, Exhibit P42, blood stianed slippers, Exhibit P41, blood stianed hair, Exhibit P40 and blood stained earth. Dr. R.K. Singh (PW1) medico legaly examined the deceased vide medico legal report (MLR, for short), Exhibit PA, at 06.15 p.m. on April 23, 2008. On police request, a Board of Doctors, including Dr. J.S. Mehra (PW10), conducted post mortem on the dead body of the deceased and recorded in the Post Mortem Report (PMR, for short), Exhibit PK, that body of the deceased had following injuries:
A. a 1.5cms x 0.5 cms skin deep stab wound over the cervical region;
B. multiple bruise marks over the left labial fold and cheek;
C. multiple abraisons over the frontal aspect of skull region and on the left supra orbital area VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -4- of size 1.5 cms x 0.5 cms;
D. a 3.7 cms x 2.5 cms bruise and swelling over the occipital region;
E. two, 2 inches x 2.5 cms each, stab wounds over supra-umbilical region penetrating the underlying visrea, stomach and large intestine leading to haemoperitonium and huge collection of blood inside the peritoneal cavity;
F. hyoid bone was fractured at both cornu, haemoperitonium was present due to stab injuries over the abdomen with collection of blood, there was rupture of stomach wall and transverse colon, there was a nulliparious uterus, and there were no vaginal injuries or semen stains over the parts.
In the opinion of the Board of Doctors cause of death of the deceased was stab injuries over the abdomen leading to haemoperitonium and stabbing and semi strangulation over the cervical region. All the injuries were ante mortem in nature and were sufficient to cause death in the normal course. Probable time that elapsed between the injuries and death was 24 to 36 hours and between death and post mortem 16 to 20 hours.
03. On April 27, 2008 complainant appeared before the Investigating Officer and suffered a supplementary statement, Exhibit DA, revealing therein that on the night intervening April 26 and 27, 2008 he went to house of the appellant, ie. House No. 685, Housing Board Colony, Sector 06, Dharuhera but despite his best efforts he did not wake up. He noticed that on appellant's face there were scratch marks and a finger of his right hand was bandaged. As appellant did not wake up, he (the complainant) returned to his house and on checking briefcase he found that cash amounting to Rs. 5000/-and a ring kept by the deceased in her purse and her "Mangal Sutra" and his one shirt were missing. As the appellant alone was on visiting terms with him and was found missing from his house on complainant's second visit and had not come to condole death of the VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -5- deceased, he (the complainant) suspected him (the appellant) to have committed murder of the deceased and theft of the missing articles. On enquiry, Brij Bihari (PW11), Deputy Manager of the concern where appellant was working, vide certificate, Exhibit PL/1, revealed that the appellant had been running absent from duty since April 23, 2008 and he (as employer) had sent him a notice, Exhibit PM, in this regard.
04. On April 29, 2008 Investigating Officer, on identification of the complainant, apprehended the appellant when he was alighting from a bus at Bus Stand, Dharuhera. He (the appellant) produced before the Investigating Officer two prescription slips of Apex Trauma Centre, Dharuhera, Exhibits P29 and P30, and on being interrogated, appellant suffered disclosure statement, Exhibit PX. On April 30, 2008 he suffered another disclosure statement, Exhibit PR, and thereby disclosed that he had kept concealed one "Mangal Sutra" (Exhibit P32), one gold ring (Exhibit P31) and six five hundred-rupee currency notes (Exhibit P33 to P38) total amounting to Rs. 3000/- wrapped in a polythene paper, one knife (Exhibit P1), one plier (Exhibit P2), two plastic ropes (Exhibit P3), two shirts (Exhibits P31 & 32), one "payjami" (trousers) (Exhibit P34), and a "Banian" (Exhibit P33) in front of his house, and not on a hillock in village Dungda, as disclosed earlier, led the police party to the disclosed place and got recovered the aforestated articles vide memorandum, Exhibit PS. One shirt, knife, plier, and pieces of plastic rope seemed to be blood-stained. "Mangal Sutra" and gold ring were identified by the complainant as belongings of the deceased and one shirt as his belonging. Blood-stained shirt, knife, plier, and pieces of plastic rope, as also strands of hair and other articles recovered from the scene of occurrence, a strand of hair recovered from hand of the deceased VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -6- and strand of hair clipped from appellant's head, were sent to Forensic Science Laboratory, Madhuban, Karnal (for short, FSL) from where three reports, Exhibit PZ/3, Exhibit PX and Exhibit PY, were received. In report, Exhibit PZ/3, it was revealed that the strands of hair were found to be "human in origin" but no opinion as regards their similarity could be given, while report, Exhibit PX, stated that no Deoxyribonucleic acid (DNA) was possible since no quantifiable DNA could be obtained and report, Exhibit PY, revealed that Lady's shirt, Salwar, Sameez, Dupatta, Brassier, underwear, matress (razai) piece, blood, and knife had human blood grouping whereof had remained inconclusive while the other articles were said to be "material disintegrated".
05. During investigation, Dharam Pal (PW3) prepared a scaled site plan of the place of occurrence (Exhibit PE), and Investigating Officer also recorded statemets of witnesses besides preparing a rough site plan of the place of occurrence, Exhibit PW.
06. When investigation in the matter was complete, Inspector Sadhu Ram (PW4) prepared a final report which was submitted before the learned Area Magistrate.
07. After hearing the prosecutor and the defence learned Sessions Judge, Rewari charged the appellant under Sections 302, 454 and 380 of the Penal Code. Appellant pleaded not guilty to the charge and claimed to be tried.
08. Prosecution examined Complainant Milind Rawat (PW13) to reiterate its case as contained in statement, Exhibit PH; Dr. R.K. Singh (PW1) in proof of medico leagal report, Exhibit PA; Dr. Basant Pal (PW2) to say that he inspected the scene of occurrence and made some recoveries VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -7- to be effected; Dr. J.S. Mehra (PW10) to prove post mortem report, Exhibit PK; Brij Bihari (PW11) to state that the appellant had been running absent from his duty since the day of the occurrence; Sub Inspector Om Parkash (PW7) and Sub Inspector Lal Chand (PW17) to bring on record various steps taken during the course of investigation; and formal witnesses, namely Constable Dharam Pal (PW3), Inspector Sadhu Ram (PW4), Constable Jai Singh (PW5), Constable Krishan Chander (PW6), Constable Narinder Singh (PW8), Sub Inspector Ram Phool (PW9), Photographer Ram Parshad (PW12), Constable Sandeep Kumar (PW14), Head Constable Surinder Kumar (PW15), and Head Constable Shish Ram (PW16).
09. When examined under Section 313 of the Criminal Procedure Code, 1973 (for short, ''the Code'), appellant denied all the incriminating circumstances and reiterated plea of his innocence and false implication but did not lead any evidence in his defence.
10. After hearing the prosecutor and the defence and on appraisal of the evidence, learned trial court concluded that the prosecution was able to prove appellant's guilt beyond reasonable doubt and, accordingly, convicted and sentenced him as here-in-before stated.
11. We have heard Mr. T.S. Sangha, Senior Advocate assisted by M/s. Ajay Jain and H.S. Sangha, Advocates, for the appellant and Mr. Randhir Singh, Additional Advocate General, Haryana for the respondent- State.
12. Learned senior counsel representing the appellant has argued that prosecution story is a pack of lies and carries no substance besides being highly improbable. Appellant is not named in the FIR; no motive to commit the offence could be attributed to him; there is no evidence to VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -8- connect him with the crime; and the articles stated to have been recovered on April 30, 2008 vide memorandum of recovery, Exhibit PS, pursuant to disclosure statement, Exhibit PR-which has remained unproved, are shown to have been despatched to FSL on April 28, 2008 and to have reached there on April 29, 2008 as evidenced by report, Exhibit PY. This is indicative of the fact that appellant was in illegal custody much prior to April 29, 2008- the day on which he is shown to have been arrested, and the recoveries have been planted upon him after he was named as a suspect by the complainant in his supplementary statement, Exhibit DA, recorded on April 27, 2008. Learned senior counsel has also submitted that it is quite improbable that the occurrence took place in a house located in a thickly populated area in broad day light, yet no body in the neighbourhood heard the noise and saw the appellant coming to and going from the scene of occurrence and the complainant did not raise any hue and cry on seeing his loving wife lying dead in front of him in a pool of blood and did not call the appellant, the only person known to him in the locality and Ranjeet, who according to the prosecution was called by the complainant to the spot, has not been examined as a witness. According to learned senior counsel while there is no evidence to show that the deceased was sexually assaulted, it is evident from the evidence available on record that "Mangal Sutra" and gold ring have been falsely planted upon the appellant by the prosecution.
13. Per Contra, learned Additional Advocate General, Haryana appearing for the respondent-State has argued, with no less vehemence, that the appellant was the only person who used to visit complainant's house; he was found to be absent from his duty on the day of occurrence and continued absenting even thereafter; he did not wake up even on repeated VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -9- and concerted efforts put in by the complainant on the night intervening April 26 and 27, 2008 and disappeared from his house in the following morning; signs of scuffle were noticed on his perspon as evidenced by prescription slips, Exhibits P29 and P30 produced by him before the Investigating Officer at the time of his arrest; missing belongings of the deceased and a shirt belonging to the complainant, as also a knife and plier have been recovered pursuant to his disclosure statement; and inspite of being the only acquaintance of the complainant he did not come to condole death of the deceased. These circumstances, if seen cummulatively, leave no room to doubt according to learned State counsel.
14. Nothing more has been argued on either side.
15. Learned trial court, to convict the appellant, has mainly relied upon depposition of the complainant as PW13. In his deposition, in addition to what was stated by him in his statement, Exhibit PH, complainant stated that on the night intervening April 26 and 27, 2008 he went to house of the appellant but despite his best efforts the appellant did not wake up and he had to spend whole night in the courtyard of appellant's house but while trying to awaken the appellant he noticed that on appellant's face there were scratch marks and a finger of his right hand was bandaged and that when he went again to appellant's house in the morning he found the house to be locked and appellant missing therefrom. Another circumstance relied upon by the learned trial court is recovery of treatment slips from appellant's pocket and recovery of stolen articles and weapon of offence pursuant to appellant's disclosure statement, Exhibit Exhibit PX. Referring to opinion of Dr. J.S. Mehra (PW10) that the stab wounds found on the person of the deceased could be caused by a weapon having both VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -10- sides sharp, learned trial court has pointed out that the defence ought to have asked the doctor if such stab wounds could be caused by the knife recovered at the instance of the appellant. These circumstances, in view of the learned trial court, complete the chain of circumstances leading to the conclusion that the appellant alone was responsible for killing the deceased. On scrutiny of the evidence available on record and in view of the settle position of law that in a case based on circumstantial evidence every hypothesis of innocence of the accused must be ruled out and suspicion, howsoever strong, cannot take place of proof, we find ourselves unable to subscribe to the view expressed by the learned trial court.
16. While death of the deceased otherwise than under normal circumstances is not in doubt but time of receipt of injuries by her is highly doubtful. It is claimed by the prosecution that when complainant left home at or around 08.00 a.m. on April 23, 2008, the deceased was hale and hearty but she was found dead when he returned home at or around 05.30 p.m. on that day. It means that the deceased met her ultimate between 08.00 a.m. and 05.30 p.m. on April 23, 2008. It is recorded in PMR, Exhibit PK, that dead body of the deceased was subjected to autopsy at 12.50 p.m. on April 24, 2008 and probable time that elapsed between death of the deceased and post mortem was 16 to 20 hours and between receipt of injuries by the deceased and her death 24 to 36 hours. So calculated, time of death of the deceased comes to somewhere between 04.50 p.m. and 08.50 p.m. on April 23, 2008 and the time of receipt of injuries by her comes to somewhere between 03.50 p.m. and 7.50 a.m. on April 21, 2008. This rules out receipt of injuries by the deceased between 08.00 a.m. and 05.30 p.m. on April 23, 2008. To put it straight, deceased had received injuries much before the VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -11- complainant claims to have left his house at or around 08.00 a.m. on April 23, 2008. This falsifies complainant statement that when he left his house at or around 08.00 a.m. on April 23, 2008, the deceased was hale and hearty. Prosecution has not verified the correctness of complainant's claim that he had left his house at or around 08.00 a.m. on April 23, 2008 and had attended to his duties on that day and that the deceased was hale and hearty when the complainant statedly left for his duty on the fateful day. Ranjeet and his close friend, who, as per case of the prosecution, reached the spot of occurrence on being called by the complainant have not been examined as witnesses to throw light on the circumstances obtaining on the scene of occurrence when they reached there. It is claimed by the complainant while appearing as PW13 before the learned trial court that in the locality appellant was the only person he was acquainted with. If normal conduct of a person of ordinary prudence is any guide, in the circumstances prevailing at his house, complainant should have called the appellant to the spot or would have, in the least, informed him of the occurrence. Complainant's decision not to communicate with his only acquaintance in the locality (the appellant) and, instead, to call Ranjeet to the spot and prosecution's reluctance to examine said Ranjeet as a witness speak volumes as regards veracity of the prosecution story.
17. Place of occurrence is an EWS (Economically Weaker Section) flat- may be a one room set, on third floor of the building. Such flats are in the form of groups or say there must be more than one flat-close to one another, on each floor. It is not the case of the prosecution that the deceased was poisoned and died silently. On the body of the deceased, as per post mortem report, there were as many as four visible injuries with a sharp VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -12- edged weapon. Hands and feet of the deceased are not shown to be tied and her mouth not gagged. Therefore, she must have struggled to save herself and must have cried aloud for help. Door of the flat, as per the complainant (PW13), was lying open when he returned home in the afternoon. The culprit walked away carrying along the blood stained weapon of offence, a blood soaked shirt and other articles. Surprisingly, no one from the neighbouring flats is shown to have been attracted to the spot by cries of the deceased or to have noticed the culprit coming to and going from the scene of occurrence.
18. Going by the story of suspicion, the appellant being the only person on visiting terms with and known to the complainant, suspicion, if any, ought to have fallen upon him. But it is quite amazing to note that the complainant not ony avoided naming the appellant as suspected of commission of the crime but also did not attempt at finding out if any of the belongings of the deceased had been stolen till April 27, 2008. However, the complainant did not name the appellant even as a suspect in his initial statement, Exhibit PH, suffered by him on April 23, 2008. In his supplementary statement, Exhibit DA, suffered by him on April 27, 2008, and while appearing as PW13 before the learned trial court the complainant has introduced the appellant by stating that on the night intervening April 26 and 27, 2008 he went to house of the appellant but despite his best efforts the appellant did not wake up and he had to spend whole night in the court yard of appellant's house but while trying to awaken the appellant he noticed that on appellant's face there were scratch marks and a finger of his right hand was bandaged. When he came to his house and checked briefcase of the deceased, he found that an amount of Rs. 5000/-, a gold ring and VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -13- "Mangal Sutra" of his wife (the deceased) were missing, he went again to appellant's house in the morning (of April 27, 2008) and found appellant's house to be locked and appellant missing therefrom. Prosecution also claims to have recovered, vide memorandum of recovery, Exhibit PP, two slips indicating treatment of the appellant in Apex Hospital, Dharuhera. However, prosecution has failed to explain as to why did the complainant go to appellant's house on the night intervening April 26 and 27, 2008 and not before that; why did he sleep in the courtyard of appellant's house on that night and did not return to his own house; why did he not inform the police immediately on seeing injury marks on appellant's person and after the articles referred to in his statement, Exhibit DA, were found missing; why did he not check the belongings of the deceased immediately on finding her lying injured or soon thereafter and waited to do so till April 27, 2008; why could he not spot at the very first instance that "Mangal Sutra"
was missing from neck of the deceased; and why did he go back to appellant's house in the morning of April 27, 2008? Complainant, Milind Rawat while appearing as PW13 and Investigating Officer, SI Lal Chand while appearing as PW17 have stated that on being arrested on April 29, 2008, appellant produced before the Investigating Officer two chits, Exhibits P29 and P30 showing his treatment in Apex Hospital, Dharuhera. These chits do carry name "Anil" but do not carry age, name of father and address of said Anil. Chit, Exhibit P29 does not even carry date of its issue and signature/initial of the doctor. Author of the chits has been kept away from the witness stand. Record of the hospital with regard to treatment of the person named in the chits has remained unproved. In view of these circumstances reliance placed by the learned trial court on these chits is VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -14- found to be totally misplaced.
19. Prosecution has made another attempt to connect the appellant with the crime by bringing on record that after his arrest on April 29, 2008 from Bus Stand, Dharuhera appellant suffered disclosure statement, Exhibit PX, on April 29, 2008 and thereby disclosed that he had kept concealed the "Mangal Sutra", gold ring, an amount of Rs. 3000/4000, and clothes on a hillock in his village, Dunga, District Porigarhwal (Uttrakhand) but later on made another disclosure statement, Exhibit PR, on April 30, 2008 and thereby disclosed that he had made statement, Exhibit PX incorrectly and the articles referred to above were, in fact, kept concealed by him in a ditch in front of his house, i.e. House No. 685, Sector 06, Housing Board Colony, Dharuhera and ultimately got recovered, vide memorandum, Exhibit PS, gold ring-Exhibit P31, "Mangal Sutra"-Exhibit P32, six 500-rupee currency notes, Exhibits P33 to P38, a knife-Exhibit P1, a plier-Exhibit P2, rope- Exhibit P3 and clothes-Exhibit P39. Astonishingly, the above stated articles (except the gold ring and "Mangal Sutra"), though recovered on April 30, 2008, were handed over to Constable Narinder Singh (PW8) on April 29, 2008 (as revealed by him in his affidavit, Exhibit PG) and were received in Forensic Science Laboratory, Madhuban, Karnal on April 29, 2008 alongwith forwarding memorandum No. 174-R dated April 28, 2008 of Deputy Superintendent of Police, Rewari. How a forwarding memorandum could be recorded on April 28, 2008 and how the articles could be handed over to PW8, Constable Narinder Singh and delivered by him at the FSL on April 29, 2008 even before these were recovered on April 30, 2008, is a riddle that has remained unanswered and is sufficient to trash prosecution story.VIRENDRA SINGH ADHIKARI
2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -15-
20. As per memorandum of recovery, Exhibit PO, samples of hair from the hand of the deceased, nails, injuries on neck and from the clothes worn by her were taken in possession and vide memorandum of recovery, Exhibit PF, hair of the appellant were taken in possession. But serological examination of these samples, as recorded in report, Exhibit PX, has remained inconclusive and no DNA could be conducted.
21. Knife, Exhibit P1, stained with blood is shown to have been recovered vide memorandum, Exhibit PS pusuant to a disclosure, Exhibit PX, statedly made by the appellant. A knife, as is well known, has only one edge sharp and it is nobody's case that knife, Exhibit P1 had both its edges sharp. But according to Dr. J.S. Mehra (PW10)' "the stab wounds in this case could be caused by a weapon, which was sharp on both sides". This would mean that knife, Exhibit P1, was not used to cause injuries on the person of the deceased and it perforce comes out that it has been falsely planted by the prosecution. Learned trial court has refused to give benefit of this very material circumstance to the appellant by saying that the defence ought to have confronted the doctor with knife, Exhibit P1, and seek his opinion if the injuries on the person of the deceased could or could not be result of use thereof. We regret our inability to subscribe to the view of the learned trial court because going by Indian criminal jurisprudence it was for the prosecution to prove that injuries were caused on the person of the deceased by knife, Exhibit P1, and the defence was not expected to bring negative proof.
22. In case based on circumstantial evidence motive plays a very vital role. However, in the case on hand prosecution has failed to attribute any motive, whatsoever, to the appellant. Motive for killing a lonely VIRENDRA SINGH ADHIKARI 2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -16- housewife could either be her refusal to satisfy culprit's sexual desire, or her resistence to commission of theft or enmity of the culprit with the family. Medical evidence available on record in the form of PMR, Exhibit PK, and MLR, Exhibit PA, as also statements of Dr. R.K. Singh (PW1) and Dr. J.S. Mehra (PW10) does not point out towards sexual assault upon, or attempt to sexually assault, the deceased. Complainant Milind Rawat in his statements, Exhibit PH and Exhibit DA and in his deposition as PW13 does not state a word to suggest that the appellant has been inimically disposed towards him and/or his wife-the deceased. What has been observed here-in-above with regard to the memorandum of recovery, Exhibit PS, vis a vis FSL Report, Exhibit PY, rules out theft of any articles belonging to the complainant and/or the deceased by the appellant. Even otherwise, if theft were the motive, the culprit would have plundered complainant's house because after the deceased had been killed there was none to resist him in so doing. There is no evidence in this direction.
23. It would stand repetition that suspicion, howsoever strong, cannot take place of proof. In view of the circumstances here-in-before enumerated, doubt exhibited by the complainant towards appellant's culpability has remained unsubstantiated but these circumstances somehow escaped notice of the learned trial court. Therefore, findings recorded by the learned trial court cannot be allowed to sustain.
24. In the consequence, we accept the appeal, set aside the impugned judgment of conviction and order of sentence and acquit the appellant of the offences of which he has been charged and convicted.
25. Amount of fine if already deposited by the appellant shall be refunded to him as per procedure known to law.VIRENDRA SINGH ADHIKARI
2015.05.04 13:06 I attest to the accuracy and authenticity of this document High Court Chandigarh CRA No. 1093-DB of 2009 -17-
26. Bail bonds of the appellant are discharged.
[T.P.S. Mann] [Mahavir S. Chauhan]
Judge Judge
March 11, 2015
adhikari
VIRENDRA SINGH ADHIKARI
2015.05.04 13:06
I attest to the accuracy and
authenticity of this document
High Court Chandigarh