STATE OF HIMACHAL PRADESH versus RAJ KUMAR on 8 January 2018

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SUPREME COURT REPORTS

[2018] 1 S.C.R.

ASTATE OF HIMACHAL PRADESH

v.

RAJ KUMAR

(Criminal Appeal No. 31 of 2018)

BJANUARY 08, 2018

[R. BANUMATHI AND UDAY UMESH LALIT, JJ.]

Penal Code, 1860 – ss.302, 201 r/w.34 – Case based oncircumstantial evidence – Deceased was residing with PW1 (son),PW2 (daughter) and accused-respondent (brother-in-law) – On theCfateful night, PW1 heard the cries of deceased on being beaten byrespondent who then took her towards the house of another accused– Later, dead body of deceased was found hanging from a tree –Trial court convicted the respondent – Appeal by accused allowedby High Court on the ground that PW-1 had made improvements inDhis deposition and hence, was not a reliable witness – Held:Prosecution case is based on circumstantial evidence – In the presentcase, the circumstances relied upon by the prosecution are provedby cogent and reliable evidence cumulatively forming a completechain pointing out that the murder was committed by the respondentand none-else – Further, evidence of PW-1 was cogent, naturalEand consistent with the prosecution case – High Court entertainedfanciful doubts and rejected the credible evidence of PW-1 on groundof alleged improvements – Reasonings of the High Court foracquitting the respondent are unsustainable – Conviction ofrespondent by trial court is affirmed.

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Evidence Act, 1872– s.106 – Burden of proving factespecially within knowledge – Deceased was living with her 2children and accused-respondent (brother-in-law) – On the fatefulday, the respondent had beaten the deceased before taking hertowards the house of another accused – Later, dead body ofGdeceased was found hanging from a tree – Held: In view of s.106,burden was cast upon the respondent, being the inmate of the houseto give a cogent explanation as to how the deceased died – Noreasonable explanation was forthcoming from him as to why hehad neither lodged the complaint nor informed the police about themissing of deceased – Accused not throwing light on the fact whichH

was within his knowledge, his failure to offer any explanation is astrong militating circumstance against him.

Criminal law– Last seen theory – Deceased was last seenalive in the company of accused – Accused did not satisfactorilyexplain the missing of deceased – Held: This is a strong militatingcircumstance against the accused – Deceased who was residing inthe same house with the accused and was last seen alive with theaccused, it was for him to explain how the deceased died.

Allowing the appeal, the Court

HELD: 1.1 Prosecution case is based on circumstantialevidence. It is well settled that in a case based on circumstantialevidence, the circumstances from which an inference of guilt issought to be drawn must be cogently and firmly established andthat those circumstances must be conclusive in nature unerringlypointing towards the guilt of the accused. Moreover all thecircumstances taken cumulatively should form a complete chainand there should be no gap left in the chain of evidence. Furtherthe proved circumstances must be consistent only with thehypothesis of the guilt of the accused and totally inconsistentwith his innocence. [Para 9][107-D-E]

1.2 The deceased was living with her brother-in-law/accusedalong with her children. If the deceased was so missing, thenatural conduct of the accused was to inform the police and alsoPW-3 (deceased’s brother). But that was not done. In view ofSection 106 of the Evidence Act, 1872 burden is cast upon theaccused, being the inmate of the house to give a cogent explanationas to how the deceased died. The respondent-accused beinginmate of the house cannot get away by simply keeping quiet andoffering no explanation. This is a strong militating circumstanceagainst the respondent indicating that he might be responsiblefor the commission of the offence. [Para 12]108-G-H]

2. The motive attributed to the accused is that he hadfrequently quarrelled with the deceased and also assaulted her.Evidence of PW-15 as to the motive attributed to the accusedwas not properly appreciated by the High Court. [Para 13][109-A, D]

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A3. PW-1 is the son of the deceased residing with her andthe accused in the same house, and a natural witness to speakabout the occurrence. Evidence of PW-1 was cogent and naturaland is consistent with the prosecution case. The High Court wasnot right in doubting the evidence of PW-1 on the ground ofalleged improvements made and rejecting his evidence on theBpremise that there were certain improvements. [Para 15][110-D-E]

4. The deceased who was residing in the same house withthe accused and was last seen alive with the accused, it is for himto explain how the deceased died. The accused has no reasonableCexplanation as to how the body of the deceased was found hangingfrom the tree. It is for the accused to explain as to what happenedto the deceased. [Para 16][110-F]

State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 :[2006] 8 Suppl. SCR 501 – relied on.

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5. In the present case, the circumstances relied upon bythe prosecution are proved by cogent and reliable evidence. Thecircumstances cumulatively taken form a complete chain pointingout that the murder was committed by the accused and none-else. [Para 18][111-D]

ETrimukh Maroti Kirkan v. State of Maharashtra (2006)10 SCC 681: [2006] 7 Suppl. SCR 156; Ganesh Lal v.State of Rajasthan (2002) 1 SCC 731 : [2001] 4 Suppl.SCR 619;State of Maharashtra v. Suresh (2000) 1 SCC471 :[1999] 5 Suppl. SCR 215; State of Tamil Nadu v.Rajendran (1999) 8 SCC 679 : [1999] 3 Suppl. SCR 89F– relied on.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.31 of 2018.

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From the Judgment and Order dated 19.08.2014 of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal No. 559 of 2008.

D. K. Thakur, AAG, Shariq Ahmed, Varinder Kumar Sharma,Advs. for the Appellant.

Jose Abraham, Ruchir Batra, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal preferred by the State challenges the judgment ofthe High Court of Himachal Pradesh in Criminal Appeal No.559 of 2008acquitting the respondent under Section 302 IPC by setting aside hisconviction and the sentence of life imprisonment imposed upon him bythe trial court.

3. Husband of deceased Meena Devi passed away about elevenyears ago prior to the incident. Meena Devi was residing with her sonJeewan Lal (PW-1), daughter Rekha Devi (PW-2) and accused RajKumar (brother-in-law) in the joint family house. On 23.08.2007 at 08.30p.m., while Meena Devi was taking meal along with her family,respondent-accused came there in drunken condition and started abusingMeena Devi and her children PW-1 and PW-2 without any reason andthreatened to kill them. Barfi Devi-grandmother of PW-1 who waspresent in the house took Jeewan Lal (PW-1) to adjoining sleeping roomand bolted the room from outside. She asked Rekha Devi (PW-2) daughterof deceased to go to the house of her maternal uncle Anant Ram (PW-3). While being inside the room, PW-1 heard the cries of his motherMeena Devi and from the window saw the respondent-accused takingher mother towards the house of another accused Om Prakash. Afterfew hours, accused opened the door and told him that his mother hadrun away from the house and that he should tell the same to his maternaluncle Anant Ram (PW-3). Under such threat from respondent-accusedand another accused Ramesh Kumar, PW-1 told his maternal uncle (PW-3) that his mother had run away from the house. On 24.08.2007 at about02.00 a.m., Anant Ram (PW-3) came to the house of accused. Thereafter,PW-1 and PW-3 went to Dharampur Police Station and informed thepolice about missing of Meena Devi. On 25.08.2007, they again went tothe police station Dharampur and at about 11.00-11.30 a.m; at the timeAnant Ram (PW-3) received a phone call from Nek Ram informing that A

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Athe dead body of deceased Meena Devi was found hanging from a treeat Ghat Bahu forest. Thereafter, PW-1 and PW-3 along with police partywent to the spot and found that the dead body of Meena Devi washanging from the branch of a pine tree with a plastic rope, tied aroundher neck. Statement of PW-1 was recorded, based on which, case inFIR No.250 of 2007 was registered under Section 302 IPC and SectionB201 read with Section 34 IPC.

4. Initial investigation was conducted by Sub-Inspector of PoliceSat Prakash (PW-20) and further investigation was conducted byInspector of Police LR Thakur (PW-22). PW-22 prepared spot map,inquest and conducted further investigation. Dr. Vivek Banyal (PW-C24) conducted autopsy and opined that “....death was because ofhaemorrhagic shock due to rupture of spleen and anti-morteminjuries suggesting gagging. Hanging was post-mortem”. AccusedRaj Kumar was taken to custody on 25.08.2007 and he was interrogated.Confession statement of accused was recorded on 27.08.2007 whichDled to the recovery of a lady shirt from the room of the house of accusedRamesh Kumar which was under construction. Upon completion ofinvestigation, chargesheet was filed against accused Raj Kumar, RameshKumar, Om Prakash and Barfi Devi under Section 302 IPC and Section201 read with Section 34 IPC.

E5. To bring home the guilt of the accused, in the Sessions Court,prosecution has examined as many as twenty four witnesses and markednumber of exhibits and material objects. In the questioning under Section313 Cr.P.C., the accused denied all the incriminating circumstances andevidence and pleaded that he is innocent. The accused has not offeredany explanation on the death of deceased Meena Devi.F

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6. Based upon the evidence of Anant Ram (PW-3) and BhindraDevi (PW-15), the trial court held that Meena Devi suffered harassmentat the hands of her brother-in-law (respondent-accused). The trial courtheld that Jeewan Lal (PW-1) son of the deceased had spoken about theovert act of the accused in beating the deceased and that the accusedGtaking away Meena Devi from the house. The trial court held that noreasonable explanation was forth coming from the accused for the deathof the deceased Meena Devi who was living jointly with the respondent-accused. On those findings, the trial court convicted the respondent-accused under Section 302 IPC and Section 201 IPC read with SectionH34 IPC and sentenced him to undergo imprisonment for life. Other accused Ramesh Kumar and Om Prakash were acquitted. AccusedBarfi Devi remained absconding.

7. In the appeal preferred by the accused, the High Court observedthat Jeewan Lal (PW-1) son of the deceased, while deposing as witnessbefore the court in narrating the whole incident, had made improvementsand hence, PW-1 is not a reliable witness. The High Court further heldthat there were bald assertions regarding dispute, but no specific motivewas attributed to the accused for committing murder of the deceasedMeena Devi. Observing that the case of prosecution suffers from seriousinfirmities, the High Court allowed the criminal appeal filed by therespondent-accused thereby setting aside the conviction and the sentenceof life imprisonment imposed upon him. Being aggrieved, the State isbefore us.

8. We have heard the learned counsel for the parties and perusedthe impugned judgment and materials on record.

9. Prosecution case is based on circumstantial evidence. It iswell settled that in a case based on circumstantial evidence, thecircumstances from which an inference of guilt is sought to be drawnmust be cogently and firmly established and that those circumstancesmust be conclusive in nature unerringly pointing towards the guilt of theaccused. Moreover all the circumstances taken cumulatively shouldform a complete chain and there should be no gap left in the chain ofevidence. Further the proved circumstances must be consistent onlywith the hypothesis of the guilt of the accused and totally inconsistentwith his innocence.

10. In a case, based on circumstantial evidence, the inference ofguilt can be drawn only when all the incriminating facts and circumstancesare found to be incompatible with the innocence of the accused. InTrimukh Maroti Kirkan v. State of Maharashtra(2006) 10 SCC681, it was held as under:- “12. ...........The normal principle in a case based on circumstantialevidence is that the circumstances from which an inference ofguilt is sought to be drawn must be cogently and firmly established;that those circumstances should be of a definite tendencyunerringly pointing towards the guilt of the accused; that thecircumstances taken cumulatively should form a chain so completethat there is no escape from the conclusion that within all human A

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Aprobability the crime was committed by the accused and theyshould be incapable of explanation on any hypothesis other thanthat of the guilt of the accused and inconsistent with theirinnocence.”

The same principle was reiterated in State of Rajasthan v. KashiBRam(2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan(2002) 1SCC 731, State of Maharashtra v. Suresh(2000) 1 SCC 471 andState of Tamil Nadu v. Rajendran(1999) 8 SCC 679.

11. After death of her husband, Meena Devi was living with herchildren viz. Jeewan Lal (PW-1) and Rekha Devi (PW-2) along with theaccused Raj Kumar in the joint family. In their evidence, PW-1 and PW-C2 clearly stated that on 23.08.2007, respondent came in drunkard conditionand threatened to kill them. Jeewan Lal (PW-1) who is the son ofdeceased Meena Devi clearly stated that he had heard the cries of hismother and also seen accused taking his mother towards the house ofaccused Om Parkash. On 25.08.2007, body of Meena Devi was foundDhanging from a pine tree in the nearby forest. PW-24-Dr. Vivek Banyalwho conducted the autopsy has clearly said that “anti-mortem injurieswere caused due to gagging and hanging process of dead bodywas post-mortem”.

12. In his evidence, Jeewan Lal (PW-1) stated that he wasEthreatened by the accused Om Parkash to make telephonic call to hismaternal uncle Anant Ram (PW-3) that Meena Devi had run away fromthe house and under such threat Jeewan Lal (PW-1) informed AnantRam (PW-3) accordingly. After Anant Ram (PW-3) came to the villageat 02.00 a.m. on 24.08.2007, PW-1 and PW-3 went to P.P. Dharampurand informed them about missing of Meena Devi. Meena Devi wasFliving with her brother-in-law/accused along with her children. If MeenaDevi was so missing, the natural conduct of the accused was to informthe police and also Anant Ram (PW-3). But that was not done. In viewof Section 106 of the Evidence Act, burden is cast upon the accused,being the inmate of the house to give a cogent explanation as to howGMeena Devi died. No reasonable explanation is forthcoming from theaccused as to why he had neither lodged the complaint nor informed thepolice about the missing of Meena Devi. The respondent-accused beinginmate of the house cannot get away by simply keeping quiet and offeringno explanation. This is a strong militating circumstance against therespondent indicating that he might be responsible for the commission ofHthe offence.

13. The motive attributed to the accused is that he had frequentlyquarrelled with the deceased and also assaulted her. A dispute is alsosuggested pertaining to the land of one Swami who wanted to give hisproperty solely to the deceased Meena Devi which was not acceptableto the accused. Yet another motive attributed to the accused was hisgreed for the fixed deposit of Rs.1,20,000/- which had become duepayable to the deceased on 13.08.2007. PW-15 Bhindra Devi, sister-in-law of the deceased in her evidence had clearly stated that as and whenMeena Devi visited her house, Meena Devi used to tell her about thesuffering meted out to her by the accused Raj Kumar. Further, BhindraDevi (PW-15) had clearly spoken about the motive attributed to theaccused. From the evidence of PW-15, it is brought out that the accusedRaj Kumar is a chronic drunkard. On previous occasion, respondent-accused had beaten Meena Devi and he had entered into compromisewith Meena Devi by assuring her that he would not beat her in future.Evidence of PW-15 as to the motive attributed to the accused was notproperly appreciated by the High Court.

14. Jeewan Lal (PW-1) has clearly spoken as to the attack onMeena Devi by the accused on the night of 23.08.2007 and the subsequentthreat to PW-1 by the accused and one Om Prakash. The trial courtwhich had the opportunity of seeing and observing demeanour of thewitnesses held that Jeewan Lal (PW-1) is a trustworthy witness. Whileso, the High Court was not right in doubting the version of Jeewan Lal(PW-1) on the ground that PW-1 made improvements in his version. Inhis statement (Ex.P/A) dated 25.08.2007, Jeewan Lal (PW-1) did notdisclose the participation qua accused Nos. 2 and 3 namely RameshKumar and Om Parkash in the commission of the offence. Evidence ofJeewan Lal (PW-1) cannot be doubted simply because names of RameshKumar and Om Prakash were not mentioned in his statement recordedon 25.08.2007 immediately after bringing down the hanging body ofMeena Devi from the tree. The circumstances in which PW-1 wasplaced at that time, is to be kept in view. PW-1 was only aged nineteenyears. On the night of 23.08.2007, he had heard the cries of his motherat the time when she was beaten. PW-1 and PW-3 had been searchingfor Meena Devi for more than twenty four hours that is from 24.08.2007to 25.08.2007, only to find her dead. PW-1 was already threatened byaccused Om Parkash to inform Anant Ram (PW-3) that Meena Devi A

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Ahad run away. On 25.08.2007, when PW-1’s statement was recorded,he must have been in trauma and fear psychosis. In such circumstances,omission to mention the names of Om Parkash and Ramesh Kumar inhis statement (Ex.P/A) does not render PW-1’s evidence untrustworthy.Upon proper appreciation of the evidence, the trial court observed thatevidence of PW-1 inspires confidence of the court. While so, in ourBview, the High Court ought not to have doubted the version of PW-1 andhis credibility.

15. While appreciating the evidence of a witness, the approachmust be whether the evidence of the witness read as a whole appears tobe truthful in the given circumstances of the case. Once that impressionCis formed, it is necessary for the court to scrutinize the evidence moreparticularly keeping in view the drawbacks and infirmities pointed out inthe evidence and evaluate them to find out whether it is against thegeneral tenor of the prosecution case. Jeewan Lal (PW-1) is the son ofthe deceased Meena Devi residing with her and the accused in the sameDhouse, and a natural witness to speak about the occurrence. Evidenceof PW-1 is cogent and natural and is consistent with the prosecutioncase. The High Court was not right in doubting the evidence of PW-1on the ground of alleged improvements made by Jeewan Lal (PW-1)and rejecting his evidence on the premise that there were certainimprovements.E

16. As pointed out by the Sessions Judge, deceased Meena Deviwas last seen alive in the company of accused Raj Kumar and the accuseddid not satisfactorily explain the missing of deceased Meena Devi andthe same is a strong militating circumstance against the accused. MeenaDevi who was residing in the same house with the accused and was lastFseen alive with the accused, it is for him to explain how the deceaseddied. The accused has no reasonable explanation as to how the body ofMeena Devi was found hanging from the tree. As held in Kashi Ramcase, it is for the accused to explain as to what happened to the deceased.If the accused does not throw light on the fact which is within hisGknowledge, his failure to offer any explanation would be a strong militatingcircumstance against him.

17. As pointed out earlier, in his questioning under Section 313Cr.P.C., the accused simply denied the evidence of incriminatingcircumstance put to him and pleaded that he is innocent. A feeble attemptH

was made by the defence to suggest that the deceased consumed poisonand committed suicide. Viscera of deceased Meena Devi was sent toFSL Tungand. As per FSL report, no poison was detected in the visceraof the deceased. In our considered view, the trial court rightly rejectedthe plea suggested by the defence.

18. As pointed out earlier, in a catena of judgments, this Courtheld that when conviction is based on circumstantial evidence, thereshould not be any gap in the chain of circumstances; the accused isentitled to the benefit of doubt. In the present case, by cogent andconvincing evidence, prosecution has established the circumstances:- (i)Motive (evidence of PW-15); (ii) accused beating the deceased andtaking her away (Evidence of PW-1); (iii) Death of Meena Devi ishomicidal (evidence of PW-24); (iv) Conduct of accused in not reportingto the police about missing of the deceased Meena Devi; and (v) Absenceof explanation from the accused as to the death of the deceased. Thecircumstances relied upon by the prosecution are proved by cogent andreliable evidence. The circumstances cumulatively taken form a completechain pointing out that the murder was committed by the accused andnone-else.

19. In the appeal, the High Court has not properly appreciated theevidence and intrinsic worth of testimony of prosecution witnesses andthe formidable circumstances established by the prosecution against theaccused. The High Court entertained fanciful doubts and rejected thecredible evidence of Jeewan Lal (PW-1) on slender grounds. Due tomis-appreciation of evidence, the High Court set aside the convictionand caused a miscarriage of justice. Reasonings of the High Court foracquitting the accused are unsustainable and the impugned judgmentcannot be sustained.

20. In the result, the impugned judgment is set aside and the appealis allowed. The conviction of the respondent under Section 302 IPC andthe sentence of life imprisonment imposed on him by the trial court areaffirmed. The respondent shall be taken into custody to serve theremaining sentence.

Divya Pandey

Appeal allowed.

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