IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 4235 of 2013
Reserved on: 16.11.2017
Decided on: 22.12.2017
.
_
Karan Thakur …..Appellant.
Versus
State of Himachal Pradesh ……Respondent.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.
_
For the appellant: Mr. Satyen Vaidya, Senior Advocate,
with Mr. Vivek Sharma, Advocate.
For the respondent: Mr. V.S. Chauhan, Addl. AG, with
Mr. J.S. Guleria, Asstt. AG.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the
appellant/accused/convict (hereinafter referred to as “the accused”)
laying challenge to judgment dated 26.10.2013, passed by learned
Additional Sessions Judge, Hamirpur, H.P., in Sessions Trial No. 1 of
2013, whereby the accused was convicted for the commission of
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2
offence punishable under Section 302 of Indian Penal Code, 1860
(hereinafter referred to as “IPC”).
2. The background facts, as projected by the prosecution,
.
can tersely be summarized as under:
The accused, when in the year 2011, posted as Sepoy
Gunner No. 14939093H, Mech. Infantry (7 Grenadier), at Babina
Cantt., District Jhansi (U.P.), was in relationship with the deceased,
daughter of Shri Yashwant Singh. As per the prosecution case, the
accused was in regular touch with the deceased and he was using
cell No. 073094-00919. The accused used to make calls to the
deceased on her cell No. 98168-46315. On 04.03.2011, when the
deceased accompanied the accused to his place of posting, where she
stayed for some days, both of them had sexual relation. The father
of the deceased, Shri Rakesh Thakur, brought her back and the
matter was amicably settled to save the dignity and honour of the
deceased. The matter was not reported to the police and it was
agreed that the deceased and the accused will neither meet nor have
any future contact or relation with each other. In lieu of
compromise, the mother of the deceased, Smt. Meera Devi, was paid
`25,000/- (rupees twenty five thousand). However, the accused did
not desist from calling the deceased. As per the prosecution, on and
w.e.f. 23.06.2011 the accused came on leave and on 19.07.2011 he
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3
met with the deceased at Awah Devi temple, thereafter the deceased
went missing. When the deceased did not return home, her mother
tried to contract her on cell phone and she came to know that she
.
went with the accused. Thereafter, cell phone of the deceased was
switched off and the family members started searching her, but in
vain. The mother and brother of the deceased repeatedly made
phone calls on cellphone of the accused and ultimately on
22.07.2011 he picked up the call, but could not tell about the
deceased. Subsequently, the accused told the brother of the
ृ ) का जो करना था कर दया है ! आपने जो करना है कर
accused “मने ….. (मतक
लो!”. Despite strenuous efforts of the family members of the
deceased, the deceased could not be traced and on 07.09.2011 the
mother of the deceased filed a complaint before Superintendent of
Police, Mandi, H.P., whereupon FIR No. 207 of 2011, dated
09.09.2011 was registered against the accused under Sections 363,
366, IPC, at Police Station, Sarkaghat, Mandi, H.P. and the
investigation ensued. On 10.09.2011, when the police visited house
of the complainant, a hand written note of the deceased was given to
the police by the complainant, wherein it was written “मने अपना जीवन
साथी ढू ढ लया है , इधर उधर फ़ोन मत करना, म फ़ोन कर दं ग
ू ी, मेर चंता मत
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4
करना, म करण के साथ जा रह हू ँ! During the course of investigation,
record qua date of birth of the deceased, i.e., copy of pariwar register
was procured and on 18.09.2011 police went to Babina Cantt,
.
Jhansi, U.P.. It was unearthed that during the period from
23.06.2011 to 22.07.2011 the accused was on leave. The accused
was using cell No. 073094-00919 at Babina Cantt, District Jhansi,
U.P. The accused was arrested and later on released on bail due to
insufficient evidence. On 28.07.2012, a Special Investigation Team
(SIT) headed by PSI Sanjeev Kumar was constituted. After careful
analysis of the call records, it was unearthed that on 21.07.2011 cell
No. 073094-00919, i.e., of the accused, was operating through hand-
set having IMEI No. 910517500060140 and this IMEI number was of
hand-set of the deceased, on which she was using cell No. 98168-
46315. On 07.08.2012, the accused, yielded to the intense
interrogation of the SIT and confessed that he committed murder of
the deceased on 19.07.2011 and disposed her body in a nalla near
Hanuman Mandir, at Bassi Bhoranj, District Hamirpur, H.P.
Consequently, upon the disclosure statement, so made by the
accused, the police obtained permission of Naib-Tehsildar, Bhoraj,
District Hamirpur, H.P., for accompanying them and exhuming the
dead body of the deceased. The accused led the police team to
Village Takota Brahmana, near Hanuman Mandir, where he got
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5
them identified a cave, near a nallah. At the instance of the accused,
digging was done and some bones of human skeleton were exhumed.
As the digging work was being done during night, the same was
.
stopped and decided to be resumed on the subsequent morning in
presence of witnesses. The recovered bones were collected and put
in box and the spot was preserved and guarded. On 08.08.2012,
police called the complainant on the spot and exhuming operation
was resumed around 09:30 a.m. in presence of the complainant
(mother of the deceased), Jagar Nath (relative of the deceased),
Rattan Lal, Naib-Tehsildar, Bhoranj and the police personnel.
During the digging skeleton remains of human body alongwith
female clothes and ornaments on the body were recovered. The
complainant identified the clothes and other remains, viz., silver
ring, two black sacred threads tied on the ankles of the skeleton as
that of her daughter (deceased). The exhuming operation was
videographed and photographs of the skeleton remains and bones
were also taken. Femur bone was separated for conducting DNA
profiling and rest of the articles were packed in separate cloth
parcels, which were stitched and sealed and were taken into
possession vide recovery memo. The police prepared the spot map of
the place of exhumation and the skeleton remains were sent for
postmortem examination to Department of Forensic Medicine, IGMC,
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6
Shimla. As per the postmortem examination report, the skeletal
remains were of a female, aged around 20-22 years, having living
height of around 160.89 +/- 5 cms, consistent with Indian race with
.
no other identification features other than the belongings and no
injuries were present on the skeletal remains. The cause of death
could not be opined and the deceased might have died at least more
than six months before the examination. On 13.08.2012, blood
sample of the Meera Devi (complainant and mother of the deceased)
was taken at Civil Hospital Sarkaghat and the same was sent for
DNA profiling to State F.S.L., Junga. Pursuant to order of District
Magistrate, Hamirpur, dated 26.09.2012, FIR No. 207/11, dated
09.09.2011, registered under Section 302 IPC at Police Station,
Sarkaghat, was transferred to Police Station Bhoranj, District
Hamirpur, H.P., and FIR No. 194/12, dated 27.09.2012, was
registered at Police Station Bhoranj, District Hamirpur, H.P., under
Section 302 IPC. The police of Police Station, Bhoranj, procured
billing addresses and CDRs of mobile SIM No. 88946-77707, 98168-
46315 and 073094-00919. After investigation, it was found that the
accused had committed the murder of the deceased on 19.07.2011
and buried her body at Village Takota Brahmana, near Hanuman
Mandir in a nallah at Bassi Bhoranj, Hamirpur. After conclusion of
investigation, challan was presented in the Court.
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7
3. The prosecution, in order to prove its case, examined as
many as twenty five witnesses. Statement of the accused was
recorded under Section 313 Cr.P.C., wherein he pleaded not guilty.
.
The accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated
26.10.2013, convicted the accused for the offence punishable under
Section 302 IPC and sentenced him to undergo imprisonment for life
and to pay fine of `50,000/- (rupees fifty thousand). The fine
amount, if realized, was ordered to be paid as compensation to the
complainant, hence the present appeal maintained by the accused
(convict).
5. The learned Senior Advocate for the appellant has argued
that there is no evidence against the appellant, as the
circumstances, which emerge in no way connect the accused with
the guilt. He has further argued that DNA profile of the deceased did
not match with the DNA profile of her mother. The disclosure
statement allegedly made by the accused is also full of discrepancies
and even the recovery of the skeleton of the deceased has not been
proved, as the Naib-Tehsildar, in whose presence the recovery is
stated to have been effected, has specifically stated that on the next
morning by the time he reached the spot, the skeleton was already
exhumed. The learned Senior Counsel has argued that in these
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8
circumstances, the only conclusion is that the prosecution has failed
to prove the guilt of the accused beyond the shadow of reasonable
doubt. Thus, the accused be acquitted after setting-aside the
.
judgment of conviction, so passed by the learned Trial Court.
Conversely, the learned Assistant Advocate General has argued that
the chain of circusmtances is complete and no link is missing. He
has further argued that the circumstantial evidence, which has come
on record, not only connects the accused with the commission of
crime, but it also proves that the accused has committed the murder
of the deceased. The deceased was in love relation with the accused
and as the accused wanted to get rid of the deceased, he killed her.
He has further argued that if the prosecution has failed to prove the
motive of the accused in killing the deceased, even then other
circumstantial evidence, including the disclosure statement made by
the accused, when he was in custody, leads to only conclusion that
the accused has killed the deceased. In rebuttal, the learned Senior
Advocate has argued that there is no evidence to come to the
conclusion that the skeleton exhumed was of Shashi Devi (deceased).
He has further argued that there is no evidence on record to connect
the accused with the alleged commission of the offence, as alleged.
6. In order to appreciate the rival contentions of the parties
we have gone through the record carefully.
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9
7. After going through the record, it is clear that the case of
the prosecution rests upon the circumstantial evidence and as far as
the law qua circumstantial evidence is concerned, the same in nitty-
.
gritty is that each and every circumstance is required to be proved
by the prosecution and the circumstances, as a whole, have to make
out a chain in a manner that the only conclusion is that the accused
has committed the crime. The law on the point of circumstantial
evidence is considered and settled by the Hon’ble Courts in the
following judgments:
1. State of H.P. vs. Sunil Kumar,
r Criminal Appeal No. 326 of 2011,
decided on 15.06.2017;
2. Sharad Birdhichand Sarda vs.
State of Maharashtra, AIR 1984
Supreme Court 1622;
3. Padala Veera Reddy vs. State of
Andhra Pradesh and others, AIR
1990 Supreme Court 79;
4. State of Uttar Pradesh vs. Ram
Balak another, (2008) 15Supreme Court Cases 551,
5. Rajdev aliasRaju another vs.
Stae of H.P., Criminal Appeal No.
288 of 2015.
8. In State of H.P. vs. Sunil Kumar, Criminal Appeal No.
326 of 2011, decided on 15.06.2017, this Court has held as under:
“13. It is more than settled that in
case of circumstantial evidence, the
circumstances from which
interference as to the guilt of the
accused is drawn, have to be proved
beyond reasonable doubt and there
be a complete chain of evidence22/12/2017 23:06:53 :::HCHP
10consistent only that the hypothesis
of guilt of the accused and totally
inconsistent with his innocence and
in such a case if the evidence relied
upon is capable of two inferences
then one which is in favour of the.
accused must be accepted. It is
clearly settled that when a caserests on circumstantial evidence
such evidence must satisfy three
tests:
i) The circumstance from which an
inference of guilt is sought to be
drawn must cogently and firmly
established.
ii) Those circumstances should be of a
definite tendency un-erringly
pointing out towards the guilt of the
r accused.
iii) The circumstances taken
cumulatively, should form a
complete chain so that to come to
the conclusion that the crime was
committed by the accused.
14. Equally well settled is the
proposition that where the entire
prosecution case hinges on
circumstantial evidence the Court
should adopt cautious approach forbasing the conviction on
circumstantial evidence and unlessthe prosecution evidence point
irresistible to the guilt of the
accused, it would not be sound and
safe to base the conviction ofaccused person.
15. In case of circumstantial
evidence, each circumstances must
be proved beyond reasonable doubt
by independent evidence and the
circumstances so proved, must form
a complete chain without giving
room to any other hypothesis and
should be consistent that only the
guilt of the accused (See: Lakhbir22/12/2017 23:06:53 :::HCHP
11Singh vs. State of Punjab, 1994
Suppl. (1) SCC 173).”
9. The Hon’ble Supreme Court in Sharad Birdhichand
.
Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622,
has held as under:
“48. Before discussing the evidence
of the witnesses we might mention a
few preliminary remarks against
the background of which the oral
statements are to be considered. All
persons to whom the oralstatements are said to have been
made by Manju when she visited
Beed for the last time, are close
relatives and friends of the
deceased. In view of the close
r relationship and affection any
person in the position of the witnesswould naturally have a tendency to
exaggerate or add facts which may
not have been stated to them at all.
Not that is done consciously but
even unconsciously the love andaffection for the deceased would
create a psychological hatred
against the supposed murderer and,
therefore, the court has to examinesuch evidence with very great care
and caution. Even if the witnesseswere speaking a part of the truth or
perhaps the whole of it, they would
be guided by a spirit of revenge or
nemesis against the accused personand in this process certain facts
which may not or could not have
been stated may be imagined to
have been stated unconsciously by
the witnesses in order to see that
the offender is punished. This is
human psychology and no one can
help it.
… … … … … …
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12
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 chainare in themselves complete than a
false plea or a false defence may be
called into aid only to lendassurance 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 is anyinfirmity 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.
… … … … … …
158. It will be seen that this Court
while taking into account theabsence of explanation or a false
explanation did hold that it will
amount to be an additional link to
complete the chain but these
observations must be read in thelight of what this Court said earlier,
viz., before a false explanation canbe used as additional link, the
following essential conditions must
be satisfied:
(1) various links in the chain of
evidence led by the
prosecution have been
satisfactorily proved.
(2) the said circumstance point to
the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in
proximity to the time and
situation.
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13
159. If these conditions are
fulfilled only then a Court can use a
false explanation or a false defence
as an additional link to lend an
assurance to the Court and not
otherwise. On the facts and.
circumstances of the present case,
this does not appear to be such acase. This aspect of the matter was
examined in Shankarlal’s case (AIR
1981 SC 765) (supra) where thisCourt observed thus:
“Besides, falsity of defence cannot
take the place of proof of facts
which the prosecution has to
establish in order to succeed. A falseplea can at best be considered as an
additional circumstance, if other
circumstances point unfailingly to
r the guilt of the accused.”
160. This Court, therefore, has in
no way departed from the five
conditions laid down in Hanumant’s
case (supra). Unfortunately,
however, the High Court also seems
to have misconstrued this decisionand used the so-called false defence
put up by the appellant as one of
the additional circumstances
connected with the chain. There is a
vital difference between anincomplete chain of circumstances
and a circumstance which, after thechain is complete, is added to it
merely to reinforce the conclusion of
the court. Where the prosecution is
unable to prove any of the essentialprinciples laid down in Hanumant’s
case, the High Court cannot supply
the weakness or the lacuna by
taking aid of or recourse to a false
defence or a false plea. We are,
therefore, unable to accept the
argument of the Additional
Solicitor-General.”
10. The Hon’ble Supreme Court in Padala Veera Reddy vs.
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14
State of Andhra Pradesh and others, AIR 1990 Supreme Court 79,
has held as under:
.
“12. There are certain salient and
material features in the present
case which are not controverted;
they being that A-1 to A-3 and the
deceased lived under a commonroof, that the deceased had
instituted a civil suit against her
father, PW-8 and brother PW-9
claiming exclusive possession of the
disputed land, that the deceasedwas found dead on the morning of
7.9.85 and that there were certain
visible injuries such as abrasions,
nail marks and contusions on the
part of the nose, upper lip, chin and
r neck etc. as noted by the Medical
Officers (PWs 5 and 6) in the post-
mortem report Ex. P. 9. The
appellate Court on the strength of
the opinion given by the Medical
Officers (PWs 5 and 6) has agreed
with the view of the Trial Court thatthe death of the deceased was of
homicidal one and not suicidal and
held “therefore suicidal is ruled
out.” We also very carefully wentthrough the evidence of the Medical
Officers and found that the
prosecution has convincinglyestablished that the death of the
deceased was due to forcible
administration of poison andsmothering. Hence we are in full
agreement with the concurrent
findings of the Courts below that it
is a clear case of murder.
… … … … … …
15. While considering the above
circumstances, the appellate Court
has expressed its view that the
explanation given by the accused
that they were at the marriage22/12/2017 23:06:53 :::HCHP
15house of PW-1 throughout the night
is nothing but a false explanation
and that the culprits who ever they
might have been should have
administered the poison to the
victim and thereby caused her death.
and that there is very strong
suspicion against the accusedpersons but the prosecution cannot
be said to have established the guilt
of the accused decisively since thesuspicion cannot take the place of
legal proof. The relevant portion of
the final conclusion of the appellate
Court reads thus:
“There is no evidence
whatsoever either from the
neighbours or from others to
show that the accused at any
time ill-treated the deceased
or treated her cruelly. In these
r circumstances, it is notpossible to hold that the
prosecution has established
the guilt on the part of A. 1 to
A. 3. Thus, there is no
conclusive evidence that theaccused committed the offence
of murder. It is an
unfortunate case where cold-
blooded murder has been
committed and it is difficultto believe that no inmate of
the house had any hand in theoffence of murder. But that
will be only a suspicion which
cannot take the place of
proof.”
16. We, in evaluating the
circumstantial evidence available on
record on different aspects of the
case, shall at the foremost
watchfully examine whether the
accused 1 to 3 had developed bad-
blood against the deceased to the
extent of silencing her for ever, that
too in a very inhuman and
horrendous manner. The appellant22/12/2017 23:06:53 :::HCHP
16wants us to infer that the deceased
should have been subjected to all
kinds of pressures and harassments
and compelled to institute the suit
against her father and brother
claiming exclusive right over the.
landed property in order to grab the
said property, that this conduct ofthe accused should have been
resented by the deceased and that
on that score the accused shouldhave decided to put an end to her
life. In our view, this submission has
no merit because there is no
acceptable evidence showing that
there was any quarrel in the family
and that the deceased was ill-
treated either by her husband or in-
laws. The appellate Court while
dealing with this aspect of the case
has observed that there is no
evidence that the accused ill-treatedthe deceased, which observation we
have extracted above. Hence, wehold that there is no sufficient
material to warrant a conclusion
that the accused had any motive to
snatch away the life threat of the
deceased. There is no denying thefact that the deceased did not
accompany her husband and in-laws
to attend the marriage celebrated in
the house of PW-1 and remained inthe scene house and that she has
been done away with on theintervening night of 6th/7th
September, 1985. From this
circumstance, the Court will not be
justified in drawing any conclusionthat the deceased was not leading a
happy marital life. As observed by
the appellate Court, the explanation
offered by accused 1 to 3 that they
remained in the house of PW 1
throughout the night is too big a pill
to be swallowed. But at the same
time, in our view, this unacceptable
explanation would not lead to any
irrestible inference that the accused
alone should have committed this22/12/2017 23:06:53 :::HCHP
17murder and have come forward with
this false explanation. We have no
hesitation in coming to the
conclusion that it is a case of
murder but not a suicide as we have
pointed out supra. The placing of.
the tin container with the
inscription ‘Democran, by the side ofthe dead body is nothing but a
planted one so as to give a
misleading impression that thedeceased had consumed poison and
committed suicide. But there is no
evidence as to who had placed the
tin container by the side of the dead
body. Even if we hold that the
perpetrators of the crime whoevermight have been had placed the tin,
that in the absence of any
satisfactory evidence against the
accused would not lead to any
inference that these accused or anyof them should have done it. It is the
admitted case that the first accusedhanded over three letters Ex. P. 6 to
P. 8 alleged to have been written by
the deceased to the Investigating
Officer. The sum and substance of
these letters are to the effect thatthe deceased had some grouse
against her parents and that the
accused were not responsible for her
death. The explanation given byaccused No. 1 in this written
statement is that by about the timeof the arrival of the police, one
Sathi Prasad Reddy handed over
these letters to him saying that he
(Reddy) found them near the placewhere the dead body was laid and
that he (A-1) in turn handed over
them to the police. PWs 8 and 9
have deposed that these letters are
not under the hand writing of the
deceased. But the prosecution has
not taken any effort to send the
letters to any hand-writing export
for comparison with the admitted
writings of the deceased with the
writings found in Ex. P. 6 to P. 8.
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18
Under these circumstances, no
adverse inference can be drawn
against accused No. 1 on his
conduct in handing over these
letters.
.
17. No doubt, this murder is
diabolical in conception and cruel in
execution but the real and pivotal
issue is whether the totality of the
circumstances unerringly establishthat all the accused or any of them
are the real culprits. The
circumstances indicated by the
learned Counsel undoubtedly create
a suspicion against the accused. But
would these circumstances besufficient to hold that the
respondents 2 to 4 (accused 1 to 3)
had committed this heinous crime.
r In our view, they are not.
… … … … … …
22. We are of the firm view that
the circumstances appearing in this
case when examined in the light of
the above principle enunciated bythis Court do not lead to any
decisive conclusion that either all
these accused or any of them
committed the murder of thedeceased, Vijaya punishable
under Section 302 read with Section
34 of I.P.C. or the offence of crueltywithin the mischief of Section 498-
A I.P.C. Hence, viewed from any
angle, the judgment of the appellate
Court does not call for interference.”
11. The Hon’ble Supreme Court in State of Uttar Pradesh
vs. Ram Balak another, (2008) 15 Supreme Court Cases 551,
has held as under:
“12. So far as the last seen aspect
is concerned it is necessary to take22/12/2017 23:06:53 :::HCHP
19note of two decisions of this Court.
In State of U.P. v. Satish, it was
noted as follows:
“22. The last seen theory comes
into play where the time-gap.
between the point of time
when the accused and thedeceased were seen last alive
and when the deceased is
found dead is so small thatpossibility of any person other
than the accused being the
author of the crime becomes
impossible. It would be
difficult in some cases to
positively establish that thedeceased was last seen with
the accused when there is a
long gap and possibility of
other persons coming in
between exists. In the absence
r of any other positive evidence
to conclude that the accusedand the deceased were last
seen together, it would be
hazardous to come to a
conclusion of guilt in those
cases. In this case there ispositive evidence that the
deceased and the accused
were seen together by
witnesses PWs. 3 and 5, inaddition to the evidence of
PW-2.”
13. In Ramreddy Rajesh Khanna
Reddy v. State of A.P., it was noted
as follows:
“27. The last-seen theory,
furthermore, comes into play
where the time gap between
the point of time when the
accused and the deceased
were last seen alive and the
deceased is found dead is so
small that possibility of any
person other than the accused
being the author of the crime
becomes impossible. Even in22/12/2017 23:06:53 :::HCHP
20such a case the courts should
look for some corroboration.”
(See also Bodhraj v. State of
JK, (2002) 8 SCC 45).
14. A similar view was also taken
in Jaswant Gir v. State of Punjab,2005 12 SCC 438. Factual position
in the present case is almost
similar, so far as time gap isconcerned.
15. Out of the circumstances
highlighted above really none is of
any significance. Learned Counsel
for the appellant-State highlightedthat the extra judicial confession
itself was sufficient to record the
conviction. On a reading of the
evidence of CW-1 it is noticed that
accused Ram Balak did not a say a
r word about his own involvement. On
the contrary he said that he did notdo anything and made some
statements about the alleged act of
co-accused. Additionally, in his
examination under Section 313 of
Code, no question was put to himregarding his so called extra
judicial confession. To add to the
vulnerability, his statement is to the
effect that after about 11 days ofthe incidence the extra judicial
confession was made. Strangely hestated that he told the police after
three days of the incidence about
the extra judicial confession. It is
inconceivable that a person wouldtell the police after three days of the
incidence about the purported extra
judicial confession which according
to the witness himself was made
after eleven days. Learned Counsel
for the State submitted that there
may be some confusion. But it is
seen that not at one place, but at
different places this has been
repeated by the witness.
22/12/2017 23:06:53 :::HCHP
21
16. Learned Counsel for the
appellant also refers to a judgment
of this Court in Abdul Razak
Murtaza Dafadar v. State of
Maharashtra, more particularly
para 11 that the Dog Squad had.
proved the guilt of the accused
persons. In this context it is relevantto take note of what has been stated
in para 11 which reads as follows:
(SCC pp. 239-40)“11. It was lastly urged on
behalf of the appellant that
the lower courts ought not to
have relied upon the evidence
of dog tracking and suchevidence was not admissible
in order to prove the guilt of
the appellant. The evidence of
tracker dogs has been much
discussed. In Canada and in
r Scotland it has been
admitted. But in the UnitedStates there are conflicting
decisions:
‘There have been
considerable uncertainty inthe minds of the Courts as to
the reliability of dogs in
identifying criminals and
much conflict of opinion onthe question of the
admissibility of their actionsin evidence. A survey of the
cases however, reveals that
most Courts in which the
question of the admissibilityof evidence of-trailing by
blood-hounds has been
presented take the position
that upon a proper foundation
being laid by proof that the
dogs were qualified to trail
human beings, and that the
circumstances surrounding
the trailer were such as to
make it probable that the
person trailed was the guilty22/12/2017 23:06:54 :::HCHP
22party, such evidence is
admissible and may be
permitted to go to the jury for
what it is worth as one of the
circumstances which may
tend to connect the defendant.
with the Crime.’ (para 378,
Am. Juris. 2nd edn. Vol. 29, p.
429.)
There are three objections which
are usually advanced against the
reception of such evidence. First,
since it is manifest that the dog
cannot go into the box and give his
evidence on oath, and consequently
submit himself to cross-
examination, the dog s human
companion must go into the box and
report the dog s evidence, and this
is clearly hearsay. Secondly, there
is a feeling that in criminal casesthe life and liberty of a human being
should not be dependent on canineinferences. And, thirdly, it is
suggested that even if such evidence
is strictly admissible under the rules
of evidence it should be excluded
because it is likely to have adramatic impact on the jury out of
proportion to its value. In R. v.
Montgomery,1866 NI 160 a police
constable observed men stealingwire by the side of a railway line.
They ran away when he approachedthem. Shortly afterwards the police
got them on a nearby road. About an
hour and half later the police
tracker dog was taken to the base ofthe telegraph pole and when he had
made a few preliminary sniffs he set
off and tracked continuously until
he stopped in evident perplexity at
the spot where the accused had been
put into the police car. At the trial it
appeared that other evidence
against the accused that they had
been stealing the wire was
inconclusive and that the evidence
of the behaviour of the tracker dog22/12/2017 23:06:54 :::HCHP
23was crucial to sustain the
conviction. In these circumstances
the Court of Criminal Appeal ruled
that the evidence of the constable
who handled the dog on its tracking
and reported the dog s reactions.
was properly admitted. The Court
did not regard its evidence as aspecies of hearsay but instead the
dog was described as “a tracking
instrument and the handler wasregarded as reporting the
movements of the instrument, in the
same way that a constable in traffic
case might have reported on the
behaviour of his speedometer. It was
argued in that case that the trackerdog s evidence could be likened to
the type of evidence accepted from
scientific experts describing
chemical reactions, blood tests and
the actions of bacilli. Thecomparison does not, however,
appear to be sound because thebehaviour of chemicals, blood
corpuscles and bacilli contains no
element of conscious volition or
deliberate choice. But Dogs are
intelligent animals with manythought processes similar to the
thought processes of human beings
and wherever you have thought
processes there is always the risk oferror, deception and even self-
deception. For these reasons we areof the opinion that in the present
state of scientific knowledge
evidence of dog tracking, even if
admissible, is not ordinarily ofmuch weight.
It is submitted by learned
Counsel for the appellant that in the
said case this Court had upheld the
conviction. Though in the said case
the conviction was upheld, but that
was done after excluding the
evidence of Dog Squad. This Court
found that the rest of the
prosecution evidence proved the22/12/2017 23:06:54 :::HCHP
24charges for which the appellants
therein had been convicted.”
12. This Court in Rajdev alias Raju another vs. State
of H.P., Criminal Appeal No. 288 of 2015, decided on 30.05.2016,
.
has held as under:
51. It is settled position of law
that suspicion however strongcannot be a substitute for proof. In
a case resting completely on the
circumstantial evidence the chain of
circumstances must be so complete
that they lead only to oneconclusion, that is the guilt of the
accused. In our opinion, it is not
safe to record a finding of guilt of
the accused Manoj Sahani and the
accused Manoj Sahani is entitled to
r get the benefit of doubt.”
13. After touching the different aspects relating to the law
laid down by Hon’ble Courts on the subject of circumstantial
evidence, the testimonies of the prosecution witnesses need
discussion and analysis.
14. PW-1, Shri Sanjay Kumar, was associated by the police
in the investigation on 10.09.2011 and in his presence the
complainant (mother of the deceased) produced a paper slip, mark
‘A’, allegedly written by the deceased and the same was taken into
possession vide seizure memo, Ex. PW-1/A. As per this witness, he
and brother of the deceased signed seizure memo, Ex. PW-1/A. PW-
2, Shri Ramesh Chand (father of the accused) deposed that he is not
22/12/2017 23:06:54 :::HCHP
25
aware about the cell number of the accused. This witness was
declared hostile and he, in his cross-examination, has deposed that
he used to receive phone calls of his son from cell No. 7309400919.
.
He has further deposed that he has no knowledge that the accused
was also keeping another cell having number 9598829650. He has
deposed that the accused used to change his cell numbers during
his postings at different places.
15. PW-3, Ms. Priyanka Thakur, younger sister of the
accused, deposed that in the year 2011 the accused was posted in
Jhansi, U.P.. She has further deposed that in the year 2011 her cell
number was 8894677707 and she used to talk with the accused on
cell phone of her father. The accused never called her on her cell
number. This witness was also declared hostile and she, in her
cross-examination, has denied that cell number of the accused was
7309400919. As per this witness, during the period from June-July,
2011, the accused had come home on leave. She has denied that
during the leave period the accused used cell No. 8894677707. She
knew the deceased and at times used to call her. She denied that
the accused used to talk with the deceased from her cell number.
She admitted that accused had cell number 9598829650. She has
also denied that during the period from 23.06.2011 to 19.07.2011
the accused made frequent calls to the deceased from cell number
22/12/2017 23:06:54 :::HCHP
26
8894677707 to cell No. 9816846315, i.e., of the deceased. As per
this witness, Shri Sandeep Kumar, brother of the deceased used to
call her from cell number 9129241325 and he was having another
.
cell number 9816846315. She has further deposed that Shri
Sandeep Kumar gave her a mobile phone of “Nokia” without SIM
card and the accused took that handset with him after his leave.
16. PW-4, Naib Subedar P.B. Shajilal, deposed that in the
year 2011 the accused was posted as Sepoy Gunner No. 14939093H
at Babina Cantt. U.P. and he was Platoon Commander of Alpha
Company. As per this witness, the accused was on thirty days’
annual leave w.e.f. 23.06.2011 to 22.07.2011. Leave certificate is
Ex. PW-4/C. He has further deposed that the accused availed four
days’ casual leave w.e.f. 07.03.2011 to 10.03.2011 with permission
to prefix 06.03.2011 and to this effect leave certificate is Ex. PW-
4/D. The accused also availed fifteen days’ annual leave w.e.f.
13.05.2011 to 27.05.2011 and qua this leave certificate is Ex. PW-
4/E.
17. PW-5, Shri Malkiat Singh, deposed that the deceased
was known to him and her cell number was 9816846315. He used
to talk with her on this number. As per this witness, during the year
2010-11 the deceased disclosed that she is in love with the accused.
This witness, in his cross-examination, has deposed that cell No.
22/12/2017 23:06:54 :::HCHP
27
9816846315 was of the brother of the deceased. He has further
deposed that the deceased was interested to marry him, but due to
her relations he refused. PW-6, SI Kirpal Singh, deposed that the
.
accused made a disclosure statement, Ex. PW-6/A, under Section 27
of the Indian Evidence Act disclosing that he has buried the dead
body of the deceased in a nallah near Hanuman Temple at Bassi
Bhoranj and he can get the same recovered. He has further deposed
that he signed the disclosure statement as a witness and Constable
Hardev Singh of Police Station Sarkaghat was also present there.
This witness, in his cross-examination, has deposed that disclosure
statement, Ex. PW-6/A, was made by the accused at 4 p.m.
18. PW-7, Shri Rattan Lal Thakur, Naib Tehsildar, deposed
that on 07.08.2012, around 10:45 p.m., SHO Police Station,
Bhoranj, alongwith SHO Police Station, Sarkaghat, came to his
residence with application, Ex.PW-7/A, seeking permission to trace
the dead body of the deceased. He has further deposed that a
simultaneous request seeking his presence for the identification of
the spot and recovery of the dead body was also made. He allowed
the application and accompanied the police personnel to the spot.
As per this witness, they went to a cave in Kukkad nallah. In his
presence the accused identified the place where he had buried the
deceased after killing her. The police prepared spot identification
22/12/2017 23:06:54 :::HCHP
28
memo, Ex. PW-7/B, in his presence, which bears his signatures.
The digging was started, which continued till 1 a.m. and few skeleton
bones were recovered and put in a box. As per this witness, as it
.
was dark, the digging was stopped and it was decided to resume the
digging work in the morning. They left the spot and guards were
deputed on the spot. On the subsequent morning, as decided, he
reached the spot around 09:45 a.m., but by that time, the police had
already completed the digging work and recovered the skeleton
remains of the human body. He has further deposed that alongwith
the skeleton remains, the police had also recovered salwar, kameez
of light green colour, human hair, a silver ring alongwith black
threads tied on the ankle of the skeleton. The complainant (mother
of the deceased) identified the clothes and other remains as that of
the deceased. The recovered skeleton remains alongwith other
articles were put in a carton box and a bone was separated for the
purpose of DNA examination, which was packed in a separate cloth
parcel and stitched. The said parcel was sealed with four seals
having impression ‘V’ and taken into possession vide seizure memo,
Ex. PW-7/C. The police also took photographs of the skeleton and
the digging process was videographed. This witness, in his cross-
examination, has deposed that he received a phone call from SDM,
Bhoranj, to allow application, Ex. PW-7/A. On 08.08.2012 by the
22/12/2017 23:06:54 :::HCHP
29
time he reached the spot, the digging operation was complete. He
has further deposed that on 07.08.2012 the police insisted to
identify the spot, as it was directed by their superiors. As per this
.
witness, photographs were taken by police officials and by some
other persons, who was not the police official. Likewise,
videography was done by the police officials and by a person with his
cell phone. He has further deposed that no seizure memo was
prepared qua the bones which were recovered during the night of
07.08.2012. He signed two documents on 07.08.2012. As per this
witness, accused, in his presence, made a statement disclosing that
he after killing the deceased buried her dead body on the spot,
whereas in his statement recorded under Section 161 Cr.P.C. it is
not so recorded.
19. PW-9, Shri Baldev Singh, Patwari, on directions of
Tehsildar issued jamabandi for the year 2005-06, Ex. PW-8/A, and
aks sajra, Ex. PW-8/B. PW-9, Shri Shashi Kant Verma, Nodal
Officer, Idea Cellular Limited, deposed that on being requested by
the police, he traced that cell No. 917309400919, which was
outstation number of Idea Cellular, U.P. (East Circle), was operating
in IMEI No. 910517500069140. He has further deposed that the
aforesaid cell No. received SMS from Cell No. 919232232665 on
21.07.2011 at 10.05. a.m. in H.P. Circle. He has issued his report,
22/12/2017 23:06:54 :::HCHP
30
which is Ex. PW-9/A. He has not stated anything that in whose
name cell No. 917309400919 is registered. PW-10, HC Hoshiar
Singh, is a formal witness. In his presence PSI Sanjeev Kumar,
.
handed over postmortem report and two VCDs to Inspector Mohinder
Singh, SHO, Police Station, Bhoranj, Hamirpur, vide seizure memo,
Ex. PW-10/A.
20. PW-11, HHC Dharam Singh, Malkhana Moharar/Addl.
MHC, Police Station, Sarkaghat, deposed that on 08.08.2012, PSI
Sanjeev Kumar handed over and deposited the following articles:
1. One carton box sealed in a cloth parcel
r with 8 seals of impressions ‘V’
containing skeleton remains, clothes,ornaments and black thread of a female;
2. One cloth parcel sealed with 4 seals
bearing impression ‘V’ containing bone
of the skeleton;
3. Sample seal impression ‘V’ on the piece
of cloth.
He made requisite entries qua the deposit of the above parcels at Sr.
No. 934/12, column No. 4, of Malkhana Register No. 19, which he
brought in the Court. Extract of entry is Ex. PW-11/A. He has
further deposed that on 16.08.2012, the sealed parcels, for being
deposited in Forensic Medicine, IGMC, Shimla, vide RC No. 184/12,
dated 16.08.2012, were handed over to HHC Nanku Ram. Copy of
RC No. 184/12 is Ex. PW-11/B. On 21.09.2012, HHC Suresh
Kumar, came with the sealed parcels and postmortem report and he
22/12/2017 23:06:54 :::HCHP
31
handed over the following parcels:
1. One sealed carton box bearing 3 seals of
‘DKG’ containing skeleton remains;
2. One sealed cloth parcel bearing 10 seals
of impression ‘DKG’ containing clothes;
.
3. One sealed cloth parcel bearing 4 seals
of impression ‘DKG’ containing PMN;
4. One sealed cloth parcel bearing 3 seals
of impression ‘DKG’ containing sacredthread;
5. One sealed cloth parcel bearing 3 seals
of impression ‘DKG’ containing finger
ring;
6. One sealed cloth parcel bearing 6 seals
of impression ‘DKG’ containing left
femur.
He made the required entries in the malakhana register, i.e., Ex. PW-
11/A. He has further deposed that on 04.10.2012, sealed parcel
containing left femur was sent to FSL, Junga, through Constable
Manish Kumar, vide RC No. 232/12, dated 04.10.2012, copy of
which is Ex. PW-11/C, for DNA profiling.
21. PW-13, Shri Guri Singh, Panchayat Secretary, Gram
Panchyat Cholthara, on being requested by the police, prepared and
issued date of birth certificate of the deceased, which is Ex. PW-
13/B. Likewise, he also prepared and issued copy of pariwar
registered, which is Ex. PW-13/C. PW-14, Shri Devinder Verma,
Nodal Officer, Bharti Air Tel Limited, provided billing address and
CDRs of mobile SIM No. 88946-77707, w.e.f. 21.06.2011 to
22.07.2011. As per this witness, cell No. 88946-77707 was issued
22/12/2017 23:06:54 :::HCHP
32
in the name of one Priyanka Thakur, daughter of Ramesh Thakur,
village Post Office Chamboh, Tehsil Bhoranj, District Hamirpur,
H.P. He has also provided billing address and CDRs of mobile No.
.
98168-46315. As per this witness this mobile number was issued in
the name of Sandeep Kumar son of Jaswant Singh, resident of
Village Karyal, Tehsil Sarkghat, District Mandi.
22. PW-15, HHC Nanku Ram, is a formal witness. He has
deposed that on 16.08.2012, HHC Dharam Singh, Malkhana
Muharar/Addl. MHC, P.S. Sarkghat, gave him two parcels, which he
deposited on the same day in Department of Forensic Science, IGMC,
Shimla. As per this witness, copy of RC No. 184/12, dated
16.08.2012, vide which parcels were handed over to him is Ex. PW-
11/B. He handed over the receipt qua deposit of the parcels to HHC
Dharam Singh on the same day. The parcels remained intact under
his custody. PW-16, Shri Kamlesh Kumar, deposed that Shri
Sandeep Kumar (brother of the deceased) called him and disclosed
that the deceased had gone with a boy, who is serving in Army and
now she is back to Hamirpur. He along Sandeep and Meera Devi
(complainant) went to Hamirpur and met Shri Ramesh Chand, father
of the accused. In his presence compromise took place, which is Ex.
PW-16/A, and he signed the same as a witness. His signatures are
in encircled red, which is Ex. PW-6/A. A sum of `25,000/- (rupees
22/12/2017 23:06:54 :::HCHP
33
twenty five thousand) was paid to the mother of the deceased and
complainant party agreed not to report the matter to the police.
23. The complainant, Smt. Meera Devi (mother of the
.
deceased), who is key prosecution witness, was examined as PW-17.
As per this witness, the deceased and the accused were having love
affair and in the month of March, 2011, the accused took the
deceased to Gwalior (M.P.), where he was serving in Army.
Subsequently, father of the accused, Shri Ramesh Thakur, brought
the deceased back. She entered into a compromise with Ramesh
Thakur, which is Ex.PW-16/A, and took `25,000/- (rupees twenty
five thousand) for not reporting the matter to the police. She has
further deposed that the accused talked with her twice and disclosed
that he is interested to marry the deceased, but his parents are not
willing. Thereafter the accused came on leave and the deceased met
him at Awahdevi. She was told by the deceased that on 18.07.2011
the accused called her at about 09:30 p.m. and asked her to meet
him at Awahdevi on 19.07.2011. On the subsequent morning, the
deceased, wearing a new suit, went to Awahdevi and she did not
return. She contacted the deceased on her cell phone around 12:30
p.m. and the deceased informed her that she is in the vehicle of the
friend of the deceased. Thereafter, she repeatedly telephoned her,
but the mobile of the deceased went out of coverage area. She
22/12/2017 23:06:54 :::HCHP
34
lodged a missing complaint qua the deceased. She has further
deposed that as the whereabouts of the deceased could not be traced
upto September, 2011, she moved a complaint/application before
.
Superintendent of Police, Mandi, which is Ex. PW-17/A. When the
police came to her house, she handed over a handwritten note of the
deceased, which she found beneath her pillow. The said note
disclosed that the deceased had gone with the accused. The said
note was taken into possession vide seizure memo, Ex. PW-1/A.
Initially, the accused was arrested, however, he was released later
on. A year later police came to her house and told that they have
suspicion that the accused had killed the deceased. Subsequently,
through the police, she came to know that the accused had
confessed his guilt. She was called by the police and she alongwith
her brother, Shri Jagar Nath, went to Bassi nallah near Hanuman
Mandir, where police had employed two labourers for digging and the
digging work was in operation. During the digging operation,
skeleton remains of a female wearing light green colour suit were
recovered and a silver ring with a black stone was also recovered.
The skeleton remains had black sacred thread tied on the ankles.
She, on the basis of clothes and ornaments, identified the skeleton
remains as that of the deceased. The police put the skeleton
remains in a carton box and a bone was separately taken out for the
22/12/2017 23:06:54 :::HCHP
35
purpose of DNA examination. As per this witness, the said carton
box was packed in a white cloth, which was sealed and the same was
taken into possession vide seizure memo, Ex. PW-7/C. She has
.
further deposed that after 4-5 days she was again called by the
police for taking her blood sample for DNA analysis. She was taken
to Government Hospital, Sarkaghat, where her blood sample was
taken. This witness, in her cross-examination, has deposed that she
was called after disclosing that the skeleton has been traced.
24. PW-18, Shri Sandeep Thakur (brother of the deceased),
deposed that in the month of July, 2011, the accused had come on
leave and he met him at Awahdevi temple, where he told him that he
is interested in marrying the deceased, but his parents are not
willing. He has further deposed that on 19.07.2011 the deceased
went missing. After 3-4 days a missing report was lodged and they
had suspicion that the accused was involved in the incident. As per
this witness, 2-3 months later his sister again went missing and the
complainant lodged complaint, Ex. PW-17/A, with Superintendent of
Police, Mandi, and the investigation ensued. His mother
(complainant) handed over to police a handwritten note of the
deceased, which is Ex. PW-17/B, and the same was taken into
possession vide seizure memo, Ex. PW-1/A. He has further deposed
that after 2-3 days, when the deceased went missing, he telephoned
22/12/2017 23:06:54 :::HCHP
36
the accused on his cell No. 07309400919 from his cell No.
9129241325 and the accused told him that he had done away with
the deceased and he can do whatever he wants to do. On
.
19.07.2011, around 12:30 p.m., he telephoned the deceased and she
informed him that she is with the accused in a vehicle of his friend.
As per this witness, the accused, whenever he used to come on leave,
used to call the deceased from cell No. 08894677707 and the same
was of his sister, Ms. Priyanka Kumari. He has deposed that the
accused prior to 19.07.2011 took the deceased to Gwalior,
wherefrom father of the accused brought her back and compromise,
Ex. PW-16/A, was entered into. Subsequently, he came to know
that the accused killed the deceased and also disposed of her dead
body at Bassi nallah. This witness, in his cross-examination, has
deposed that the handwritten note, Ex. PW-17/B, was recovered by
the police from the room of the deceased. He denied that the
deceased went missing on 22.07.2011.
25. PW-19, Constable Manish Kumar, is a formal witness.
He, while posted as Malkhana Muharar/Addl. MHC, Police Station,
Sarkaghat, was handed over two sealed parcels by HHC Dharam
Singh, vide RC No. 232/12, dated 04.10.2012, copy of which is, Ex.
PW-11/C. He deposited the same in FSL, Junga, and the parcels,
under his custody, remained intact. PW-20, ASI Om Parkash,
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37
deposed that on 09.09.2011, ASI/SHO Rajinder Kumar, handed over
the case file of the present case to him and he went to the house of
the complainant. He has further deposed that the complainant
.
produced a hand written note of the deceased, which is Ex. PW-
17/B, and the same was taken into possession vide seizure memo,
Ex. PW-1/A. He also prepared the spot map, Ex. PW-20/A and
recorded the statements of the witnesses under Section 161 Cr.P.C.
As per this witness, he also collected the records qua date of birth of
the deceased and copy of the pariwar register. On 18.09.2011, he
also went to Babina, District Jhansi, U.P., and procured the leave
record qua the accused. He, after completing the investigation
handed over the case file to SI Kripal Singh, Additional SHO, Police
Station, Sarkaghat. This witness, in his cross-examination, has
deposed that cell number of the accused, i.e., 8894677707, was put
on surveillance. As per this witness, the deceased did not have any
SIM card on her own name and she was using cell number
9816846315, which was in the name of her brother, Shri Sandeep
Thakur.
26. PW-21, ASI Rajinder Kumar, deposed that for further
investigation the case file was handed over to him. After procuring
the arrest warrant, he reached Babina, District Jhansi, U.P., on
01.02.2012, but by that time the accused had already proceeded on
22/12/2017 23:06:54 :::HCHP
38
leave for a month. As per this witness, the accused was using cell
No. 7399400919 and the same was issued in the name of Jyoti Soni,
daughter of Shri Lakhan Lal, resident of Babina Cantt. District
.
Jhansi. In his investigation it has come that Jyoti Soni had been
married two years back and the above cell number was not issued in
her name. The accused, after his arrest, disclosed that whenever he
used to come home, he used to use cell number, i.e., 8894677707 of
his sister. The accused used to call the deceased from this number.
On receipt of application of the complainant, he registered FIR No.
207/11, dated 09.09.2011, which is Ex. PW-21/C. PW-22, HC
Ashok Kumar, deposed that on 04.07.2012 a special team was
constituted and on 06.07.2012 he went to Babina, District Jhansi,
for investigating the matter. After associating the accused in the
investigation, he returned on 14.07.2012. In his investigation it was
unearthed that many calls have been exchanged between cell
number 98176-45093 and 98168-46315, i.e. the cell number of the
deceased. As per his investigation, cell number 98176-45093 was
issued in the name of Shri Malkiat Singh, resident of village
Shahpur, District Kangra, HP. After completing the investigation, he
handed over the case file to PSI Sanjeev Gautam, Police Station
Sarkaghat.
27. PW-23, Dr. Piyush Kapila, Assistant Professor,
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39
Department of Forensic Medicine, IGMC, Shimla, conducted the
postmortem examination of skeletal remains allegedly recovered at
the instance of the accused from village Takota Brahmana nallah,
.
District Hamirpur. As per his report, Ex. PW-23/A, he observed as
under:
“A Human, female of around 20-22 years
of having living height of around
160.89+/-5 cms, consistent with Indian
Race with no other identification
features other than the belongings and
no injuries present on the skeletalremains, and where cause of death
cannot be opined, and who might have
died at least more than 6 months before
r the examination.”
28. PW-24, Inspector Mohinder Singh, deposed that on
07.08.2012 the police personnel from Police Station Sarkaghat
alongwith the accused came to Police Station Bhoranj and they
apprised him that on the basis of the information given by the
accused, the dead body of the deceased is to be exhumed from
Tikkar road, which falls in his jurisdiction. Thereafter, application,
Ex. PW-7/A, was moved to Naib Tehsildar, Bhoranj, seeking his
permission to exhume the dead body. The accused led the police
party to a cave near Hanuman Mandir, Village Takota Brahmana
and identified a spot. Pursuant to identification of the spot by the
accused, spot map, Ex. PW-7/B, was prepared, which bears his and
the signatures of the Executive Magistrate-cum-Naib Tehsildar,
Bhoranj. The digging work was started and some skeleton bones
22/12/2017 23:06:54 :::HCHP
40
were recovered. The digging was stopped and the recovered bones
were kept in a carton box and it was decided to resume the digging
in the next morning. The police deputed a guard for protection of
.
the spot. On the subsequent morning, he did not join the
investigation. This witness investigated the matter after the case
was transferred on 27.09.2012 from Police Station Sarkaghat to
Police Station, Bhoranj. He registered FIR under Section 302 IPC
and procured the postmortem report of the deceased. He also
recorded the statements of the witnesses. This witness, in his cross-
examination, has deposed that no private person was deployed
during the night for digging work and the bones were recovered from
the sand.
29. PW-25, SI Sanjeev Kumar, headed the Special
Investigation Team, which was constituted by Superintendent of
Police, Mandi. He has deposed that during his investigation he found
that cell number 7309400919 was being used by the accused in
Uttar Pradesh and it was operating in cell phone set with IMEI No.
9105175000069140 and said cell phone set was of the deceased, on
which she was using her cell number 98168-46315. He has further
deposed that after going through the CDRs of cell number
7309400919, 9816846315 and 8894677707 he proceeded with the
investigation. He called the accused on 07.08.2012 in Police Station,
22/12/2017 23:06:54 :::HCHP
41
Sarkaghat, for interrogation, when he had come on leave. The
accused confessed his guilt. This witness reiterated the prosecution
story qua recovery of skeleton etc., so his version, being repetitive in
.
nature qua that aspect of the prosecution case, is deliberately left.
He has deposed that pursuant to the spot identification by the
accused, memo, Ex. PW-7/B, was prepared in presence of Shri
Ratttan Lal Thakur, Executive Magistrate, Bhoranj, and Inspector
Mohinder Singh, SHO, Police Station, Bhoranj. This witness, in his
cross-examination, has deposed that officials of P.O. Cell-A on
07.08.2012, around 5-6 p.m., met the accused at Sarkaghat and the
accused was arrested after 1½ hours of interrogation. As per this
witness, the disclosure statement of the accused was recorded
immediately after his arrest. He has further deposed that the father
of the accused was informed about the arrest of the accused at about
07:30 p.m.
30. Before analyzing the prosecution evidence, some vital
aspects of the prosecution case need discussion. It has come on
record that earlier the deceased had eloped with the accused and the
accused took her to his place of posting, i.e., Jhansi, U.P., where he
was serving in the Army. It has also come on record that father of
the deceased brought the deceased back. Thereafter, the parties
entered into a compromise and the matter was not reported to the
22/12/2017 23:06:54 :::HCHP
42
police. The complainant, who is mother of the deceased, while
appearing in the witness-box, as PW-17, has deposed that the father
of the accused gave `25,000/- as compensation, at that time, but
.
this fact has not been mentioned in the compromise.
31. In the present set of circumstances, DNA report, Ex. PX,
could have been conclusive piece of evidence, but the same is of no
avail, as DNA report, Ex. PX, demonstrates as under:
“Observations:
i) Exhibit-1 (femur bone) did not yield good
quality DNA despite repeated efforts. The
isolated DNA was highly degraded as
visualized by 0.8% agarose gelelectrophoresis. The DNA did not show any
amplification of fifteen autosomal STRsAmpF/STR Identifiler Plus ® PCR
Amplification Kit, hence a STR- DNA profile
could not be generated. Only Amplification
of amelogenin (X) was visible which indicates
that the bone belongs to a female.
ii) Exhibit-1 (Blood sample of Meera Devi on FTA
card) yielded good quality DNA and was
possible to amplify all the fifteen autosomal
STR loci and amelogenin with AmpF/STR
Identifiler Plus ® PCR Amplification Kit.
Conclusions:
On the basis of the above analysis performed on
the aforesaid exhibit, it concluded that:
1. Exhibit-1 (femur bone) did not yield amplifiable
DNA with the available technology in the
laboratory despite repeated and extensive
efforts; and hence no STR DNA profile could be
generated. Only amplification of amelogenin (X)
was visible which indicates that the bone
belongs to a female. No, further opinion is
possible.”
32. The learned Senior Counsel for the accused, in order to
strengthen his arguments, has placed reliance on the following
22/12/2017 23:06:54 :::HCHP
43
judicial pronouncements:
1. Harendra Narain Singh vs. State of Bihar,
AIR 1991 SC 1842;
2. Surinder Pal Jain vs. Delhi Administration,
AIR 1993 SC 1723;
.
3. Tarseem Kumar vs. The Delhi
Administration, AIR 1994 SC 2585;
4. 2002(2) SCC 426
5. Sashi Jena others vs. Khadal Swain
another, 2004(4) SCC 236;
6. Mohd. Faizan Ahmad alias Kalu vs. State of
Bihar, 2013(2) SCC 131;
6. Anvar P.V. vs. P.K. Basheer others,
2014(10) SCC 473;
7. Tomaso Bruno another vs. State of Uttar
Pradesh, 2015(7) SCC 178
33. In Harendra Narain Singh vs. State of Bihar, AIR
1991 SC 1842, the Hon’ble Supreme Court, vide para 6, has held as
under:
“6. These principles were reiterated by
this Court in Shivaji Saheb Rao Bobdev. State of Maharashtra, (1973) 2 SCC
793 : (AIR 1973 SC 2622) wherein it
was emphasized that where the
prosecution rests merely on
circumstantial evidence, the factsestablished should be consistent only
with the hypothesis of the guilt of theaccused, that is to say, they should
not be explainable on any other
hypothesis except that the accused is
guilty. The Court further observedthat the circumstances should be of a
conclusive nature and tendency and
they should exclude every possible
hypothesis except the one to be proved
and the chain of evidence should be so
complete as to rule out any
reasonable ground for the conclusion
consistent with the innocence of the
accused and the circumstances must
show that in all human probability
the act must have been done by the
accused. These principles have been22/12/2017 23:06:54 :::HCHP
44consistently laid down by this Court
in several decisions, it is not
necessary to refer to all these
decisions. However, we would like to
refer to the decision in Sharad B.
Chand v. State of Maharashtra, (1985)
1 SCR 88 : (AIR 1984 SC 1622) as this.
case has been relied upon by the High
Court in upholding the conviction of
the appellants. In Sharad B. Chand’s
case this Court while considering the
absence of explanation or a falseexplanation of the accused for the
circumstances and the facts proved
against him struck a note of caution
that before a false explanation is used
as additional link against the
accused the Court should satisfy itselfthat (1) various links in the chain of
evidence led by the prosecution have
been satisfactorily proved, (2) the
circumstances point to the guilt of
accused with reasonable definiteness;
r and (3) the circumstances are in
proximity to the time and situationwhere all these conditions are
fulfilled only then a Court can use a
false explanation or a false defence of
an accused, as an additional link to
lend an assurance to the Court andnot otherwise. There is yet another
basic rule of criminal jurisprudence
that if two views are possible on the
evidence adduced in a case ofcircumstantial evidence, one pointing
to the guilt of the accused and the
other to his innocence, the Courtshould adopt the latter view
favourable to the accused. We have
reminded ourselves of these principles
with a view to ascertain as to whetherthe high Court has correctly applied
these principles in convicting and
sentencing.”
In the present case the circumstantial evidence on one hand points
towards the guilt of the accused and on the other hand it points
towards the innocence of the accused, therefore, this Court is also of
22/12/2017 23:06:54 :::HCHP
45
the view that in such a situation view favouring the guilt of the
accused must be given go by. The judgment (supra) is fully
applicable to the facts of the present case.
.
34. In Surinder Pal Jain vs. Delhi Administration, AIR
1993 SC 1723, the Hon’ble Supreme Court, vide paras 26, 30 and
34, has held as under:
“26. On our independent appraisal of the
evidence we find that the prosecution
evidence relating to the disclosurestatement and the recovery of
ornaments is not only discrepant and
contradictory but also suffers from
glaring infirmities and
improbabilities rendering it unsafe to
reply upon the same.”
… … … … … …
30. In view of the serious discrepancies,
contradictions and the attempt of the
Investigating Officer Harmit Singh to
create false clues and fabricateevidence, we are of the opinion that
the learned Sessions Judge was
perfectly justified in rejecting the
prosecution evidence relating to thedisclosure statement Ex. PC and the
consequent recovery of the ornaments.
The prosecution has failed to
established that the appellant did
make the disclosure statement as
alleged by the prosecution or led tothe recovery of the ornaments
belonging to the deceased in the
manner suggested by the prosecution.
This piece of circumstantial evidence,
therefore, has not at all been
established, much less conclusively.
… … … … … …
34. On an independent appraisal of the
evidence on record, we have therefore
unhesitatingly come to the conclusion
that the learned Sessions Judge was22/12/2017 23:06:54 :::HCHP
46perfectly justified in acquitting the
appellant of all the charges and the
reasoning given and the findings
recorded by her are sound cogent and
reasonable. The High Court was not
justified to set aside those findings on
surmises and against the appellant by.
the High Court is not sustainable in
law and we agree with the learned
Sessions Judge that the prosecution
has not established the case against
the appellant beyond a reasonabledoubt. We, accordingly, set aside the
judgment of the High Court convicting
the appellant for the offence under
Sec. 302/ 203, I.P.C. The appeal is
allowed and the appellant acquitted
of both the charges. The appellant ison bail, his bail bonds shall stand
discharged.”
No doubt the prosecution case rests wholly on circumstantial
evidence and the statements of PW-7, Shri Rattan Lal Thakur, Naib
Tehsildar, who is witness to the recovery of skeleton, PW-17, Smt.
Meera Devi (mother of the deceased) and PW-18, Shri Sandeep
Thakur (brother of the deceased) make the links in the chain of the
circumstances weak. The statements of the above key prosecution
witnesses suffer from infirmities and improbabilities, therefore, the
judgment (supra) is fully applicable to the facts of the present case.
35. In Tarseem Kumar vs. The Delhi Administration, AIR
1994 SC 2585, the Hon’ble Supreme Court, vide para 8, has held as
under:
“8. Normally, there is a motive behind
every criminal act and that is why
investigating agency as well as the
Court while examining the complicity
of an accused try to ascertain as to
what was the motive on the part of22/12/2017 23:06:54 :::HCHP
47the accused to commit the crime in
question. It has been repeatedly
pointed out by this Court that where
the case of the prosecution has been
proved beyond all reasonable doubts
on basis of the materials produced
before the Court, the motive loses its.
importance. But in a case which is
based on circumstantial evidence,
motive for committing the crime on
the part of the accused assumes
greater importance. Of course, if eachof the circumstances proved on behalf
of the prosecution is accepted by the
Court for purpose of recording a
finding that it was the accused who
committed the crime in question, even
in absence of proof of a motive forcommission of such a crime, the
accused can be convicted. But the
investigating agency as well as the
court should ascertain as far as
possible as to what was the
r immediate impelling motive on the
part of the accused which led him tocommit motive on the part of the
appellant to commit the murder of
Gulshan, has been suggested or
established on behalf of the
prosecution.”
In the case in hand, prosecution has tried to portray the motive
behind the crime was that accused killed the deceased as he wanted
to get rid of her. However, the prosecution evidence does not even
subtly support this view. No doubt, the prosecution need not to
necessarily prove motive behind the crime, however, motive can
provide important cues qua the offence. Therefore, in the present
case motive for committing the crime by the accused assumes
greater importance. The judgment (supra) is fully applicable to the
facts of the present case.
22/12/2017 23:06:54 :::HCHP
48
36. In State of Haryana vs. Ram Singh, 2002(2) SCC 426,
the Hon’ble Supreme Court, vide paras 11, 13 and 19, has held as
under:
.
“11. Significantly, the prosecutor produced
the bundle containing three pieces of
bones, which are identified by PW-8 as
the same pieces of bones, which were
under seizure by the police authoritiesat the place of occurrence – these
bones, however, were not produced
and placed for examination before the
post-mortem doctor, as to whether
they can be co-related with that of the
deceased person. The SerologicalReport of these bones did not see the
light neither the Ballistic Experts’
Report as to the nature of the
weapons used. It is a duty cast on the
prosecution to prove the guilt of the
r accused persons beyond all
reasonable doubts. High Court hasdealt with the issue that the thumb
marked disclosure statement of Ram
Singh dated 29-1-1992 casts a lot of
doubt as to the involvement of
accused Ram Singh since Ram Singhwas arrested only on 13-2-1992 as
such disclosure statement of 29-1-
1992 cannot be had – it is this
inconsistency which was noticed bythe High Court and Ram Singh, at
whose instance the ring was supposed
to have been recovered, standsacquitted on the ground of benefit of
doubt. The High Court, however, has
not considered the medical evidence
vis-a-vis the eye-witnesses’ account –
the conflict and inconsistency
between the two also raises a very
great suspicion in the mind of the
Court : credibility of the prosecution
case stands at zero level by reason of
the conclusion of the High Court and
accordingly benefit of doubt to Ram
Singh. It is the same prosecutor,
which has recovered the pieces of
bones, had it exhibited but not
produced before the post-mortem
doctor, who would otherwise be able22/12/2017 23:06:54 :::HCHP
49to identify the bones as that of the
deceased. This failure of the
prosecution in our view, cannot be
taken as a mere omission but a
failure, which would go a long way in
the matter of reposing confidence
thereon.
.
… … … … … …
13. The judgment under appeal
admittedly does not contain a whisper
even pertaining to the contradictions
between eye-witnesses’ account and
the medical evidence. In the
contextual facts and as noticed above,
medical evidence runs positively
counter to the eye-witnesses’ accountrendering the ocular testimony not
being dependable or trustworthy.
There is no credible evidence on
record. It is significant that all the so-
called eye-witnesses were produced in
r Court by the police from its custody in
handcuff condition and it is only onthe witness box that the handcuffs
were released and taken up from the
body of the person. All of them are
under-trial prisoners being involved in
a murder trial. The Court thus has toscrutinise its evidence with a little bit
of caution and scrutiny so as to judge
their veracity. Admittedly all the
supposed eye-witnesses are relationsof the deceased. As such they fall
within a category of interested
witnesses. It is not the evidence oughtto be discredited by reason of the
witness being simply an interested
witness but in that event the Court
will be rather strict in its scrutiny asto the acceptability of such an
evidence. High Court has principally
relied on the 161 statements and the
contradictions available on the record
have not been taken note of. In our
view this is a clear error on the part
of the High Court. Some weapons have
been seized along with the cartridges
and it has been stated that such
recovery was effected in terms of the
disclosure statement. Before this
Court it has been strongly urged that22/12/2017 23:06:54 :::HCHP
50the same is in contravention of
Section 27 of the Evidence Act.
Undoubtedly, Section 27, though
provides an exception, but the Court
should always be vigilant about the
circumvention of its provision –
“Sarkar on Evidence (15th Edition)”
.
has the following to state on Section
27 :-
“….. The protection afforded
by the wholesome provisions
of Ss. 25 and 26 is sought tobe whittled down by the police
by their ingenuity in
manipulating the record of
the information given by the
accused in the case-diary in
such a manner as to make itappear that it led to the
discovery of some facts
although the police might
have made such discovery
from other sources. When a
r fact is once discovered from
information received fromanother source, there can be
no discovery again even if any
information relating thereto
is subsequently extracted
from the accused. A devisesometimes adopted by the
police is to stage a scene and
take the accused to the place
where the things discoveredlay buried or hidden and
require him to make a search
for them at the spot indicatedto the accused, or sometimes
the articles are first produced
before the accused and
thereafter statementspurporting to have been made
by him about the so-called
discovery are recorded. Court
should be watchful that the
protection afforded by Ss. 25
and 26 should not be
dependent on the ingenuity of
the police officer in
composing the narrative
conveying the information
relating to the alleged
recovery of a fact.”
22/12/2017 23:06:54 :::HCHP
51
… … … … … …
19. Significantly all disclosures,
discoveries and even arrests have been
made in the presence of three specific
persons, namely, Budh Ram, Dholu.
Ram and Atma Ram – no independent
witness could be found in the
aforesaid context – is it deliberate or
is it sheer coincidence – this is where
the relevance of the passage fromSarkar on Evidence comes on. The
ingenuity devised by the prosecutor
knew no bounds – Can it be attributed
to be sheer coincidence? Without any
further consideration of the matter,
one thing can be more or less withcertain amount of conclusiveness be
stated that these at least create a
doubt or suspicion as to whether the
same has been tailor-made or not and
in the event of there being such a
r doubt, the benefit must and ought to
be transposed to the accused persons.
The trial Court addressed itself on
scrutiny of evidence and came to a
conclusion that the evidence available
on record is trustworthy but the High
Court acquitted one of the accusedpersons on the basis of some
discrepancy between the oral
testimony and the documentary
evidence as noticed fully hereinbefore.
The oral testimony thus stands
tainted with suspicion. If that be the
case, then there is no other evidenceapart from the omni present Budh
Ram and Dholu Ram, who however are
totally interested witnesses. While it
is true that legitimacy of interestedwitnesses cannot be discredited in
any way nor termed to be a suspect
witness but the evidence before being
ascribed to be trustworthy or being
capable of creating confidence, the
Court has to be consider the same
upon proper scrutiny. In our view, the
High Court was wholly in error in not
considering the evidence available on
record in its proper perspective. The
other aspect of the matter is in regard
to the defence contention that22/12/2017 23:06:54 :::HCHP
52Manphool was missing from village
for about 2/3 days and is murdered on
21-1-1992 itself. There is defence
evidence on record by DW-3 Raja Ram
that Manphool was murdered on 21-1-
1992. The High Court rejected the
defence contention by reason of the.
fact that it was not suggested to Budh
Ram or Dholu Ram that the murder
had taken place on 21-1-1992 itself
and DW-3 Raja Ram had even come to
attend the condolence and it is byreason therefor Raja Ram’s evidence
was not accepted. Incidentally be it
noted that the evidence tendered by
defence witnesses cannot always be
termed to be a tainted one – the
defence witnesses are entitled toequal treatment and equal respect as
that of the prosecution. The issue of
credibility and the trustworthiness
ought also to be attributed to the
defence witnesses at par with that of
r the prosecution. Rejection of the
defence case on the basis of theevidence tendered by defence witness
has been effected rather casually by
the High Court. Suggestion was there
to the prosecution’s witnesses in
particular PW-10 Dholu Ram that hisfather Manphool was missing for
about 2/3 days prior to the day of the
occurrence itself – what more is
expected of the defence case : a doubtor a certainty – jurisprudentially a
doubt would be enough : when such a
suggestion has been made prosecutionhas to bring on record the availability
of the deceased during those 2/3 days
with some independent evidence.
Rejection of the defence case only byreason thereof is far too strict and
rigid a requirement for the defence to
meet – it is prosecutor’s duty to prove
beyond all reasonable doubts and not
the defence to prove its innocence –
this itself is a circumstance, which
cannot but be termed to be suspicious
in nature.”
Certainly, in the present case, medical evidence could have been very
22/12/2017 23:06:54 :::HCHP
53
vital, but DNA report, Ex. PX, is not reliable as the same is not
conclusive. DNA report, Ex. PX, demonstrates that femur bone,
which was sent for DNA analysis, did not yield amplifiable DNA, so
.
no STR DNA profile could be generated. The report only provides
that the sample bone belongs to a female. On the other hand,
recovery of bones in presence of witness Shri Rattan Lal Thakur,
Naib Tehsildar (PW-7) is also under doubt, as he has deposed that
on 08.08.2012 by the time he reached the spot, the police had
already exhumed the bones. Therefore, he has not witnessed the
recovery of bones from the spot. In the present case the
medical/scientific evidence is of no help and thus it cannot be said
that the same runs parallel to the prosecution witnesses.
37. In Sashi Jena others vs. Khadal Swain another,
(2004) 4 SCC 236, the Hon’ble Supreme Court, vide para 16, has
held as under:
“16. We now come to the fourth and the
last circumstance that according to
the medical evidence it was a case of
homicidal death and not suicide.
From the evidence of PW-6-the Doctorwho held post-mortem examination, it
would appear that it was a case of
homicidal death. It appears that
during the course of investigation,
PW-7-the Investing Officer – sent the
post-mortem report to Professor, FMT
Department, MKCG Medical College,
Berhampur, for his opinion, who
requested PW-7 to send hyoid bone, as
according to him, it was essential for
formation of opinion as to whether it
was a case of suicide or homicide, but22/12/2017 23:06:54 :::HCHP
54PW-7 reported vide his letter dated 15-
10-1986 (Ext. 16/1) that the said bone
was not available in the Sub-
Divisional Hospital where post-mortem
examination was conducted. Upon
receipt of the said letter, the said
Professor submitted his report under.
letter dated 15-10-1986 (Ext. 16),
which was based on the post-mortem
report, to the effect that, in the
absence of any mention in the post-
mortem report as to whether thefracture was ante-mortem or not and
what was the type of the fracture, it
could not be said with reasonable
amount of certainty that it was a case
of homicide. In this view of the
matter, it would not be safe to placereliance upon the report (Ext. 16).
Thus, in view of opinion of the doctor,
PW-6, we have no option but to hold
that it was a case of homicide and the
prosecution has succeeded in proving
r this circumstance against the accused
persons which, being the solitarycircumstance against them, cannot
form basis of their conviction as it is
well settled that in a case of
circumstantial evidence, there should
be chain of circumstances showingcomplicity of the accused persons
with the crime and the chain should
be complete. In view of the foreoging
discussion, we are of the view thatprosecution has failed to prove its
case beyond reasonable doubt and the
High Court was not justified inupholding conviction of the
appellants.”
It is settled law that in case of circumstantial evidence, the
prosecution has to prove each and every circumstance and connect
the links in a manner that nothing seems to be improbable, however,
as in the case in hand, vital links in the chain of circumstances are
missing, so the judgment (supra) is fully applicable to the facts of the
22/12/2017 23:06:54 :::HCHP
55
present case.
38. In Mohd. Faizan Ahmad alias Kalu vs. State of
Bihar, (2013) 2 SCC 131, the Hon’ble Supreme Court, vide para 18,
.
has held as under:
“18. The High Court’s observation that
there was a pre-conceived plan toabduct the children would not be
applicable to the appellant because
there is nothing on record to establish
that the appellant met the co-accused
and planned a strategy to abduct the
children and demand ransom. Hiscase stands on a different footing
from that of the other accused. The
case of the other accused will have to
be dealt with on its own merit. The
High Court was carried away by the
r heinous nature of the crime and, in
that, it lost sight of the basicprinciple underlying criminal
jurisprudence that suspicion, however
grave, cannot take the place of proof.
If a criminal court allows its mind to
be swayed by the gravity of theoffence and proceeds to hand out
punishment on that basis, in the
absence of any credible evidence, it
would be doing great violence to the
basic tenets of criminal jurisprudence.
We hope and trust that this is just an
aberration.”
The basic and fundamental principle of criminal jurisprudence is
that suspicion, howsoever grave, cannot supplant proof. In the case
in hand also, the prosecution has proceeded on suspicion and the
investigation ensued against the accused, but even after
culmination of the investigation, the hands of the prosecution are
empty and are not filled with proof and even the proof supporting the
22/12/2017 23:06:54 :::HCHP
56
suspicion lacks. Therefore, the judgment (supra) is fully applicable
to the facts of the present case.
39. In Anvar P.V. vs. P.K. Basheer others, (2014) 10
.
SCC 473, the Hon’ble Supreme Court, vide paras 7 to 21, has held
as under:
“7. Electronic record produced for the
inspection of the court is documentary
evidence under Section 3 of The
Indian Evidence Act, 1872 (hereinafter
referred to as ‘Evidence Act’). The
Evidence Act underwent a majoramendment by Act 21 of 2000 [The
Information Technology Act, 2000
(hereinafter referred to as ‘IT Act’)].
Corresponding amendments were also
introduced in The Indian Penal Code
r (45 of 1860), The Bankers Books
Evidence Act, 1891, etc.
8. Section 22A of the Evidence Act reads
as follows:
“22A. When oral admission as
to contents of electronic records arerelevant.- Oral admissions as to the
contents of electronic records are not
relevant, unless the genuineness of
the electronic record produced is inquestion.”
9. Section 45A of the Evidence Act reads
as follows:
"45A. Opinion of Examiner of
Electronic Evidence.-When in aproceeding, the court has to form an
opinion on any matter relating to any
information transmitted or stored in
any computer resource or any other
electronic or digital form, the opinion
of the Examiner of Electronic
Evidence referred to in section 79A of
the Information Technology Act,
2000(21 of 2000)., is a relevant fact.
Explanation.--For the purposes of this
section, an Examiner of Electronic
Evidence shall be an expert."10. Section 59 under Part II of the
22/12/2017 23:06:54 :::HCHP
57Evidence Act dealing with proof, reads
as follows:"59. Proof of facts by oral evidence.
All facts, except the contents of
documents or electronic records, may
be proved by oral evidence."11. Section 65A reads as follows:
.
"65A. Special provisions as to
evidence relating to electronic record:
The contents of electronic records
may be proved in accordance with the
provisions of section 65B."12. Section 65B reads as follows:
"65B. Admissibility of electronic
records:(1) Notwithstanding anything contained
in this Act, any information contained
in an electronic record which isprinted on a paper, stored, recorded
or copied in optical or magnetic
media produced by a computer
(hereinafter referred to as the
computer output) shall be deemed to
r be also a document, if the conditions
mentioned in this section are satisfiedin relation to the information and
computer in question and shall be
admissible in any proceedings,
without further proof or production of
the original, as evidence of anycontents of the original or of any fact
stated therein of which direct
evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer
output shall be the following, namely:-
(a) the computer output containing the
information was produced by the
computer during the period over
which the computer was usedregularly to store or process
information for the purposes of any
activities regularly carried on over
that period by the person having
lawful control over the use of the
computer;(b) during the said period, information of
the kind contained in the electronic
record or of the kind from which the
information so contained is derived
was regularly fed into the computer in
the ordinary course of the said22/12/2017 23:06:54 :::HCHP
58activities;
(c) throughout the material part of the
said period, the computer was
operating properly or, if not, then in
respect of any period in which it was
not operating properly or was out of
operation during that part of the.
period, was not such as to affect the
electronic record or the accuracy of
its contents; and(d) the information contained in the
electronic record reproduces or isderived from such information fed
into the computer in the ordinary
course of the said activities.
(3) Where over any period, the function of
storing or processing information for
the purposes of any activitiesregularly carried on over that period
as mentioned in clause (a) of sub-
section (2) was regularly performed by
computers, whether(a) by a combination of computers
r operating over that period; or(b) by different computers operating in
succession over that period; or
(c) by different combinations of
computers operating in succession
over that period; or(d) in any other manner involving the
successive operation over that period,
in whatever order, of one or more
computers and one or more
combinations of computers,all the computers used for that
purpose during that period shall be
treated for the purposes of thissection as constituting a single
computer; and references in this
section to a computer shall be
construed accordingly.(4) In any proceedings where it is desired
to give a statement in evidence by
virtue of this section, a certificate
doing any of the following things, that
is to say, -(a) identifying the electronic record
containing the statement and
describing the manner in which it was
produced;(b) giving such particulars of any device
involved in the production of that
electronic record as may be22/12/2017 23:06:54 :::HCHP
59appropriate for the purpose of
showing that the electronic record
was produced by a computer;(c) dealing with any of the matters to
which the conditions mentioned in
sub-section (2) relate,
and purporting to be signed by a.
person occupying a responsible
official position in relation to the
operation of the relevant device or the
management of the relevant activities
(whichever is appropriate) shall beevidence of any matter stated in the
certificate; and for the purposes of
this sub-section it shall be sufficient
for a matter to be stated to the best of
the knowledge and belief of the
person stating it.(5) For the purposes of this section, -
(a) information shall be taken to be
supplied to a computer if it is
supplied thereto in any appropriate
form and whether it is so supplied
r directly or (with or without human
intervention) by means of anyappropriate equipment;
(b) whether in the course of activities
carried on by any official, information
is supplied with a view to its being
stored or processed for the purposesof those activities by a computer
operated otherwise than in the course
of those activities, that information, if
duly supplied to that computer, shallbe taken to be supplied to it in the
course of those activities;(c) a computer output shall be taken to
have been produced by a computer
whether it was produced by it directly
or (with or without human
intervention) by means of anyappropriate equipment.
Explanation: For the purposes of this
section any reference to information
being derived from other information
shall be a reference to its being
derived therefrom by calculation,
comparison or any other process."These are the provisions under the
Evidence Act relevant to the issue
under discussion.13. In the Statement of Objects and
22/12/2017 23:06:54 :::HCHP
60Reasons to the IT Act, it is stated
thus:"New communication systems and
digital technology have made drastic
changes in the way we live. A
revolution is occurring in the way
people transact business.".
In fact, there is a revolution in the
way the evidence is produced before
the court. Properly guided, it makes
the systems function faster and more
effective. The guidance relevant to theissue before us is reflected in the
statutory provisions extracted above.14. Any documentary evidence by way of
an electronic record under the
Evidence Act, in view of Sections 59and 65A, can be proved only in
accordance with the procedure
prescribed under Section 65B. Section
65B deals with the admissibility of
the electronic record. The purpose of
r these provisions is to sanctify
secondary evidence in electronic form,generated by a computer. It may be
noted that the Section starts with a
non obstante clause. Thus,
notwithstanding anything contained
in the Evidence Act, any informationcontained in an electronic record
which is printed on a paper, stored,
recorded or copied in optical or
magnetic media produced by acomputer shall be deemed to be a
document only if the conditions
mentioned under sub- Section (2) aresatisfied, without further proof or
production of the original. The very
admissibility of such a document, i.e.,
electronic record which is called ascomputer output, depends on the
satisfaction of the four conditions
under Section 65B(2). Following are
the specified conditions under Section
65B(2) of the Evidence Act:(i) The electronic record containing the
information should have been
produced by the computer during the
period over which the same was
regularly used to store or process
information for the purpose of any
activity regularly carried on over that22/12/2017 23:06:55 :::HCHP
61period by the person having lawful
control over the use of that computer;(ii) The information of the kind contained
in electronic record or of the kind
from which the information is derived
was regularly fed into the computer in
the ordinary course of the said.
activity;
(iii) During the material part of the said
period, the computer was operating
properly and that even if it was not
operating properly for some time, thebreak or breaks had not affected
either the record or the accuracy of
its contents; and(iv) The information contained in the
record should be a reproduction or
derivation from the information fedinto the computer in the ordinary
course of the said activity.15. Under Section 65B(4) of the Evidence
Act, if it is desired to give a statement
r in any proceedings pertaining to an
electronic record, it is permissibleprovided the following conditions are
satisfied:(a) There must be a certificate which
identifies the electronic record
containing the statement;(b) The certificate must describe the
manner in which the electronic record
was produced;(c) The certificate must furnish the
particulars of the device involved in
the production of that record;(d) The certificate must deal with the
applicable conditions mentioned
under Section 65B(2) of the Evidence
Act; and(e) The certificate must be signed by a
person occupying a responsible
official position in relation to the
operation of the relevant device.16. It is further clarified that the person
need only to state in the certificate
that the same is to the best of his
knowledge and belief. Most
importantly, such a certificate must
accompany the electronic record like
computer printout, Compact Disc (CD),
Video Compact Disc (VCD), pen drive,22/12/2017 23:06:55 :::HCHP
62etc., pertaining to which a statement
is sought to be given in evidence,
when the same is produced in
evidence. All these safeguards are
taken to ensure the source and
authenticity, which are the two
hallmarks pertaining to electronic.
record sought to be used as evidence.
Electronic records being more
susceptible to tampering, alteration,
transposition, excision, etc. without
such safeguards, the whole trialbased on proof of electronic records
can lead to travesty of justice.17. Only if the electronic record is duly
produced in terms of Section 65B of
the Evidence Act, the question wouldarise as to the genuineness thereof
and in that situation, resort can be
made to Section 45A opinion of
r examiner of electronic evidence.18. The Evidence Act does not
contemplate or permit the proof of anelectronic record by oral evidence if
requirements under Section 65B of the
Evidence Act are not complied with,
as the law now stands in India.19. It is relevant to note that Section 69
of the Police and Criminal Evidence
Act, 1984 (PACE) dealing with
evidence on computer records in theUnited Kingdom was repealed by
Section 60 of the Youth Justice and
Criminal Evidence Act, 1999.Computer evidence hence must follow
the common law rule, where a
presumption exists that the computer
producing the evidential output wasrecording properly at the material
time. The presumption can be rebutted
if evidence to the contrary is adduced.
In the United States of America, under
Federal Rule of Evidence, reliability of
records normally go to the weight of
evidence and not to admissibility.20. Proof of electronic record is a special
provision introduced by the IT Act
amending various provisions under
the Evidence Act. The very caption of22/12/2017 23:06:55 :::HCHP
63Section 65A of the Evidence Act, read
with Sections 59 and 65B is sufficient
to hold that the special provisions on
evidence relating to electronic record
shall be governed by the procedure
prescribed under Section 65B of the
Evidence Act. That is a complete code.
in itself. Being a special law, the
general law under Sections 63 and 65
has to yield.21. In State (NCT of Delhi) v. Navjot
Sandhu alias Afsan Guru., 2005 11
SCC 600], a two-Judge Bench of this
Court had an occasion to consider an
issue on production of electronic
record as evidence. While considering
the printouts of the computerizedrecords of the calls pertaining to the
cellphones, it was held at Paragraph-
150 as follows:"150. According to Section 63,
secondary evidence means and
r includes, among other things,
"copies made from the originalby mechanical processes which
in themselves insure the
accuracy of the copy, and
copies compared with such
copies". Section 65 enablessecondary evidence of the
contents of a document to be
adduced if the original is of
such a nature as not to beeasily movable. It is not in
dispute that the information
contained in the call records isstored in huge servers which
cannot be easily moved and
produced in the court. That is
what the High Court has alsoobserved at para 276. Hence,
printouts taken from the
computers/servers by
mechanical process and
certified by a responsible
official of the service-providing
company can be led in evidence
through a witness who can
identify the signatures of the
certifying officer or otherwise
speak of the facts based on his
personal knowledge.22/12/2017 23:06:55 :::HCHP
64Irrespective of the compliance
with the requirements of
Section 65-B, which is a
provision dealing with
admissibility of electronic
records, there is no bar to
adducing secondary evidence.
under the other provisions of
the Evidence Act, namely,
Sections 63 and 65. It may be
that the certificate containing
the details in sub- section (4) ofSection 65-B is not filed in the
instant case, but that does not
mean that secondary evidence
cannot be given even if the law
permits such evidence to be
given in the circumstancesmentioned in the relevant
provisions, namely, Sections 63
and 65."It may be seen that it was a case
r where a responsible official had duly
certified the document at the time ofproduction itself. The signatures in
the certificate were also identified.
That is apparently in compliance with
the procedure prescribed under
Section 65B of the Evidence Act.However, it was held that irrespective
of the compliance with the
requirements of Section 65B, which is
a special provision dealing withadmissibility of the electronic record,
there is no bar in adducing secondary
evidence, under Sections 63 and 65,of an electronic record."
40. After discussing the prosecution evidence and also the
law relied upon by the learned Senior Counsel for the
appellant/accused, we are of considered view that present case
hinges on circumstantial evidence. The prosecution, in order to
establish and prove the guilt of the accused, has relied upon the:
22/12/2017 23:06:55 :::HCHP
651. Circumstantial evidence;
2. Relevance of the statement of the accused under
Section 27 of The Indian Evidence Act, 1872;3. Motive cannot be a ground to reject the case of the
prosecution;.
1. Circumstantial evidence:
1. Praful Sudhakar Parab vs. State of Maharashtra,
(2016) 12 SCC 783,2. Anthony D'Souza others vs. State of Karnataka,
(2003) 1 SCC 259,3. Dharam Deo Yadav vs. State of Uttar Pradesh, (2014)
5 SCC 509,4. Pawan Kumar alias Monu Mittal vs. State of Uttar
Pradesh another, (2015) 7 SCC 148.
1. In Praul Sudhakar Parab vs. State of Maharashtra, (2016) 12
SCC 783, the Hon'ble Supreme Court has held as under:
13. The present is a case where no eye
witness is produced. The statements
wee made before police by the accused
in the morning of 09.12.1996 whereinthe accused is stated to have
confessed murder cannot be said to be
a valid confession as has rightly been
held by the learned Sessions Judge.The prosecution has based its case on
circumstantial evidence. Whether
conviction based on circumstantialevidence can be upheld and whether
there was sufficient evidence to
support the conviction are thequestions to be answered in this
appeal. This Court on several
occasions has considered the law
regarding basing of conviction by the
Court on a circumstantial evidence. It
is useful to refer to the judgment of
the Apex Court ikn Gambhir v. State
of Maharashtra, (1982) 2 SCC 351,
wherein the Apex Court laid down
that circumstances from which an
inference of guilt is sought to be
drawn, must be cogently and firmly
established.22/12/2017 23:06:55 :::HCHP
6614. Referring to the above judgment of
Gambhir v. State of Maharashtra,
principles were again reiterated by
the Supreme Court in K.V. Chacko v.
State of Kerala, (2001) 9 SCC 277,
wherein following was laid down in.
para 5:
"5. The law regarding basing a
conviction by the courts on
circumstantial evidence is well
settled. When a case rests uponthe circumstantial evidence,
such evidence must satisfy
three tests:1. the circumstances
from which an inference
of guilt is sought to bedrawn, must be cogently
and firmly established;2. those circumstances
should be of a definite
tendency unerringly
r pointing towards guilt of
the accused;3. the circumstances,
taken cumulatively,
should form a chai9n so
complete that there is no
escape from theconclusion that within
all human probability the
crime was committed by
the accused and noneelse. The circumstantial
evidence in order to
sustain conviction mustbe complete and
incapable of explanation
of any other hypothesis
than that of the guilt ofthe accused. The
circumstantial evidence
should not only be
consistent with the guilt
of the accused but should
be inconsistent with his
innocence."2. In Anthony D'Souza others vs. State of Karnataka, (2003) 1
SCC 259, the Hon'ble Supreme Court has held as under:
22/12/2017 23:06:55 :::HCHP
67"15. In Swapan Patra v. State of West
Bengal, (1999) 9 SCC 242, this Court
said that in a case of circumstantial
evidence when the accused offers an.
explanation and that explanation is
found not to be true then the sameoffers an additional link in the chain
of circumstances to complete the
chain. The same principle has been
followed and reiterated in State ofMaharashtra v. Suresh, (2000) 1 SCC
471, where it has been said that a
false answer offered by the accused
when his attention was drawn to a
circumstance, renders thatcircumstance capable of inculpating
him. This Court further pointed out
that in such a situation false answer
can also be counted as providing a
missing link for completing the chain.
The aforesaid principle has been
r again followed and reiterated inKuldeep Singh and others v. State of
Rajasthan, 2000 (5) JT (SC) 161.16. In our view, therefore, the chain of
circumstances as recited above
coupled with the law laid down bythis Court unerringly lead to one
conclusion and that is the guilt of the
accused."3. In Dharam Deo Yadav vs. State of Uttar Pradesh, (2014) 5 SCC
509, the Hon'ble Supreme Court has held as under:
15. We have no eye-witness version
in the instant case and the entire case
rests upon the circumstantial
evidence. Circumstantial evidence is
evidence of relevant facts from which,
one can, by process of reasoning, infer
about the existence of facts in issue or
factum probandum. In Hanumant, son
of Govind Nargundkar v. State of
Madhya Pradesh, 1952 AIR(SC) 343,
this Court held as follows:22/12/2017 23:06:55 :::HCHP
68"10. ...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 hypotheses of the guilt of the
accused. Again, the circumstances
would be of a conclusive nature and
tendency and they should be such asto exclude 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 mustbe such as to show that within all
human probability the act must have
been done by the accused."Each and every incriminating
r circumstance must be clearlyestablished by reliable and clinching
evidence and the circumstances so
proved must form a chain of events
from which the only irresistible
conclusion about the guilt of the
accused can be safely drawn and noother hypothesis against the guilt is
possible. Even when there is no eye-
witness to support the criminal
charge, but prosecution has been ableto establish the chain of
circumstances which is complete
leading to inference of guilt ofaccused and circumstances taken
collectively are incapable of
explanation on any reasonable
hypothesis save of guilt sought to beproved, accused may be convicted on
the basis of such circumstantial
evidence."4. In Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh
ano0ther, (2015) 7 SCC 148, the Hon'ble Supreme Court has held as
under:
22/12/2017 23:06:55 :::HCHP
69"36. In cases where the direct evidence is
scarce, the burden of proving the case
of prosecution is bestowed upon
motive and circumstantial evidence. It
is the chain of events that acquires
prime importance in such cases.
Before analysing factual aspects it.
may be stated that for a crime to be
proved it is not necessary that the
crime must be seen to have been
committed and must, in all
circumstances be proved by directocular evidence by examining before
the court those persons who had seen
its commission. The offence can be
proved by circumstantial evidence
also. The principal fact or factum
probandum may be proved indirectlyby means of certain inferences drawn
from factum probans, that is, the
evidentiary facts. To put it differently,
circumstantial evidence is not direct
to the point in issue but consists of
r evidence of various other facts which
are so closely associated with the factin issue that taken together they form
a chain of circumstances from which
the existence of the principal fact can
be legally inferred or presumed [See:
Bodhraj Vs. State of JK, 2002 8 SCC45. In the case on hand, the evidence
adduced by the prosecution as
discussed above, clearly proves the
chain of events connecting theaccused to the guilt of the commission
of the offence. The entire evidence
brought on record by the prosecution,is not only convincing, but is also
trustworthy. Even if the confession of
accused Nos. 4 and 7 made before PW
1 and PW 2, which is barred bySection 25 of the Evidence Act, is not
taken into account, the other evidence
on record adduced by the prosecution,
is sufficient to hold the accused guilty
of the offence.37. This Court has been consistently
taking the view that where a case
rests squarely on circumstantial
evidence, the inference of guilt can be
justified only when all the
incriminating facts and22/12/2017 23:06:55 :::HCHP
70circumstances are found to be
incompatible with the innocence of
the accused or the guilt of any other
person. In the present case, on
scrutiny of evidence on record, we are
convinced that the prosecution had
established beyond reasonable doubt.
the complete chain of events which
points at the guilt of the accused."
All the judgments, as cited above, enunciate the law qua
circumstantial evidence and present case is no doubt wholly based
on circumstantial evidence. The law, qua circumstantial evidence,
deducible from the above judgments can be summarized as where a
case rests upon circumstantial evidence, such evidence in order to
base conviction, must be complete and incapable of explanation of
any other hypothesis than that of guilt of the accused and such
evidence should not only be consistent with the guilt of the accused
but should be inconsistent with his innocence.
41. Now the evidence of the present case is to be analyzed on
the above parameters of circumstantial evidence. The deceased was
having intimate relations with the accused and both of them lived
together at Babina Cantt District Jhansi, and the father of the
accused brought the deceased back and handed her over to PW-17,
Smt. Meera Devi (mother of the deceased). The deceased was using
the telephone of Shri Malkiat Singh (PW-5) and it has come on
record that the deceased was having relations with PW-5. It has
come in the investigation and also in the statement of PW-22, HC
22/12/2017 23:06:55 :::HCHP
71Ashok Kumar, that many calls were exchanged between cell No.
98176-45093 and 98168-46315 and PW-5, Shri Malkiat Singh,
deposed that his telephone No. is 98168-46315. He has also
.
admitted that he used to talk with the deceased, but thereafter the
investigation is silent. Whether PW-5 has any role with respect to
elopement of the deceased or he has any connection with it, nothing
has come on record in the investigation of the police, which also
makes the prosecution case suspicious. Further it has not come on
record that the telephone which the accused was using, was in
whose name, this also castes a doubt on the prosecution story. It
has come in the prosecution evidence that PW-5, Shri Malkiat Singh,
was also having relations with the deceased. PW-7, Shri Rattan Lal
Thakur, Naib Tehsildar, deposed that in his presence the digging
work was started and the same continued till 01:00 a.m. and few
skeleton bones were recovered and put in a box. Due to darkness,
the digging was stopped and it was decided to resume the work in
the morning. They left the spot and guards were deputed there. On
the subsequent morning, when he reached the spot, around 09:45
a.m., as decided, the police had already completed the digging work
and recovered the skeleton remains of a human body. As per the
prosecution story, the police recovered the skeleton of the deceased
at the instance of the accused, therefore, witness to the recovery of
22/12/2017 23:06:55 :::HCHP
72skeleton is of utmost help to prove the vital link in the chain of the
circumstances, but statement of PW-7, Shri Rattan Lal Thakur, Naib
Tehsildar, does not provide that link. Especially when it has not
.
been established that the bones so recovered by the police were of
the deceased, so the DNA report, Ex. PX, is also of no help to the
prosecution. Thus, the above circumstances weaken the prosecution
case.
42. The only incriminating substance against the accused is
that he might have killed the deceased when she went to meet him at
Awah Devi Temple, but there is no material on record to demonstrate
that the accused met the deceased on that day. The evidence
reflects that the deceased was major on the day of occurrence. PW-
17, Smt. Meera Devi (mother of the deceased) in her statement has
deposed that in March, 2011, the accused took the deceased to
Gwalior (M.P.), where he was serving in Army. Subsequently, father
of the accused, Shri Ramesh Thakur (PW-2), brought the deceased
back. PW-17 entered into a compromise with PW-2, which is Ex.
PW-16/A, and she took `25,000/- for not reporting the matter to the
police. The accused in his disclosure statement made to the police
has stated that his parents were not interested in his marriage with
the deceased and then also PW-17 remained silent. As per the
prosecution case, when the deceased went to Awah Devi Temple to
22/12/2017 23:06:55 :::HCHP
73meet the accused, PW-17, Smt Meera Devi (mother of the deceased)
did not object and she remained mum. In fact, there was no
occasion for PW-17 and PW-18, Shri Sandeep Thakur (brother of the
.
deceased) to wait for 3-4 days before lodging the missing report. So,
the above glaring loopholes break the consistency in the prosecution
story. There is no evidence on record that when the deceased went
missing, she was seen with the accused or she met him at Awah
Devi Temple. In such circumstances, it is just a presumption,
getting its birth from the background facts of the prosecution case.
The accused had intimate relations with the deceased and he took
the prosecutrix to Jhansi, but only because he had intimate relation
with the deceased it cannot by any stretch of imagination presumed
that he had killed her. It is settled position of law that presumption,
howsoever strong it be, cannot supplant and substitute for proof.
So, merely the gravity of presumption, which is also not so high,
cannot force this Court to uphold his conviction. Consequently, we
are convinced that the circumstances in the present case do not
form a complete chain and the links of it are missing, which is
apparent from the statements of the key prosecution witnesses.
43. Further the handwriting of the deceased was handed
over to the police by the brother of the deceased after many days
stating that it was recovered from below the pillow of the deceased,
22/12/2017 23:06:55 :::HCHP
74but there is no explanation why it was not handed over earlier or
why it was not recovered earlier. This also creates a doubt with
respect to the prosecution story and improvements made thereafter
.
by the prosecution witnesses. In a case resting completely on the
circumstantial evidence chain of circumstances must be so complete
that they lead only to one conclusion, that is, the guilt of the
accused. Having regard to above analysis of the circumstances of
the present case, the probability of accused's committing the murder
of the deceased seems highly improbable and thus the accused
cannot be held guilt.
44. The law, as cited and discussed above, on the
circumstantial evidence is lucid and also applicable in the present
case, but as the circumstances in the present case do not form a
complete chain, the accused cannot be held guilty.
2. Statement under Section 27:
1. Pawan Kumar alias Monu Mittal vs. State of Uttar
Pradesh another, (2015) 7 SCC 148,
1. State of Maharashtra vs. Suresh, (2000) 1 SCC 471;
3. A.N. Venkatesh another vs. State of Karnataka,
(2005) 7 SCC 714.
44. The prosecution is trying to get aid of the Section 27
(supra) in order to prove that at the instance of accused, the bones of
the deceased were recovered and thus the chain of circumstantial
evidence is complete. Before discussing the law laid down by Hon'ble
22/12/2017 23:06:55 :::HCHP
75Supreme Court qua Section 27 of The Indian Evidence Act, 1872, it
is apt to extract Section 27, in extenso, which is as under:
"27. How much of information received
from accused may be proved.- Provided.
that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any
offence, in the custody of a police officer,
so much of such information, whether itamounts to a confession or not, as relates
distinctly to the fact thereby discovered,
may be proved."1. In Pawan Kumar alias Monu Mittal vs. State of Uttar Pradesh
another, (2015) 7 SCC 148, the Hon'ble Supreme Court has held
as under: r
"29. It is settled principle of law
that statements made by an accusedbefore police official which amount to
confession is barred under Section 25
of the Indian Evidence Act. This
prohibition is, however, lifted to some
extent by Section 27 which readsthus:
"27. How much of information
received from accused may be proved.-Provided that, when any fact is
deposed to as discovered in
consequence of information receivedfrom a person accused of any offence,
in the custody of a police officer, so
much of such information, whether it
amounts to a confession or not, asrelates distinctly to the fact thereby
discovered, may be proved."In the light of Section 27 of the
Evidence Act, whatever information
given by the accused in consequence
of which a fact is discovered only
would be admissible in the evidence,
whether such information amounts to
confession or not. The basic idea
embedded under Section 27 of the
Evidence Act is the doctrine of22/12/2017 23:06:55 :::HCHP
76confirmation by subsequent events.
The doctrine is founded on the
principle that if any fact is discovered
in a search made on the strength of
any information obtained from a
prisoner, such a discovery is a
guarantee that the information.
supplied by the prisoner is true. The
information might be confessional or
non-inculpatory in nature, but if it
results in discovery of a fact it
becomes a reliable information [See:State of Maharashtra Vs. Damu, 2000
6 SCC 269.30. The "fact discovered" as envisaged
under Section 27 of the Evidence Act
embraces the place from which theobject was produced, the knowledge of
the accused as to it, but the
information given must relate
r distinctly to that effect."2. In State of Maharashtra vs. Suresh, (2000) 1 SCC 471, the
Hon'ble Supreme Court has held as under:
"24. One of the formidably
incriminating circumstances againstthe accused was that the dead body
was recovered as pointed out by the
respondent. The statement of the
respondent which led to the recoveryof the dead body has been
incorporated in Ext. 79 and the
admissible portion of it reads thus:"Her dead body is kept concealed in
the field. I will take it out and
produce the same; come with me."25. But unfortunately the Division
Bench of the High Court did not rely
on the above circumstance on a very
fragile reasoning. The first limb of
that reasoning was based on a
mistake committed by P.W. 3 Sayyad
Niyamat in his evidence when he said
that he saw the dead body of the child
on 23-12-1995. Much strain is not
required in holding that what P.W. 3
said should have been understood as22/12/2017 23:06:55 :::HCHP
7724-12-1995. The second limb of the
reasoning is that two other
possibilities could not have been ruled
out, of which one is that respondent
would have seen someone else placing
the dead body at that spot, and the
second is that respondent would have.
been told by somebody else that the
dead body was placed there.
26. We too countenance three
possibilities when an accused pointsout the place where a dead body or an
incriminating material was concealed
without stating that it was concealed
by himself. One is that he himself
would have concealed it. Second is
that he would have seen somebodyelse concealing it. And the third is
that he would have been told by
another person that it was concealed
there. But if the accused declines to
tell the Criminal Court that his
r knowledge about the concealment was
on account of one of the last twopossibilities the Criminal Court can
presume that it was concealed by the
accused himself. This is because
accused is the only person who can
offer the explanation as to how elsehe came to know of such concealment
and if he chooses to refrain from
telling the Court as to how else he
came to know of it, the presumption isa well justified course to be adopted
by the Criminal Court that the
concealment was made by himself.Such an interpretation is not
inconsistent with the principle
embodied in section 27 of the
Evidence Act."3. In A.N. Venkatesh another vs. State of Karnataka,(2005) 7
SCC 714, the Hon'ble Supreme Court has held as under:
"9. By virtue of Section 8 of the
Evidence act, the conduct of the
accused person is relevant, if such
conduct influences or is influenced by
any fact in issue or relevant fact. The
evidence of the circumstance,22/12/2017 23:06:55 :::HCHP
78simpliciter, that the accused pointed
out to the police officer, the place
where the dead body of the kidnapped
boy was found and on their pointing
out the body was exhumed, would be
admissible as conduct under section 8
irrespective of the fact whether the.
statement made by the accused
contemporaneously with or
antecedent to such conduct falls
within the purview of Section 27 or
not as held by this Court in PrakashChand v. State. Even if we hold that
the disclosure statement made by the
accused appellants (exhibits P14 and
P15) is not admissible under Section
27 of the Evidence act, still it is
relevant under Section 8. The evidenceof the investigating officer and pws
1,2,7 and PW4 the spot mahazar
witness that the accused had taken
them to the spot and pointed out the
place where the dead body was
r buried, is an admissible piece of
evidence under Section 8 as theconduct of the accused. Presence of A-
1 and A-2 at a place where ransom
demand was to be fulfilled and their
action of fleeing on spotting the police
party is a relevant circumstance andare admissible under section 8 of the
Evidence Act."45. As in the case in hand, circumstances do not establish
towards the guilt of the guilt and they only raise a subtle
presumption that accused might have killed the deceased. It is
cardinal principle of criminal prudence that on the basis of
presumptions one cannot be held guilty. Further, as per the
prosecution story, immediately after the arrest of the accused, he
made a disclosure statement under Section 27 of The Indian
Evidence Act, 1872, and consequent thereto recovery was effected. It
is not proved that what led the accused to make the disclosure
22/12/2017 23:06:55 :::HCHP
79statement under Section 27 of the Act. Further there were many
independent witnesses available and non-joining of any independent
witness while recording the disclosure statement under Section 27 of
.
the Act also required to be considered in favour of the accused,
especially when other evidence, which has come on record, does not
establish the guilt of the accused. No doubt, Section 27 of the Indian
Evidence Act, 1872, (supra) has a specific purpose, but here
applicability of Section 25 of the Act is more plausible, which
provides as under:
"25. Confession to police officer not to be
proved.- No confession made to a police
r officer, shall be proved as against aperson accused of any offence."
Thus, the judgments cited above relating to Section 27 of the Indian
Evidence Act, 1872, are not applicable in the case in hand.
3. Motive cannot be ground to reject the case of the
prosecution:1. Praful Sudhakar Parab vs. State of Maharashtra,
(2016) 12 SCC 783;2. Ravinder Kumar another vs. State of Punjab,
(2001) 7 SCC 690;3. State of Himachal Pradesh vs. Jeet Singh, (1999) 4
SCC 370;
4. State of Gujarat vs. Anirudhsing another, (1997)
6 SCC 514.1. In Praful Sudhakar Parab vs. State of Maharashtra, (2016) 12
SCC 783, the Hon'ble Supreme Court has held as under:
"26. Motive for committing a crime
22/12/2017 23:06:55 :::HCHP
80is something which is hidden in the
mind of accused and it has been held
by this Court that it is an impossible
task for the prosecution to prove what
precisely have impelled the murderer
to kill a particular person. This Court
in Ravinder Kumar and another vs.
State Of Punjab, 2001 7 SCC 690, has
laid down following in paragraph 18:
"18........It is generally an impossible task
for the prosecution to prove whatprecisely would have impelled the
murderers to kill a particular person.
All that prosecution in many cases
could point to is the possible mental
element which could have been the
cause for the murder. In thisconnection we deem it useful to refer
to the observations of this Court in
State of Himachal Pradesh vs. Jeet
r Singh, 1999 4 SCC 370:"33. No doubt it is a sound principle
to remember that every criminal actwas done with a motive but its
corollary is not that no criminal
offence would have been committed if
the prosecution has failed to prove the
precise motive of the accused tocommit it. When the prosecution
succeeded in showing the possibility
of some ire for the accused towards
the victim, the inability to further puton record the manner in which such
ire would have swelled up in the mind
of the offender to such a degree as toimpel him to commit the offence
cannot be construed as a fatal
weakness of the prosecution. It is
almost an impossibility for theprosecution to unravel the full
dimension of the mental disposition of
an offender towards the person whom
he offended.27. Further in Paramjeet Singh Vs.
State of Uttarakhand, 2010 10 SCC
439, this Court held that if motive is
proved that would supply a link in the
chain of circumstantial evidence but
the absence thereof cannot be a
ground to reject the prosecution case.22/12/2017 23:06:55 :::HCHP
81Following was stated in paragraph
54:"So far as the issue of motive is
concerned, the case is squarely
covered by the judgment of this court
in Suresh Chandra Bahri. Therefore,
it does not require any further.
elaborate discussion. More so, if
motive is proved that would supply a
link in the chain of circumstantial
evidence but the absence thereof
cannot be a ground to reject theprosecution case. (Vide: State of
Gujarat v. Anirudhsing )"(emphasis in original)
28. The High Court while
considering the motive has madefollowing observations at page 46:
"70. Although prosecution is not
very certain about the motive, upon
taking into consideration the evidence
r of PW-4 and PW-6, a faint probability
is created, regarding intentions of theaccused to lay hands on the cash
which could have been in possession
of the victim, as against the initial
story that the accused was enraged
against the victim, because the victimused to tease him on the point of his
marriage with a bar girl Helen
Fernandes. Motive is a mental state,
which is always locked in the innercompartment of the brain of the
accused and inability of the
prosecution to establish the motiveneed not necessarily cause entire
failure of prosecution."We fully endorse the above view taken
by the High Court and do not find any
substance in the above ground."2. In Ravinder Kumar another vs. State of Punjab, (2001) 7
SCC 690, the Hon'ble Supreme Court has held as under:
"18. The third contention is that the
motive alleged by the prosecution was
not established and hence the area22/12/2017 23:06:55 :::HCHP
82remains gray as to what would have
impelled them to liquidate the broker.
No doubt it is the allegation of the
prosecution that appellants owed a
sum of Rs. one lakh to the deceased
and it might not have been possible
for the prosecution to prove that.
aspect to the hilt. Nonetheless some
materials were produced for showing
that there were transactions between
the appellants and the deceased and
that they had some account to besettled. Only thus far could be
established but not further. It is
generally an impossible task for the
prosecution to prove what precisely
would have impelled the murderers to
kill a particular person. All thatprosecution in many cases could point
to is the possible mental element
which could have been the cause of
the murder. In this connection we
deem it useful to refer to the
r observations of this Court in State of
Himachal Pradesh v. Jeet Singh,(1999) 4 SCC 370 : (Para 33 of AIR, Cri
LJ):"33. No doubt it is a sound principle
to remember that every criminal act
was done with a motive but itscorollary is not that no criminal
offence would have been committed it
the prosecution has failed to prove the
precise motive of the accused tocommit it. When the prosecution
succeeded in showing the possibility
of some ire for the accused towardsthe victim, the inability to further put
on' record the manner in which such
ire would have swelled up in the mind
of the offender to such a degree as toimpel him to commit the offence
cannot be construed as a fatal
weakness of the prosecution. It is
almost an impossibility for the
prosecution to unravel the full
dimension of the mental disposition of
an offender towards the person whom
he offended.""3. In State of Himachal Pradesh vs. Jeet Singh, (1999) 4 SCC
22/12/2017 23:06:55 :::HCHP
83370, the Hon'ble Supreme Court has held as under:
"29. The High Court observed that the
accused had no good motive to
liquidate his young wife. This is what
the learned Judges of the High Court.
have stated on that aspect:
"Although it is not always
necessary for the prosecution to prove
motive in a criminal trial, however,
this is one of such cases where motive
is essential in case the prosecutionwants to succeed in its endeavours to
prove the case against the accused.
But, we are not convinced with this
kind of motive. These factors,
narrated by the prosecution, are tootrivial to be taken note of to establish
it. They are thoroughly insignificant
and do not, in any way, indicate that
they could influence the accused to
the extent that he would take the
extreme step of killing his wife."33. No doubt it is a sound principle to
remember that every criminal act was
done with a motive but its corollary is
not that no criminal offence would
have been committed if prosecution
has failed to prove the precise motiveof the accused to commit it. When the
prosecution succeeded in showing the
possibility of some ire for the accused
towards the victim the inability tofurther put on record the manner in
which such ire would have swelled upin the mind of the offender to such a
degree as to impel him to commit the
offence cannot be construed as a fatal
weakness of the prosecution. It isalmost an impossibility for the
prosecution to unravel the full
dimension of the mental disposition of
an offender towards the person whom
he offended. In this context we may
extract the observations made by a
two- Judge Bench of this Court (Dr.
A.S. Anand, J. - as the learned Chief
Justice then was and Thomas, J.) in
Nathuni Yadav v. State of Bihar,
(1998) 9 SCC 238 : (1997 AIR SCW
1158):22/12/2017 23:06:55 :::HCHP
84"17. Motive for doing a criminal act
is generally a difficult area for
prosecution. One cannot normally see
into the mind of another. Motive is the
emotion which impels a man to do a
particular act. Such impelling cause.
need not necessarily be proportionally
grave to do grave crimes. Many a
murders have been committed without
any known or prominent motive. It is
quite possible that the aforesaidimpelling factor would remain
undiscoverable. Lord Chief Justice
Champbell struck a note of caution in
R. v. Palmer (Shorthand Report at p.
308 CCC MAY 1856) thus:'But if there be any motive
which can be assigned, I am bound to
tell you that the adequacy of that
motive is of little importance. We
know, from experience of criminal
r Courts that atrocious crimes of this
sort have been committed from veryslight motives; not merely from malice
and revenge, but to gain a small
pecuniary advantage, and to drive off
for a time pressing difficulties.'Though, it is a sound
proposition that every criminal act is
done with a motive, it is unsound to
suggest that no such criminal act canbe presumed unless motive is proved.
After all, motive is a psychological
phenomenon. Mere fact thatprosecution failed to translate that
mental disposition of the accused into
evidence does not mean that no such
mental condition existed in the mindof the assailant.""
46. In State of Gujarat vs. Anirudhsing another, (1997) 6 SCC
514, the Hon'ble Supreme Court has held as under:
"46. It is then contended by Shri
Sushil Kumar that Accused 1 had no
motive and the prosecution has failed
to0 prove it. We find no force in the
contention. The motive gets locked in22/12/2017 23:06:55 :::HCHP
85the mind of the makers and it is
difficult to fathom it. The evidence of
Acharya, PA to the deceased, who too
turned hostile to the prosecution
speaks of motive. Equally, others
have spoken but their evidence is not
on record. If motive is proved that.
would supply a chain of links but
absence thereof is not a ground to
reject the prosecution case. So we
reject the contention of the learned
counsel in that behalf too."After discussing the judgments, as cited by the prosecution on the
point of motive, the facts of the present case qua motive of the
accused have been analyzed. The motive of the accused for
committing the crime, as attributed by the prosecution, is that he
did not want to marry the deceased, so he killed her. Apparently,
the evidence on record speaks that there was love affair between the
accused and the deceased and only the father of the accused was
unwilling and adamant to their marriage. This fact is further
fortified by the statement of brother of the deceased, who while
appearing in the witness box, has deposed that when he telephoned
the father of the accused, he stated that he has done whatever he
wanted to do with the deceased and the complainant party can do
whatever they like. This shows that the motive behind killing the
deceased, as per the prosecution and the mother of the deceased,
was that the accused and his father were adamant to marry with the
deceased, but the other circumstances show that it is only the father
of the accused, who was adamant. In these circumstances, the
22/12/2017 23:06:55 :::HCHP
86motive, as attributed by the prosecution, cannot be taken as a
reason for the accused to kill the deceased, as this could have been
the motive of the father of the deceased, however, no case is there
.
against the father of the deceased.
47. Another story with regard to motive, as per the
prosecution, is that PW-5, Shri Malkiat Singh, was having relations
with the deceased and when the accused came to know about their
relationship, he killed the deceased. PW-5, Shri Malkiat Singh, while
appearing in the witness-box, has deposed that he was regularly
talking with the deceased. Therefore, keeping in view the deposition,
so made by PW-5, it can be deduced that second theory qua motive,
as portrayed by the prosecution, is only an inference coming out
from the testimony of PW-5 that he was regularly talking with the
deceased, but he did not want to marry her, as she was in love with
the accused. In the absence of any other evidence on record, it is
difficult to conclude that the motive of killing the deceased by the
accused was that he was offended after knowing that the deceased
has relationship with PW-5, but there is no evidence with respect to
the fact that PW-5, Shri Malkiat Singh, was meeting the deceased in
presence of the accused or the accused came to know about the
relationship of PW-5 with the deceased, thus this motive is also not
proved by the prosecution.
22/12/2017 23:06:55 :::HCHP
8748. The learned Assistant Advocate General has argued that
even if motive has not been proved, the same is of no consequence as
the circumstantial evidence proves the guilt of the accused. True it
.
is that motive is not required to be proved if the circumstantial
evidence proves the guilt of the accused, however, in the present
case circumstantial evidence also fails to bring home the guilt of the
accused. So the judgments, as citied by the learned Assistant
Advocate General, are of no avail, hence the same are not applicable
to the facts of the present case.
49. In view of the nature of the evidence, which has come in
this case, which stands exhaustively discussed hereinabove, and
testing the same on the anvil of law relating to circumstantial
evidence, the only probable conclusion is that the prosecution has
failed to prove its case beyond the shadow of reasonable doubt. In
fact, whole prosecution story is based on suspicion and
circumstantial evidence, but it is cardinal principle of criminal
jurisprudence that suspicion, howsoever strong, cannot supplant
proof. In the present case the circumstances, which have emerged,
do not make a complete chain, which, in the present case, is
required to clearly and unambiguously prove the guilt of the
accused. Therefore, the prosecution has failed to prove the guilt of
the accused beyond the shadow of reasonable doubt. Hence, the
22/12/2017 23:06:55 :::HCHP
88impugned judgment, convicting and sentencing the accused, passed
by the learned Trial Curt is set aside and the accused is acquitted.
50. The Registry is directed to issue release warrants of the
.
accused and the accused be released forthwith
51. In view of the above, the appeal, so also pending
application(s), if any, stand(s) disposed of.
(Tarlok Singh Chauhan)
Judge(Chander Bhusan Barowalia)
Judge
22nd December, 2017
(virender)22/12/2017 23:06:55 :::HCHP
