CR.A/353/2019 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.A. No. 353 of 2019 Reserved on: 27.12.2023

Decided on: 29.12.2023 Sukh Ram Urav ...Appellant Versus State of H.P.

…Respondent

Coram:

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 No. For the Appellant : Ms. Shradha Karol, Advocate. For the Respondent: Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma and Ms. Sharmila Patial, Addl. A.Gs. And Mr. J. S. Guleria, Dy. A. G. Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced to undergo rigorous life imprisonment for the offence punishable under Section 302 IPC and to pay a fine of Rs. 10,000/- and also sentenced to undergo one year rigorous imprisonment for the offence punishable under Section 201 IPC and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo simple imprisonment for one month and aggrieved thereby has filed the instant appeal. 1 Whether reporters of the local papers may be allowed to see the judgment? yes

2. Brief facts of the case are that the complainant Jang Bahadur had constructed a house in his orchard and at some distance from his house, he had constructed a Dhara in which the appellant was residing alongwith his family for the last 18-19 years. Sukh ram, brother of the appellant alongwith his son Hari Shankar was also residing in this Dhara with the appellant for the last about one and half years.

3. On 12.05.2016, at about 2:20 p.m. when the complainant was going towards his orchard,, he noticed that one person was lying near the Dhara and the appellant was also standing there. The complainant asked the appellant as to what he was doing, but he did not respond and threw that person down. The complainant tried to inform the Police Station Reckong Peo, but the call did not mature and thereafter he telephonically contacted HHC Mast Ram, who was known to him, asking him to report the matter to the Police Station Reckong Peo. Thereafter, the complainant noticed that the appellant brought a sack and threw it in the orchard and after throwing the sack, the appellant ran towards the hospital, but the complainant intercepted him. In the meantime, police came at the spot and took the appellant to the place where a man was seeing lying down smeared with the blood and with injuries and found to be dead. Thereafter, the police went in the Dhara and noticed that blood lying on the floor was cleaned.

4. On the basis of the statement of the complainant under Section 154 Cr.P.C., FIR No. 34/2016 was recorded at the Police Station. After investigation challan was put in and after committal, charges against the appellant for the offence punishable under Sections 302 and 201 IPC were framed on 14.11.2017.

5. In order to prove the charges prosecution examined as many as 15 witnesses. Thereafter, the statement of the appellant was recorded under Section 313 Cr.P.C. where he denied the case of the prosecution.

6. The learned trial Court after recording evidence and evaluating the same convicted the appellant as aforesaid, constraining him to file the instant appeal.

7. It is vehemently argued by Ms. Shradha Karol, learned Advocate that the findings recorded by the learned Court in absence of there being any scientific evidence like finger prints etc. is clearly perverse, therefore, deserve to be set aside. She additionally argued that there was nothing on record to suggest that the appellant had been murdered, rather the nature of the injuries clearly not only suggest but go to indicate that the deceased had died because he had fallen off the wall.

8. On the other hand, Ms. Sharmila Patial, learned Additional Advocate General, would argue that even though this is a case of circumstantial evidence but the chain of

circumstances is complete and as regards the scientific evidence, there has been DNA profiling done in the instant case, which establishes the guilt of the appellant beyond all reasonable doubts. We have heard learned counsel for the parties and have gone through the record carefully.

9. In order to appreciate the rival contention of the learned counsel for the parties, it would be necessary to refer to the oral and documentary evidence that has come on record.

10. The complainant Jang Bahadur appeared as PW-1 and stated that one Sukh Ram alongwith his wife and two children was residing in the Dhara for the last 17-18 years. The appellant had started living with Sukh Ram about 1 ½ months prior to the incident. On 12.05.2016, at about 2:30 p.m., when he was going towards orchard at Yuvarangi and reached near the Dhara of Sukh Ram, he noticed the appellant Sukh Ram Urav to be standing there and one person lying down on the ground. When he enquired from the appellant as to what he was doing there, the appellant did not respond. Thereafter, he concealed himself and started watching the appellant. He then saw the appellant dragging and pushing down the aforementioned man, who was lying down on the ground. Thereafter, the appellant went inside the Dhara and came out after sometime with a sack and thereafter he went away from the Dhara and threw the sack

in the orchard. He further deposed that since he suspected commission of some offence, he made a telephone call to the Police Station, Reckong Peo but the call did not mature as the phone was found busy. Thereafter, he contacted HC Mast Ram to intimate the police, who in turn, intimated PW-3 C. Vikas Guleria, who was posted as M.C. at Police Station Reckong Peo and recorded Rapat No. 35, Ext. PW-3/A and issued certificate Ext. PW-3/B in respect of the proper functioning of the computer system. The witness further deposed that he had seen the appellant going towards Regional Hospital, Reckong Peo and had again intercepted and confronted him as to where he was going but the appellant remained mum. In the meanwhile, police arrived there and he went to the spot with the police and saw a person smeared with blood and was having injuries on his head. In the meantime, many persons assembled there. The deceased was identified as Chander Badai, resident of Jharkhand and from the spot it was appeared that the deceased was assaulted inside the Dhara.

11. He further deposed that the police recorded the statement Ext.PW-1/A and later he came to know that the appellant and deceased had been working with the contractor and the deceased used to mark the presence of the labourer and on account of dispute with respect to attendance, an altercation had taken place inter se the deceased and the appellant. The

police arrested the appellant on 14.05.2016 and while in custody the appellant had made a disclosure statement that he had concealed a pair of shoes of deceased and two bowls in a bush along the side of the kacha road leading from hospital towards his orchard. His statement Ext. Ex.PW-1/B was recorded upon which the appellant appended his thumb mark and the complainant signed the same as witness. Thereafter, on demarcation of the appellant, a pair of shoes and two bowls in bush along the side of the kacha road leading from hospital were recovered and the articles were identified by the daughter of the deceased Seema Devi and the shoes and bowls were sealed in a separate parcels and taken into possession.

12. Raj Kumar, who remained associated with investigation was examined as PW-2 and stated that on 12.05.2016, the police had taken into possession one jute sack with reddish patches, which was thrown at a distance of 20 meters from the Dhara which was sealed and wrapped in a parcel and the same was sealed with seal 'T'. The police had also taken into possession from the Dhara a kitchen knife, a silwatta (stone grinder), a piece of blanket having blood patches cut from blanket spindle shaped knife, two glass bottles out of which one was having half of liquor and another small quantity of liquor and the blood samples scratched from the door of the Dhara and

from a stone lying outside the Dhara, which were sealed in separate parcels.

13. Photographer Sher Singh was examined as PW-4 and stated that he had developed the photographs Ext. PA-1 to Ext. PW-53 and CD Ext. PW-54 and prepared certificate Ext. PW-4/A.

14. C. Praveen Kumar, who was present at the time of investigation was examined as PW-5 and stated that he was present at the time of investigation with PW-2 Raj Kumar and articles were taken into possession vide memo Ext. PW-2/C and had also witness to the disclosure statement PW-1/B and pair of shoes Ext.P-3 and bowls Ext.P-4 and Ext. P-5 were recovered and thereafter identified by Seema Devi, daughter of the deceased and taken into possession vide memo Ext. PW1/C. He further deposed that sample seal Ext. PW-5/A was drawn on separate piece of cloth and he had also deposited the parcels and two sealed envelopes handed over to him by the Medical Officer at P. H. Reckong Peo on 13.05.2016 and deposited with MHC Rajiv Kumar. On 15.05.2016, MHC vide R. C. No. 23/2016 had handed over the articles to him with a direction to deposit the same with FSL Junga and after depositing he handed over the receipt to MHC.

15. Dr. Vikas Sharma, who had conducted the post- mortem of the deceased on the request of the police Ext.PW-6/A,

dated 13.05.2016, was examined as PW-6, wherein he found the following ante mortem injuries on his person-

1. A bone deep laceration wound measuring 4cm. X 1cm and 3.5cm x 1cm with depressed communited fracture measuring approximately 5cm in left temporal bone with sub galial haematoma.

2. Another bone deep lacerated wound measuring 2.5cm x 1.5cm with underlying depressed communited fracture measuring 3cm on left frontal reason with sub galial haematoma

3. Another lacerated sound measuring 2.5 cm x 0.5 cm on right zygomatic arch with associated fracture of right floor of orbit.

4. Multiple deep lacerated wound on left mastoid, left supra orbital, right frontal and right lateral aspect of upper lip. 5.. Avulsive injury on left ear lobule superiority.

6. Subdural haematoma involving whole of the left cerebral hemisphere with seen with temporal muscle contusion.

16. He further deposed that he had taken viscera of deceased and blood sample on FTA card and urine and handed over the same to the police and he has affirmed his opinion that cause of death was due to ante mortem blunt traumatic brain injuries probably time that lapsed between injuries and death was opined to be immediate whereas between death and autopsy between 12 to 24 hours. He issued his report Ext. PW- 6/B and subsequently on 02.08.2016, after perusal of FSL report Ext. PX, he affirmed his earlier opinion and issued opinion Ext.

PW-6/C. On 08.08.2016, the police had produced a sealed parcel having six seal impressions, out of which five were having seal impression 'T' and another no legible. On opening the parcel, a stone had been found therein and having seen the weapon of offence and had given his opinion Ext. PW-6/D and had not ruled out the possibility of the all the aforementioned ante-mortem injuries having been inflicted with the stone and weapon of offence was thereafter sealed with seal impression 'CMO' alongwith his opinion and identified the stone Ext. P-18, which was shown to him. On being cross-examined, he denied that the ante mortem injuries could have been sustained by suffering an accidental fall and injuries could have been caused by any other blunt weapon.

17. Dr. Vikas Sharma was examined by the prosecution as PW-7, who had examined the appellant and found the blood stains over his pant, T-shirt and right shoe. All the aforementioned articles were taken into possession by the police and thereafter sealed in a parcel. Besides above, sample of his nail clipping and scrapping and of blood stains observed below his left eye, swab from abrasions from both elbow region and of blood and urine sample with another sample on FTA card were taken. Multiple reddish mudded abrasions were found on both forearm and elbow. Besides above, abrasions on left knee and left shin, right gluteal region and blood stain was found below left

eye and middle and ring finger of left hand. Sealed samples of the aforementioned samples was prepared and in this behalf, he has issued MLC Ext. PW-7/A and injuries on the person were found simple caused within probable duration of 12 hours. Subsequently, after perusal of FSL report produced by the police before him, he found that the appellant had consumed alcohol and was under the influence thereof and in this behalf had given opinion Ext. PW-7/B. This witness on being cross-examined, denied that no blood stains had been found on the clothes, shoe and below his left eye.

18. Seema Devi, daughter of the deceased, was examined as PW8 and identified the bowls Ext.P-4 and Ext. P-5 of her father. She further deposed that she had brought some food in bowls to her father and deceased Chander Badai was also working and staying at Reckong Peo, a day before the incident in question and she alongwith her father came to see her father and during investigation, she identified both the bowls and pair of shoes of deceased which were taken into possession vide memo Ext. PW-1/C.

19. Rajiv Kumar is the MHC with whom the case property was deposited and he while appearing as PW-9 proved on record the necessary entries made in the Malkhana Register as per extract Ext. PW-9/A and vide R.C. Ext PW-9/B sent the case property to FSL, Junga. He further deposed that case property

had been deposited with him on 13.05.2016 and 14.05.2016 and on 15.05.2016, he had sent the same to the FSL, Junga.

20. Sanjay Kumar, the then SHO appeared as PW-10 and deposed that he was present at Shongthong in connection with his official duty on 12.05.2016, when ASI Mahender Singh informed him about the murder of a person at Yuvarangi. Thereafter, he rushed to the spot of the incident and inspected the spot and prepare site plan Ext. PW-10/A. He stated that he had taken photographs and had found the dead body of the deceased to be lying outside the Dhara having injuries on the had and he had prepared inquest papers Ext. P-10/B and Ext. PW- 10/C and sent the dead body for post-mortem with docket Ext. PW-6/A to Civil Hospital, Reckong Peo. He had recorded the statement of Raj Kumar, Harish Kumar, Sukh Ram and of complainant Jang Bahadur and thereafter the appellant was arrested on the basis of the allegations and material collected at that time. He had found the appellant to have consumed alcohol. He further deposed that on 14.05.2016, while the appellant was in custody, he had given a disclosure statement Ext. PW-1/B in presence of Jang Bahadur and C. Praveen Kumar and on the basis of disclosure statement, two bowls and pair of shoes of deceased were recovered from the orchard. The disclosure statement was thumb marked by the appellant and duly signed by PW-1 Jang Bahadur. The recovered articles were identified by

PW Seema Devi who had brought some food in the red bowls which were sealed and sample seal 'V' was drawn on a separate piece of cloth Ext. CW-5/A.

21. HHC Mast Ram to whom the complainant had made telephonic call was examined as PW-11 and he stated that the complainant (PW-1) Jang Bahadur had telephonically informed him that two 'Biharis' had quarreled with each other and one was thrown from retaining wall and the person was lying unconscious. This witness had visited the police station and disclosed the incident to PW-3 Vikas Guleria, who recorded Rapat No. 35 Ext. PW-3/A.

22. Patwari, Urgian Dorje, appeared as PW12, and proved jamabandi Ext. PW-12/B and aks tatima Ext. PW-12/C, which he prepared on the application of police Ext. PW-12/A on 13.06.2016 of the spot.

23. Raj Kumar was examined as PW-13, and deposed that on 11.05.2016, he had reached and stayed with Panchu Urav near water tank Birling as he had come for the labour work. The daughter and son-in-law of the deceased had also come with him to Kinnaur. One Sandeep Kumar had also accompanied them from Jharkhand to Reckong Peo for labour work. The son-in-law and daughter of the deceased Chander Badai stayed with him. He alongwith Sandeep Kumar stayed in the quarter of Panchu Urav, who was working as contractor in this area. Panchu had

purchased two pairs of chappals in the morning at 8:00 a.m. and they went to the quarter of deceased and delivered his articles handed over to him by his wife. When they went there, the appellant and deceased were consuming liquor in the Dhara and the daughter and son-in-law of the deceased were present there in his room. They had offered two pegs to him. Both the appellant and deceased went to the room of brother-i-law of the appellant, who was residing in the khokha of Jang Bahadur. Sukh Ram, brother-in-law of the appellant was not present there. Both of them again consumed in the khokha of Sukh Ram. He alongwith Sandeep Kumar went to market and later on he came to know that Chander Badai had been murdered. On being cross- examined, he stated that they had returned to the market and only the deceased and the appellant were in the khokha of Sukh Ram, who was not present there.

24. ASI Mohinder Singh, who first visited the spot was examined as PW-13 and stated that he had visited the spot and recorded the statement of the complainant Ext. PW-1/A and sent rukka through HHC Rom Raj on which FIR Ext. PW-14/A was registered. He had taken into possession blood stained sack Ext. P-15 vide memo. Ext. PW-2/A and he had lifted the blood samples lying on the spot with the help of cotton Ext. P-17. Blood sample from door was lifted with the help of cotton Ext. P-16 and taken into possession vide memo Ext. PW-2/B. He had also taken into

possession one grinding stone (silwatta) Ext. P-18, one blood stained blanket Ext. P-19, knife Ext. P-20, sickle Ext. P-21, half filled bottle of liquor Ext. P-22 and empty bottle Ext. P-23 vide memo Ext. PW-2/C and he had obtained the signatures of witnesses Raj Kumar, Harish, Sukh Ram and C. Praveen Kumar. He had prepared sketches of grinding stone Ext. P-14/B, sickle Ext. PW-14/C and knife Ext. PW-14/D and recorded statements of witnesses. He had taken photographs Ext. PA-1 to Ext. PA-53 and CDs of photographs Ext. PA-53A and Ext. PA-54 of the spot. He had prepared specimen impressions of seal Ext. PW-14/E, Ext. PW14/E-1 to Ext. PW-14/E-3 and thereafter handed over the file to SHO. On being cross-examined, this witness stated that when he reached on the spot, appellant was sitting outside the khokha of Jang Bahadur though he has admitted that he had not lifted the finger prints of grinding stone, knife and bottles or from any articles recovered from the khokha. He admitted that there was a retaining wall near the khokha and the height of the same was about 10-15 feet. However, volunteered to state that retaining wall was 3-4 feet in height and the dead body was lying below the retaining wall and he had lifted the blood sample from the spot.

25. SI Laxam Kumar, who had written letter Ext. PW-12/A to SDM, Kalpa for obtaining the revenue papers was examined as PW-15 and again proved on record the jamabandi Ext. PW-12/B

and tatima Ext. PW-12/C from Patwari, Patwar Circle Kalpa and he had recorded statements of HC Rajiv Kumar, C. Praveen Kumar and Sher Singh, photographer and on receipt of FSL reports Ext. PX and Ext. PY, he had prepared the challan and DNA profiling report Ext. PZ was filed with the supplementary chalan. On being cross-examined, he denied the suggestion that he had recorded the statement of the witnesses at his own and not as per the deposition.

26. As observed above, there is no eye-witness in the instant case and the same is based entirely on circumstantial evidence. It is more than settled that, in case, where the evidence of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn in the first stance is 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 there should be a 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 conclusion consistent with the innocence with the accused and it must be such, as to show that within all human probability, the act must have been done by the accused.

27. Now, adverting to the facts of the case, it is duly established that the appellant was last seen in the company of

the deceased as is duly proved and established in the testimony of PW-13 Raj Kumar. That apart, it is the appellant, who is thereafter seen with the dead body shortly after the incident as is duly proved and established by the testimony of PW-1 Jang Bahadur and duly corroborated by PW-2 Raj Kumar, PW-4 Sher Singh, photographer and PW-5 C. Praveen Kumar.

28. As regards the scientific evidence, the learned counsel for the appellant, is not fully right in urging that there is no scientific evidence because in the instant case there is a DNA profiling report and as per this report, the blood obtained from the T-shirt of the appellant matched with the DNA profiling obtained from the blood of the ceased Chander Badai on FTA card and likewise the blood stains on the vest of the appellant also matched with the blood of the deceased. Not only this, the blood on the shoes of the appellant also matched with the blood of the deceased and mixed DNA profile obtained from the pant of the appellant of which one profile could be identified and this profile was consistent with the DNA profile obtained from the deceased Chander Badai on FTA card. The blood of the deceased on the clothes of the appellant leads to the hypothesis that it was the appellant who had committed the murder of the deceased.

29. Apart from above, it needs to be noticed that the appellant on 12.05.2016 was found near the dead body of the

deceased at about 2:20 p.m. Why he was there at the given time and place was within his special knowledge and the appellant having failed to explain the circumstances, which was within his special knowledge, particularly, after the prosecution has clearly established the basic facts about the deceased being lastly in the company of the appellant and the death being homicidal in nature. The want of explanation of the appellant, definitely provides a strong link in the chain of events as held by the Hon'ble Supreme court in Sabitri Samantaray vs. State of Odisha AIR 2022 SC 2591.

30. As regards the motive, it needs to be reiterated that existence of motive is only an enlightening factor in a process of presumptive reasoning depending upon circumstantial evidence. Even otherwise, it has specifically come in the statement of PW-1 Jang Bahadur that he had come to know that the appellant and the deceased were working with the contractor and the deceased used to mark presence of the labourer and on account of dispute with respect to attendance, an altercation had taken place inter se deceased and the appellant and he has not been cross-examined on this aspect of the matter.

31. Moreover, the Court cannot be oblivious to the fact that the appellant as well as the deceased were heavily drunk and motive in such circumstances cannot be said to have weakened the case of the prosecution given the fact that there is

a complete chain of circumstances, which clearly dispels all the hypothesis of the innocence of the appellant.

32. In the given facts and circumstances, we do not feel that it was absolutely necessary for the I.O to have lifted finger prints from the spot since the blood stain of the deceased was found on the clothes and shoes of the appellant, which leave no room for giving benefit of doubt to the appellant.

33. Now, adverting to the other arguments of the learned counsel for the appellant regarding the defence that the injuries might have been sustained by fall on hard surface by the deceased, we do not find anything on record which may suggest the same rather the statement of the doctor, who had examined the deceased, PW-6 Dr. Vikas Sharma, has clearly opined that the deceased had died due to ante mortem injuries, which was six in numbers and in case of fall from height on hard surface, the person would not sustain so many injuries as the deceased in the instant case.

34. What further proves the complicity of the appellant is his act in trying to remove the evidence when he first threw the dead body towards the orchard and thereafter tried to remove the blood stains from the Dhara of Sukh Ram i.e. the spot of incident.

35. In view of the aforesaid discussion and for the reasons stated here-in-above, we find no merit in the instant appeal and the same is accordingly dismissed. (Tarlok Singh Chauhan)

Judge (Satyen Vaidya) 29th December, 2023 Judge (sanjeev)