CRIMINAL APPEAL 289 of 2002 on 13 October 2000

1. Yashkaran alias Gaurav son of Sh.Harbhajan Singh resident of village Kuthar Beet Tehsil Haroli, District Una. resident of village Kuthar Beet Tehsil Haroli, District Una.

2. Rimpy alias Happy son of Raj Pal resident of village Kuthar Beet P.S. & Distt. Una (H.P). Kuthar Beet P.S. & Distt. Una (H.P).

3. Varinder Kumar son of Jai Karan resident of Amb, P.S.Amb, District Una. P.S.Amb, District Una.

4. Harbhajan son of Chint Ram resident of village Kuthar Beet, Sub Tehsil Haroli, Distt. Una. Beet, Sub Tehsil Haroli, Distt. Una.

5. Raghbir Singh son of Rabel Singh resident of Rampur Sahni, P.S.Nangal, Distt. Ropar (Pb.) Sahni, P.S.Nangal, Distt. Ropar (Pb.)

6. Anju Bala wife of Varinder Kumar resident of Amb, P.S. Amb, District Una (HP). Amb, District Una (HP).

7. Shakuntla Devi wife of Harbhajan Singh resident of Kuthar Beet P.S. and Distt. Una (HP.) Kuthar Beet P.S. and Distt. Una (HP.)

8. Smt.Kanta Devi wife of Jamuna Dass resident of village Kuthar Beet, P.S. and District Una, H.P. village Kuthar Beet, P.S. and District Una, H.P.

9. Seeman Rani D/o Jamuna Dass resident of Kuthar Beet, P.S. and District Una, H.P. Beet, P.S. and District Una, H.P.

….Respondents.

Coram:

Hon’ble Mr.Justice R.B.Misra, Judge.

Hon’ble Mr. Justice Dev Darshan Sud, Judge.

Whether approved for reporting1?

For the appellant: :Mr. R.K.Sharma, Sr. Addl. Advocate General with Mr.Rajinder Dogra, Addl. A.G. For Respondent: Mr.N.K.Thakur, Advocate.

Dev Darshan Sud, J(Oral)

This appeal has been preferred by the State against the judgment and sentence of the learned trial Court acquitting the respondents for offences under Sections 302, 201,212 and 120-B I.P.C.

2. The persecution case is that information was received at the police post, Haroli on 13.10.2000 that a tailor, who had a shop at Kuthar Beet, was lying dead in the fields of village Polion Beet. S.I./SH.O. PW18 Harnam Singh, Police Station, Una rushed to the spot where he found other policeman of police post Haroli already present. PW1 Ashok Kumar made a statement which was recorded under Section 154 Cr.P.C before PW 23 Baldev Ram, Incharge of Police Post, Haroli stating that on 13.10.2000 at around noon, while he was traveling on his scooter near the flour mill belonging to one Gurmail Singh, he learnt that a bicycle and some blood stained chappals were lying near a mango tree. On this, he along with Tonny, Ashwani and Avtar Singh proceeded to the spot near the mango tree and found a bicycle parked there. A cloth bag and tiffin were hanging on the handle of the bicycle. When they looked around in the adjoining fields, they found Hawai Chappals of different kinds out of which one chappal was completely stained with blood and the remaining had some blood stains on them. The ground near the chappals was also blood stained. On suspicion, they proceeded further and after walking for about 17/18 yards, they found the dead body of Nand Lal. They identified him as Nand Lal, tailor of village Polian Beet, who was working in village Kuthar Beet. They saw that the body was having signs of stab wounds on the chest. The shirt and under shirt was soaked with blood and a chhuri (knife) stained with blood was lying near the body. PW1 Ashok Kumar reported the matter to the Up-Pradhan of village Kuthar beet, who in turn informed the police at Haroli. Statement of PW1 Ashok Kumar under Section 154 Cr.P.C. was recorded and proved as Ext.PW9/A. Offence under Section 302/34 I.P.C. was registered.

3. The case then proceeds that during the investigation, which included proceedings of taking into possession the knife, chappals and cycle etc., on 15.10.2000 Smt. Babli Devi wife of deceased Nand Lal informed the Police that one Shashi Pal son of Sh. Avtar Singh land lord of the shop in which the deceased was carrying on his business would be the right person to unravel the mystery as Shashi Pal was a very good friend of the deceased. She went to the extent of saying that this Shashi Pal might even be the killer. He was arrested on suspicion on 21.10.2000. It is during his interrogation that the police learnt that Nand Lal deceased was a philanderer who developed sexual relations with a number of girls of village Kuthar beet. He went to the extent of saying that when any girl got pregnant, he would get the fetous aborted. Shashi Pall was a very close friend of the deceased and he acted as a middle man for procuring these girls. The case then proceeds that the deceased used to keep an evil eye of developing physical intimacy with the sisters of accused Gaurav alias Yashkaran and Rimpy alias Happy (respondents No.1 and 2). Both were related to each other and were very good friends. They as also their family were aware about the nefarious activities of the deceased.

4. On 12.10.2000 Gaurav’s father Harbhajan Singh, Happy’s sister Seema, Anju and Jija Varinder, Gaurav’s mother Shakuntla, Seema’s mother Kanta Devi, Yashkaran alias Gaurav, Rimpy alias Happy met at the house of Kanta Devi. They discussed the conduct of deceased Nand Lal and in the circumstances they decided to kill him. Pursuant to this conspiracy which was hatched, they went to the mango tree near the fields of Tilak Raj and lay in wait for Nand Lal who used to pass from there. They were aware about his usual travelling habits/route. When the deceased approached the spot, he was ambushed by Rimpy alias Happy, who caught hold of him and pinned his arms and Yashkaran alias Gaurav inflicted fourteen knife blows on his chest and back killing him on the spot. During this scuffle, one blow hit the right wrist of Rimpy alias Happy. Thereafter, they threw his body behind the bushes in the fields. In this process, chappals of both the accused and those of Nand Lal deceased were left behind in the fields in a hurry as the accused wanted to escape from the scene of occurrence. Rimpy suffered loss of blood because of the injuries sustained by him and it became difficult for him to walk. At 8 P.M. in the evening Yashkaran alias Gaurav went to the house of Kanta Devi accused and informed the entire party of the conspirators, who had assembled there in the morning and informed them that the job had been completed. After this, Virender Kumar and Yashkaran brought Rimpy home on a scooter. The clothes of both the accused were soaked in blood. They changed their clothes in the house of Kanta Devi. These along with a blood stained ‘Chhadar’ (sheet) was stuffed into a carry bag. Large pool of blood in the room was washed away by the conspirators who were present there. Rimpy was then taken to the house of Raghubir Singh (Yashkaran’s maternal uncle) at Nangal Rampur Sahni.

5. The prosecution then proceeds that Yashkaran alias Gaurav went to the house of Onkar Singh (PW6) at around 9.30 p.m. asking him to transport one boy from Kuthar beet to Nangal telling him that the boy had suffered a severe attack of epilepsy. The boy who was covered with the ‘Chadar’, was transported by Yashkaran and others in the Van. On the way, this witness noticed a bandage soaked with blood tied on the arm of the boy. He was transported to the house of Raghubir Singh. A sum of Rs.350/- was paid as transportation charges and the van sent back. On 13.10.2000 at around 10.30 a.m. when Onkar Singh (PW6) was standing near Bhatoli College, he saw Yashkaran and told him that the person who was dropped at village Nangal Rampur Sahni was not a patient of epilepsy as he had some injuries on his person. Yashkaran is supposed to have told this witness that Nand Lal tailor used to have an evil eye on his sister which was the cause for killing him. 6. The prosecution in this case has examined twenty five witnesses. The learned trial court notices eight circumstances on the basis of which conviction is sought of all the accused. 7. Admittedly, the present case is based on circumstantial evidence. The principles of law in such circumstances have been enunciated by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 S.C. 1622, the Court holds:

“150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091: (AIR 1952 S.C. 343) This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra) :

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 S.C.2622 ) where the following observations were made :

"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus :

"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."

155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain” (PP 1655 & 1656)

8. The first circumstance urged is the motive to kill Nand Lal. According to the prosecution, the deceased was a habitual philanderer who was enticing away village girls for his personal pleasure and gratification. He used to get them aborted if it was required. This according to the prosecution was disclosed to the police by Shashi Pal who had been arrested on suspicion. It is also pleaded that this person was a go between the girls and the deceased and the person from whom the medicine etc. were procured. The learned trial Court notices that Shahi Pal has not been produced as a witness. He was the primary link in the evidence of the entire case. So much so, he was not even named in the list of witness. PW3 Smt. Babli wife of the deceased was produced in evidence admits in her cross-examination that she does not know if anybody had enmity with her husband or obviously extra marital relationship or the fact that he was killed by Shashi Pal. This is the entirety of the evidence so far as the motive is concerned.

9. Adverting to the evidence of PW25 Ranjit Singh, we find that the evidence on this aspect is hearsay evidence, there is nothing on the record to show that the deceased, in fact, was a philandererhabituated to sex with a number of girls which ultimately resulted in his killing. In these circumstances, we cannot find anything wrong with the assessment of the learned trial Court as the motive has not been proved. In fact, what we find is that it is the wayward habits of the deceased which was the cause for instigating the accused to finish him as urged. We accept the submission made by the State that motive is not required to establish the crime but in the circumstances and the nature of the evidence which we have

considered, we find that this would have been a very important link which has not been established/proved.

10. The second circumstance alleged is that of the injury on the right wrist of Rimpy alias Happy which he is supposed to have sustained while stabbing the deceased. He had been taken for treatment by Yashkaran to the house of his maternal uncle Raghubir Singh at village Rampur Sahani in Maruti Van No PB.08-B-7297 owned by Dawarka Dass (PW7) and driven by Onkar Singh (PW6). PW7 Dawarka Dass states that on 12.10.2000 at around 9 p.m. in the evening PW6 Onkar Singh asked for his permission to take a patient of epilepsy from Kuthar beet to Nangal in his Van and at that time Onkar Singh was accompanied by an unknown person. Next morning, PW7 Dawarka Dass was informed by the driver that he left the patient at Nangal and had been paid Rs.350/- as fare. He says that PW 6 Onkar Singh used to maintain a log book (Ext.PW4/A) noting down the journey undertaken. PW6 Onkar Singh stated that on 12.10.2000 at around 9.30 p.m. while he was sleeping accused Gaurav alias Yashkaran came to him with the request that his relative has suffered an acute attack of epilepsy and he was required to be taken to Nangal for immediate medical treatment. He asked PW7 Dawarka Dass for permission and thereafter transported the injured to Nangal. PW6 Onkar Singh was declared hostile when he stated that entry Ext.PW6/A was made by him showing the journey between Lalluwal to Tahliwal and back to Lalluwal, Lalluwal to Gondpur and Gondpur to Kuthar beet and Kuthar beet to Nangal. He completely disowned the fact that the person transported by him was Happy. He denied going to Nangal; he did not see if the sick person was bandaged. In cross examination by the public prosecutor he admitted that the accused was transported by him. In cross-examination by the defence, he says that on the fateful day this entry was made by him at the instance of the police. On being questioned by the Court “as to why he had gone to Nangal and made this entry with respect to Nangal”, his answer was that he had been beaten up severely by the police and he had made the statement out of fear of the police.

11. PW4 Urmila Atwal, Ex-Pradhan of the Gram Panchayat, Polian in her evidence she does not support the case of the prosecution at all. PW14 Purshotam Dass, who is the owner of the medical store at Nangal running under the name and style of M/s P.D.Medicos, denied that he ever gave any medical aid to anybody between the intervening nights of 12[th] /13[th] October, 2000. He was declared hostile. In cross-examination, he again stated that he had given in writing to the police Ext.PW14/B whatever they wanted him to do because he was threatened by them that he would be dealt with appropriately in case he did not write what they asked him to do. That exhibit relates to the fact that he had given some kind of medical treatment to the accused.

12. PW24 Dr.J.P.S.Sangha was examined to prove the treatment received by the accused at Civil Hospital, Ropar. He proved on record Ext.PW24/A where according to him the patient Happy had come on 28.10.2000 with a wound on his arm which was only 1/2 days old. We note at this stage that the incident is supposed to be that of 13.10.2000 and if this wound is taken as one connecting the

accused with the crime, it could not be 1/2 days old as opined by the doctor whose testimony has remained unchallenged.

13. The other testimony is that of PW12 Dr. Vipan Chander Sharma, who examined Rimpy on 3.11.2000. He found an old infected stiched wound on the right forearm, old healed wound on right forearm, old infected wound on left foot and scalds on left foot involving all the toes with blister formation. According to him the injuries were simple and could not opine that the injuries were caused with a blunt weapon.

14. When we consider this evidence in its entirety, we find that nothing has been established on the record of the case that Rimpy, in fact, received medical treatment immediately after the incident. PW12 Dr.Vipen Chander Sharma also could not opine about the nature of the weapon which caused the wound. In this situation, these circumstances either in conjunction with the others or independently leads no where and we hold so.

15. The third circumstance urged against the accused was the extra judicial confession having been made by Yashkaran accused before PW6 Onkar Singh. However PW6 Onkar Singh has denied that any such confession was made before him. The other circumstance urged is the confessional statement made by Kanta Devi and Sooma Devi on 1.11.2000 before PW9 Harmesh Thakur, Ex-Pradhan of Gram Panchayat, Kuthar beet. This fact need not detain us as we note that PW9 Harmesh Thakur has not corroborated this fact at all. He was declared hostile but in cross-examination he does not in any manner destroy the veracity of his evidence in its entirety.

16. We advert to the other circumstance urged which is that on disclosure statement made before PW25 S.I.Ranjit Singh by Rimpy that he could lead to the police to recover two blood stained chappals which were thrown by him in the bushes. This statement is supposed to have witnessed by Parkash Chand and PW13 Bulanda Ram. The chappals were taken into possession vide Ext.PW13/B. Out of the two witnesses, PW 13 Bulanda Ram has been examined but Parkash Chand has not been examined. Learned trial Court holds that even if the statement is accepted, this would be a very weak circumstance for the reason that this recovery was made from an open place on 5.11.2000 whereas the incident is supposed to have taken place on 13.10.2000. We also note from the statement of PW1 Ashok Kumar, PW2 Malkiat Singh and PW18 Harnam Singh that they reached the spot on 13.10.2000 and at that time the statement (Ext.PA) of PW1 Ashok Kumar under Section 154 Cr.P.C. was recorded and took into possession chappals Ext.P1 to Ext.P4 and blood stained soil etc. The evidence of this witness also shows that on 13.10.2000 itself the entire area was thoroughly checked and nothing except the articles as noticed were recovered from the spot. The recovery of the blood stained chappals Ext.P1 to Ext.P4 from the bushes after a period of twenty three days could not be taken as a circumstance to implicate the accused. The evidence was considered as extremely weak and, therefore, it could not be used against the accused. We hold accordingly.

17. We now advert to the last circumstance which is the recovery of the blood stained pant containing blood stained handkerchief at the instance of Yashkaran alias Gaurav and the

identification of the site of the occurrence. Here again, what the learned Court find is that the statement Ext.PW3/A was recorded on 5.11.2000 and that pant Ext.P16 and Handkerchief Ext.P17 were recovered after a long period of time. PW13 Bulandha Ram admits that the pant was visible to all persons who were standing on the spot and in this eventuality, the lapse of time itself was a factor going against the recovery. This is entirety of the evidence on record.

18. We find from the circumstances as enumerated by the learned trial Court that either individually or in conjunction, none of the fact implicates the accused. Starting with the motive down to the recovery of the articles, there is no circumstance individually or in conjunction with others strong enough to point an erring finger of guilt at the accused. We also note that the part regarding the hatching of criminal conspiracy has remained unproved on the record. We, therefore, find no merit in this appeal which is dismissed. Bail bonds furnished by the respondents are discharged.

(R.B.Misra), Judge.

(Dev Darshan Sud), Judge.

September 22,2011.(R)