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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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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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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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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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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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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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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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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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) 15

Supreme 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 evidence

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consistent 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 case

rests 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 for

basing the conviction on
circumstantial evidence and unless

the prosecution evidence point
irresistible to the guilt of the
accused, it would not be sound and
safe to base the conviction of

accused 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: Lakhbir

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Singh 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 oral

statements 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 witness

would 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 and

affection for the deceased would
create a psychological hatred
against the supposed murderer and,
therefore, the court has to examine

such evidence with very great care
and caution. Even if the witnesses

were 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 person

and 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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150. It is well settled that the
prosecution must stand or fall on its
own legs and it cannot derive any
strength from the weakness of the
defence. This is trite law and no
decision has taken a contrary view.

.

What some cases have held is only
this: where various links in a chain

are in themselves complete than a
false plea or a false defence may be
called into aid only to lend

assurance to the Court. In other
words, before using the additional
link it must be proved that all the
links in the chain are complete and
do not suffer from any infirmity. It
is not the law that where is any

infirmity or lacuna in the
prosecution case, the same could be
cured or supplied by a false defence
or a plea which is not accepted by a
Court.

… … … … … …

158. It will be seen that this Court
while taking into account the

absence 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 the

light of what this Court said earlier,
viz., before a false explanation can

be 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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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 a

case. This aspect of the matter was
examined in Shankarlal’s case (AIR
1981 SC 765) (supra) where this

Court 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 false

plea 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 decision

and 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 an

incomplete chain of circumstances
and a circumstance which, after the

chain is complete, is added to it
merely to reinforce the conclusion of
the court. Where the prosecution is
unable to prove any of the essential

principles 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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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 common

roof, 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 deceased

was 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 that

the death of the deceased was of
homicidal one and not suicidal and
held “therefore suicidal is ruled
out.” We also very carefully went

through the evidence of the Medical
Officers and found that the
prosecution has convincingly

established that the death of the
deceased was due to forcible
administration of poison and

smothering. 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 marriage

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house 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 accused

persons but the prosecution cannot
be said to have established the guilt
of the accused decisively since the

suspicion 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 not

possible 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 the

accused committed the offence
of murder. It is an
unfortunate case where cold-
blooded murder has been
committed and it is difficult

to believe that no inmate of
the house had any hand in the

offence 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 appellant

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wants 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 of

the accused should have been
resented by the deceased and that
on that score the accused should

have 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-treated

the deceased, which observation we
have extracted above. Hence, we

hold 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 the

fact that the deceased did not
accompany her husband and in-laws
to attend the marriage celebrated in
the house of PW-1 and remained in

the scene house and that she has
been done away with on the

intervening night of 6th/7th
September, 1985. From this
circumstance, the Court will not be
justified in drawing any conclusion

that 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 this

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murder 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 of

the dead body is nothing but a
planted one so as to give a
misleading impression that the

deceased 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 whoever

might 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 any

of them should have done it. It is the
admitted case that the first accused

handed 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 that

the deceased had some grouse
against her parents and that the
accused were not responsible for her
death. The explanation given by

accused No. 1 in this written
statement is that by about the time

of the arrival of the police, one
Sathi Prasad Reddy handed over
these letters to him saying that he
(Reddy) found them near the place

where 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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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 establish

that 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 be

sufficient 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 by

this Court do not lead to any
decisive conclusion that either all
these accused or any of them
committed the murder of the

deceased, Vijaya punishable
under Section 302 read with Section
34 of I.P.C. or the offence of cruelty

within 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 take

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note 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 the

deceased were seen last alive
and when 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. It would be
difficult in some cases to
positively establish that the

deceased 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 accused

and the deceased were last
seen together, it would be
hazardous to come to a
conclusion of guilt in those
cases. In this case there is

positive evidence that the
deceased and the accused
were seen together by
witnesses PWs. 3 and 5, in

addition 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 in

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such 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 is

concerned.

15. Out of the circumstances
highlighted above really none is of
any significance. Learned Counsel
for the appellant-State highlighted

that 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 not

do 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 him

regarding his so called extra
judicial confession. To add to the
vulnerability, his statement is to the
effect that after about 11 days of

the incidence the extra judicial
confession was made. Strangely he

stated that he told the police after
three days of the incidence about
the extra judicial confession. It is
inconceivable that a person would

tell 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.

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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 relevant

to 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 such

evidence 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 United

States there are conflicting
decisions:

‘There have been
considerable uncertainty in

the minds of the Courts as to
the reliability of dogs in
identifying criminals and
much conflict of opinion on

the question of the
admissibility of their actions

in evidence. A survey of the
cases however, reveals that
most Courts in which the
question of the admissibility

of 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 guilty

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22

party, 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 cases

the life and liberty of a human being
should not be dependent on canine

inferences. 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 a

dramatic impact on the jury out of
proportion to its value. In R. v.
Montgomery,1866 NI 160 a police
constable observed men stealing

wire by the side of a railway line.
They ran away when he approached

them. 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 of

the 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 dog

22/12/2017 23:06:54 :::HCHP
23

was 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 a

species of hearsay but instead the
dog was described as “a tracking
instrument and the handler was

regarded 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 tracker

dog s evidence could be likened to
the type of evidence accepted from
scientific experts describing
chemical reactions, blood tests and
the actions of bacilli. The

comparison does not, however,
appear to be sound because the

behaviour of chemicals, blood
corpuscles and bacilli contains no
element of conscious volition or
deliberate choice. But Dogs are
intelligent animals with many

thought processes similar to the
thought processes of human beings
and wherever you have thought
processes there is always the risk of

error, deception and even self-
deception. For these reasons we are

of the opinion that in the present
state of scientific knowledge
evidence of dog tracking, even if
admissible, is not ordinarily of

much 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 the

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24

charges 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 strong

cannot 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 one

conclusion, 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

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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

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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.

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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

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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

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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 sacred

thread;

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

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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

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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

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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

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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 skeletal

remains, 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

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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,

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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

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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 gel

electrophoresis. The DNA did not show any
amplification of fifteen autosomal STRs

AmpF/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

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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 Bobde

v. 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 facts

established should be consistent only
with the hypothesis of the guilt of the

accused, that is to say, they should
not be explainable on any other
hypothesis except that the accused is
guilty. The Court further observed

that 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 been

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44

consistently 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 false

explanation 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 itself

that (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 situation

where 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 and

not otherwise. There is yet another
basic rule of criminal jurisprudence
that if two views are possible on the
evidence adduced in a case of

circumstantial evidence, one pointing
to the guilt of the accused and the
other to his innocence, the Court

should adopt the latter view
favourable to the accused. We have
reminded ourselves of these principles
with a view to ascertain as to whether

the 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

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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 disclosure

statement 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 fabricate

evidence, we are of the opinion that
the learned Sessions Judge was
perfectly justified in rejecting the
prosecution evidence relating to the

disclosure 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 to

the 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 was

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46

perfectly 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 reasonable

doubt. 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 is

on 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 of

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47

the 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 each

of 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 for

commission 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 to

commit 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.

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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 authorities

at 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 Serological

Report 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 has

dealt 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 Singh

was arrested only on 13-2-1992 as
such disclosure statement of 29-1-
1992 cannot be had – it is this
inconsistency which was noticed by

the High Court and Ram Singh, at
whose instance the ring was supposed
to have been recovered, stands

acquitted 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 able

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49

to 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’ account

rendering 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 on

the 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 to

scrutinise its evidence with a little bit
of caution and scrutiny so as to judge
their veracity. Admittedly all the
supposed eye-witnesses are relations

of the deceased. As such they fall
within a category of interested
witnesses. It is not the evidence ought

to 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 as

to 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 that

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50

the 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 to

be 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 it

appear 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 from

another source, there can be
no discovery again even if any
information relating thereto
is subsequently extracted
from the accused. A devise

sometimes adopted by the
police is to stage a scene and
take the accused to the place
where the things discovered

lay buried or hidden and
require him to make a search
for them at the spot indicated

to the accused, or sometimes
the articles are first produced
before the accused and
thereafter statements

purporting 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.”

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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 from

Sarkar 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 with

certain 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 accused

persons 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 evidence

apart from the omni present Budh
Ram and Dholu Ram, who however are
totally interested witnesses. While it
is true that legitimacy of interested

witnesses 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 that

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52

Manphool 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 by

reason 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 to

equal 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 the

evidence 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 his

father 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 doubt

or a certainty – jurisprudentially a
doubt would be enough : when such a
suggestion has been made prosecution

has to bring on record the availability
of the deceased during those 2/3 days
with some independent evidence.
Rejection of the defence case only by

reason 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

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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 Doctor

who 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, but

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54

PW-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 the

fracture 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 place

reliance 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 solitary

circumstance 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 showing

complicity of the accused persons
with the crime and the chain should
be complete. In view of the foreoging
discussion, we are of the view that

prosecution has failed to prove its
case beyond reasonable doubt and the
High Court was not justified in

upholding 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

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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 to

abduct 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. His

case 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 basic

principle 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 the

offence 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

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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 major

amendment 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 are

relevant.- Oral admissions as to the
contents of electronic records are not
relevant, unless the genuineness of
the electronic record produced is in

question.”

9. Section 45A of the Evidence Act reads

as follows:

                             "45A.    Opinion    of   Examiner      of

                             Electronic    Evidence.-When     in     a

                             proceeding, 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

                           57
              Evidence 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 is
              printed 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 satisfied
              in 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 any
              contents 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     used
              regularly     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 said
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                          58
              activities;

        (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 is
              derived 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    activities
              regularly 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 this
              section 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     be
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                          59
              appropriate 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 be
              evidence 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  any
              appropriate 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 purposes
              of those activities by a computer

              operated otherwise than in the course

              of those activities, that information, if

              duly supplied to that computer, shall
              be 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  any
              appropriate 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
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                          60
              Reasons 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 the
              issue 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 59
              and 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 information
              contained in an electronic record

              which is printed on a paper, stored,

              recorded or copied in optical or

              magnetic media produced by a
              computer shall be deemed to be a

              document only if the conditions

              mentioned under sub- Section (2) are
              satisfied, without further proof or

              production of the original. The very

              admissibility of such a document, i.e.,

              electronic record which is called as
              computer 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 that
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                             61
                period 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, the
                break 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 fed
                into 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 permissible
                provided 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

                          62
              etc., 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 trial
              based 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 would
              arise 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 an
              electronic 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 the
              United 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 was
              recording 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 of
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                         63
              Section 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 computerized
              records 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 original
                  by mechanical processes which

                  in    themselves    insure    the

                  accuracy of the copy, and

                  copies compared with such

                  copies". Section 65 enables
                  secondary evidence of the

                  contents of a document to be

                  adduced if the original is of

                  such a nature as not to be
                  easily movable. It is not in

                  dispute that the information

                  contained in the call records is
                  stored in huge servers which

                  cannot be easily moved and

                  produced in the court. That is

                  what the High Court has also
                  observed 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.

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                                          64
                                 Irrespective 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) of
                                 Section 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 circumstances
                                 mentioned 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 of
                              production 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 with
                              admissibility 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:

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                                       65
               1.    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 wherein
                           the 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 circumstantial
                           evidence can be upheld and whether

                           there was sufficient evidence to

                           support the conviction are the
                           questions 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.

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                                      66
                     14.   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 upon
                                 the circumstantial evidence,

                                 such evidence must satisfy

                                 three tests:

                                     1. the      circumstances

                                     from which an inference

                                     of guilt is sought to be
                                     drawn, 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      the
                                     conclusion that within

                                     all human probability the

                                     crime was committed by

                                     the accused and none
                                     else. The circumstantial

                                     evidence in order to

                                     sustain conviction must
                                     be      complete      and

                                     incapable of explanation

                                     of any other hypothesis

                                     than that of the guilt of
                                     the    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:

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                                       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 same
                           offers an additional link in the chain

                           of circumstances to complete the

                           chain. The same principle has been

                           followed and reiterated in State of
                           Maharashtra 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       that
                           circumstance 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 in
                           Kuldeep 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 by
                           this 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:

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                                      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 as
                          to 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 must
                          be 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    clearly

                          established 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 no
                          other hypothesis against the guilt is

                          possible. Even when there is no eye-

                          witness to support the criminal

                          charge, but prosecution has been able
                          to     establish     the     chain     of

                          circumstances which is complete

                          leading to inference of guilt of
                          accused and circumstances taken

                          collectively     are     incapable     of

                          explanation     on     any    reasonable

                          hypothesis save of guilt sought to be
                          proved, 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:

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                           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 direct
               ocular 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 indirectly
               by 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 fact
               in 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 SCC

               45. In the case on hand, the evidence

               adduced by the prosecution as

               discussed above, clearly proves the

               chain of events connecting the
               accused 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 by
               Section 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        and
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                                           70
                             circumstances 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
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                                      71
    Ashok 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
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                                       72
    skeleton 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
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                                       73
    meet 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,
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                                           74
    but 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
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                                          75
    Supreme 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 it
                             amounts 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 accused
                             before 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 reads
                             thus:

                             "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 it

                             amounts to a confession or not, as
                             relates 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 of
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                                       76
                           confirmation 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 the
                           object 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 against
                           the accused was that the dead body

                           was recovered as pointed out by the

                           respondent. The statement of the

                           respondent which led to the recovery
                           of   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 as
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                                      77
                          24-12-1995. 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 points
                          out 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 somebody
                          else 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 two
                          possibilities 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 else
                          he 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 is
                          a 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,
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                                       78
                           simpliciter, 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 Prakash
                           Chand 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 evidence
                           of 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 the
                           conduct 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 and
                           are 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
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                                       79
    statement 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 a
                           person 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
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                           80
               is 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 what
                precisely 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 this
                connection 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 act
               was 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 to
               commit it. When the prosecution

               succeeded in showing the possibility

               of some ire for the accused towards

               the 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 to
               impel 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.

        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.

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                                       81
                           Following 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 the
                           prosecution case. (Vide: State of

                           Gujarat v. Anirudhsing )"

                                           (emphasis in original)

                    28.          The     High     Court     while

                           considering the motive has made
                           following 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 the
                           accused 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 victim
                           used 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 inner
                           compartment of the brain of the

                           accused     and    inability  of    the

                           prosecution to establish the motive
                           need 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 area
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                                      82
                          remains 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 be
                          settled. 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 that
                          prosecution 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 its
                          corollary is not that no criminal

                          offence would have been committed it

                          the prosecution has failed to prove the

                          precise motive of the accused to
                          commit it. When the prosecution

                          succeeded in showing the possibility

                          of some ire for the accused towards
                          the 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 to
                          impel 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
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                                       83
    370, 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 prosecution
                           wants 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 too
                           trivial 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 motive
                           of the accused to commit it. When the

                           prosecution succeeded in showing the

                           possibility of some ire for the accused

                           towards the 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 to impel 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. 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):

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                                       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 aforesaid
                           impelling    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 very
                           slight 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 can
                           be presumed unless motive is proved.

                           After all, motive is a psychological

                           phenomenon.       Mere    fact    that
                           prosecution failed to translate that

                           mental disposition of the accused into

                           evidence does not mean that no such

                           mental condition existed in the mind
                           of 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 in
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                                       85
                           the 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
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                                       86
    motive, 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.

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                                         87
    48.         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
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                                             88
    impugned 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