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Decided On : 04.10.2019 vs State Of Himachal Pradesh on 4 October, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 598 of 2017

.

Reserved on: 27.09.2019

Decided on : 04.10.2019

Kamal Kumar …..Appellant

Versus
State of Himachal Pradesh . ….Respondent

Coram:

The Hon’ble Mr. Justice Tarlok Chauhan, Judge.

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting? Yes.

For the Appellant : Mr. Ranjeet Singh Cheema, Mr. Victor
r Dhissa, Mr. Kuldeep and Mr. Ashwani K.
Negi, Advocates.

For the Respondent: Mr. Vinod Thakur, Additional Advocate
General with Mr. Bhupinder Thakur, Ms.

Svaneel Jaswal, Deputy Advocate General
and Mr. Ram Lal Thakur, Assistant
Advocate General.

_ __

Anoop Chitkara, Judge

The instinct of a girl, to be caring, cost life of a 14 years

young female, who had gone to collect firewood, so that her middle-

aged foster mother gets warmth and respite from the biting cold of

the winters of Manali in Himachal Pradesh. It was 4.00 p.m., on

December 15, 2014, when realizing her duty to help her mother, who

had brought this girl from a Nepali family seven years before, went to

the banks of the River Beas, to collect fuelwood, sharing her

household responsibility. The blanket of a meter of snow, fallen three-

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four days before, had covered every exposed surface. Neither she nor

her mother knew that predators are no more wild animals, but the

.

perverts always looking for prey to satisfy their lust on finding a

vulnerable girl. When she did not return till 5.30 p.m., and it started

getting dark, with days already closest to their shortest, her mother

Banti Devi got frightened and inquired in the neighborhood about her

daughter. On that un-fateful day, the Sun, as usual, had set in Manali

somewhere at 5.15 p.m., and the Moon did not show her face at all.

Braving snow, the neighbors did a frantic search to locate her, but

could not find her. It had already become very dark, and there were no

street lights on these difficult mountainous terrains. Her foster mother

made phone calls to her married daughter as well as her daughter-in-

law and apprised them about missing of the victim.

2. The girl could not be traced and was out of her home in

the blood-freezing winters of Manali. After the long cruel cold

night, when the day broke, her mother, Banti, along with one Sheetal

went in search of the young girl towards River Beas. At one place, the

snow had compressed, foot and dragging marks were visible, blood

was also lying on such compressed snow and the stones. At some

distance, was lying a chopper, somewhat submerged in snow, maybe

because of shame, as the girl had faith on it to cut the wood and

protect her. At some distance, closer to the River, the pajama, one

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shoe, and muffler, which the victim was wearing at the time of going

to collect fuelwood, lay scattered. On noticing the clothes of her

.

daughter, she returned to the habitat and informed her daughter

Rajni and daughter-in-law Sunita who, by the time, had also reached

her house. On this Rajni made a phone call to Police Station about

missing of the victim. After that, all the villagers made a frantic hunt

to search the girl along with the River. The water level of River Beas

would have gone up because of the falling tears of the villagers, but

all prayers and efforts failed to trace either the girl or her body.

3. On receipt of the phone call, the police swung into

action. The Investigating officer reached the village, recorded the

statement of Banti Devi, the foster mother of the missing girl, under

Section 154 of CrPC. The police party reached the spot and lifted the

chopper, pajama, string of pajama, dhatu (headgear) with corners

stained with blood, one blue color rexine shoe, one out of pair of tops

(earring); sealed these in parcels and took in possession. The police

also lifted from the spot, the blood along with the blood-stained

snow, stored it in a glass bottle, and sealed the same. The police also

found hair from the spot, sealed and preserved the same. A

photographer took photographs of the place and made a video

recording.

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4. On finding a prima facie case of abduction, in order to

commit murder, FIR No. 221 of 2014, dated 16.12.2014, was

.

registered under Section 364 of IPC in the file of Police Station

Manali, District Kullu, H.P. The investigation led to the clues about the

involvement of the appellant and arrested him on the next day i.e.,

December 17, 2014, at about 8.30 p.m. Immediately after his arrest,

he was taken for his medico-legal examination to Civil Hospital at

Manali, where Dr. Ashok Rana (PW-7), on physical examination of the

accused, noticed a punch out on left interior portion of tongue with

irregular abrasion. The doctor also noticed abrasions on both the

cheeks tapering downwards. On asking of the police, the doctor took

samples of blood and semen and also preserved the underwear worn

by the victim. On the next day, the accused made a disclosure

statement under Section 27 of the Indian Evidence Act (Ext. PW-4/A)

and stated that he could point out the place on the bank of River

Beas, where he had attempted to commit rape upon the victim, and

thereafter, he had thrown the victim in River Beas. After that, the

accused led the police party to the bank of River Beas and pointed

out to the place where, on finding the girl alone cutting fuelwood, he

attempted to commit rape on her and after that, threw her into the

River. From his house the Police recovered, his pants and jacket,

which had bloodstains on it; one sweater and two T-shirts.

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5. During the investigation, the police came to know that

on December 16, 2014, at 10.30 a.m., the accused had visited a

.

nearby clinic at Patli Kuhal. The said clinic belonged to Dr. Ram Singh

(PW-9), to whom the accused had shown his tongue. The doctor

noticed an ulcer of the dimension of two centimetres on the tongue

of the accused. The accused had also revealed to the doctor that he

had sustained this injury on his tongue due to fall as he had slipped

on the snow. However, the doctor did not find any other external

injury on the person of the accused.

6. The police sent the evidence collected from the spot as

well as the clothes of the accused to the Forensic Science Laboratory,

Mandi, which vide report Ext. PA found human blood of Group ‘AB’ on

dathu of the victim, T-shirt, and upper tracksuit of the accused. The

laboratory detected blood of group ‘AB’ on the snow lifted from the

spot. The blood group of the accused was also found to be ‘AB.’

During the investigation, the police had converted the FIR by adding

Section 302, 376 of IPC and Section 4 of the Prevention of Children

from Sexual Offences Act, 2012, after now called POCSO.

7. However, in the report under Section 173(2) of CrPC, the

SHO sought prosecution for the commission of offences punishable

under Section 302, 376 read with Section 511 of IPC and did not

invoke the provisions of POCSO. Accordingly, the trial Court framed

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charges only under Sections 302, 376 read with Section 511 of IPC,

to which the accused did not plead guilty and claimed trial.

.

8. After completion of the trial, in compliance with Section

313 Cr.P.C., the Trial Court put to the accused, the incriminating

circumstances appeared in evidence, and in answer to the

circumstance of the accused visiting PW-9 Dr. Ram Singh on

December 16, 2014, to get treatment of ulcer on his tongue, the

accused explained that there was no ulcer on his tongue; however, he

stated to the doctor that he had a fall on December 15, 2014. The

accused did not lead any evidence in his defence.

9. Vide judgment dated August 23, 2017, passed in

Sessions Trial No. 40 of 2015, the Sessions Judge held the accused

guilty of both the charges and sentenced him to undergo life

imprisonment under Section 302 of IPC along with fine of Rs.

10,000/- and to suffer rigorous imprisonment for two years along

with a fine of Rs. 5,000/- for the offence punishable under Section

376 read with Section 511 of IPC. The period of detention already

undergone by the accused-convict was set off, given the provisions of

Section 428 of CrPC.

10. Challenging the judgment of conviction the accused-

convict has come up before this Court, by filing this appeal under

Section 374 (2) of C.rP.C.

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11. We have heard Mr. Ranjeet Singh Cheema Mr.

Ashwani Kumar Negi, learned Counsel for the appellant and Mr.

.

Vinod Thakur, learned Additional Advocate General, and Ms. Svaneel

Jaswal, learned Deputy Advocate General, for the State. We have

also waded through the entire record.

ANALYSIS AND REASONING:

12. The case set up by the prosecution is based entirely

upon the circumstantial evidence. After appreciation of the evidence,

the following circumstances are culled out:

(a) Banti Devi (PW-1) had three children, all of whom were

married and living separately; in the year 2007, she had adopted a

seven years old girl from a family of immigrants of Nepal, and since

then she (victim) was staying with her foster mother, in their rented

premises situated at Alu Ground:

(i) On appreciation of the statement of PW-1 Banti Devi, which

gets corroboration from her previous statement recorded under

Section 154 of CrPC, (Ext. PW-1/B), the prosecution proved that

she was a tenant in the house of Smt. Yug Doll and was

residing in Alu Ground for the last 30 years, where she was

running a Tea Stall. She had three children, out of whom, two

were daughters, and one was son, and all three were married

long back. One of the daughters, named Rajni, was married in

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Nirmand area of Kullu District. During the year 2007, she had

gone to meet her daughter, where, from a Nepali family, she

.

had adopted the victim. It is also proved that her husband used

to live with her as well as with his son, who was residing at a

distance of 200 or 300 meters away from her house in Alu

Ground. After winter vacations, her daughter Rajni had visited

the home of her brother and was staying in his house. This

evidence is duly corroborated in material particulars by the

testimony of (PW-2) Rajni. Hence, the circumstance is proved.

(b) There is no evidence pointing out towards the involvement of

either PW-1 Banti Devi or any of her family members in the crime:

(i) Investigating Officer did not find involvement of her foster

mother or her family members, in the crime. PW-1 Banti Devi

explicitly stated that when her daughter did not return home for

more than one and a half hour, then she inquired in her

neighbourhood. After that, she made a phone call to her

daughter Rajni and daughter-in-law Sunita and apprised them

of the fact of her gone missing. Her statement recorded under

Section 154 of Cr.P.C. mentions that the villagers had also gone

to search the missing girl. It had come in the evidence that 2-3

days before December 15, 2014, the entire area had

experienced hefty snowfall due to which temperature must

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have significantly dropped and would have made terrain

slippery. After the day broke, she along with one person named

.

Sheetal, went to search the missing girl, and while searching on

the banks of River Beas, she noticed her clothes on the banks

of the River, along with blood on the snow. Immediately after

that, she informed her daughter, daughter-in-law, and all the

villagers went to the spot. Her daughter also made a phone call

to the police, upon which, the police reached the place at

around 9.00 p.m.

(ii) All these facts point out towards a natural human behavior in

such a situation. When she could not go for an extensive search

at night, she went searching for the victim in the morning.

Indeed the area had experienced a heavy snowfall, which would

make walking hazardous and risky. Needless to say that the

prosecution was under an obligation to examine at least

Sheetal, who had searched with (PW-1 Banti Devi) and at least,

one of the neighbours, to lend further corroboration to this fact.

But the failure of the Prosecution would not weaken the other

evidence, which is already proved on record. Undoubtedly,

keeping in view the gravity of the offence, the prosecution did

not do its job well.

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(iii) Eyebrows are raised on this lackluster attitude because the

victim was a poor girl belonging to a family of Nepali

.

immigrants. Be that as it may. There is no evidence pointing

towards the involvement of either PW-1 Banti Devi or any of her

family members in the crime.

(c) On December 15, 2014, at around 4.00 p.m., the victim had

gone all alone towards River Beas to fetch fuel wood; the victim and

her foster mother (PW-1) Banti Devi were staying mostly alone:

(i) It has come in the cross-examination of PW-1 Banti that her

husband was living with her as well as with his son. It has further

come in her testimony that on December 15, 2014, at about

4.00 p.m., the victim had gone to fetch fuelwood. It finds

corroboration from the earliest version recorded under Section

154 CrPC. (Ext. PW-1/B), wherein the victim had told her mother

that she would be going towards Beas River to fetch firewood.

On the next morning, her clothes, one tops, and one shoe were

noticed on the bank of the River Beas, which proves this fact.

(d) On December 15, 2014, around 2.30 p.m., PW-3 Mehar Chand

and Bhuvnesh (not examined), were consuming alcohol in the Dhaba,

situated in Alu Ground. At around 3.00 p.m., the accused Kamal

Kumar visited the said Dhaba, joined their company and started

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drinking alcohol with them. At about 4.00 p.m., Kamal Kumar left the

Dhaba:

.

(i) PW-3 Mehar Chand testified that on December 15, 2014, he

along with one Bhuvnesh Kumar (not examined) had visited the

Dhaba of one Kumar situated at Alu Ground. He stated that

they started consuming liquor in Dhabha and at around 3.00

p.m., Kamal Kumar visited the Dhaba and joined their company

and started drinking alcohol. After an hour, at about 4.00 p.m.,

Kamal Kumar left the Dhaba, perhaps for attending some call

and after that did not return. The English version of this

statement is at variance with the statement recorded in Hindi.

As per the English version, Kamal Kumar went out of the

Dhabha saying that he had to attend call of the nature, to the

contrary, in the statement recorded in Hindi, which is in

consonance with the statement of Ms. Shanu Maya (PW-6), who

was working in the said Dhaba, which belonged to her brother

named, Kumar, reads that at about 4.00 p.m., after listening to

a phone call, Kamal had left the Dhaba and after that, did not

return. On comparison of these statements what transpires is

that Kamal Kumar had left the Dhaba by saying that he is to

attend a phone call and then he did not return.

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(ii) The collective reading of these statements leads to the

irrefutable conclusion that Kamal Kumar had left the Dhaba at

.

4.00 p.m. What is established beyond any reasonable doubt is

that Kamal Kumar was present in the Dhaba and he had left

the said Dhaba situated, in Alu Ground, at 4.00 p.m. and before

that, he had consumed alcohol for an hour.

(e) On December 15, 2014, a little after 5.45 p.m., after taking

alcohol, when PW-3 Mehar Chand along with Bhuvnesh, had left the

Dhaba and were returning to their homes, then on the way at Alu

Ground, near his shop, Kamal Kumar met them and they noticed

scratch marks on his face and blood in his mouth:

(i) PW-3 Mehar Chand has testified, on oath, that after consuming

alcohol from 2.30 p.m. up to 5.45 p.m., he along with Bhuvnesh

left the Dhaba and closed his shop. After that, they were

proceeding towards their homes, and near his shop at Alu

Ground itself, Kamal Kumar met them, and they noticed scratch

marks on his face and blood in his mouth. The prosecution did

not examine Bhuvnesh; however, it is not the quantity, but the

quality of the evidence which matters. Although, the Sun would

set on December 15, 2014, at around 5.15. P.M., in Manali, but

still the visibility would be excellent at about 5.45 p.m. When the

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places are covered with the snow, then due to the reflection,

there is more diffusion of light.

.

(ii) Furthermore, PW-3 Mehar Chand was a local person, and so was

the accused, both belonging to the same area and the same

locality, whereas the victim hailed from Nepal. Despite that he

testified against the accused. This shows that Mehar Chand was

a sterling witness.

(iii) The defence tried to impeach the credibility of (PW-3) Mehar

Chand by suggesting that the police had caught and threatened

them to implicate them in the crime and, as such, they made a

false statement. The presence of these two witnesses in the

Dhaba is corroborated by (PW-6) Ms. Shanu Maya, who stated

that they were in the Dhaba till 4.30 p.m. Although, there is a

contradiction about the exact time when Vicky (Bhuvnesh) and

Mehar Chand had left the Dhaba; according to Ms. Shanu Maya

(PW-6), they had left the Dhaba around 4.30 p.m., whereas

according to (PW-3) Mehar Chand, they had left the Dhaba at

5.45 p.m. Still, this contradiction will not make them

accomplices of the crime. It is pertinent to mention that the

occurrence was of December 15, 2014, and the statements of

these witnesses were recorded in the Court in May 2016, i.e.,

after one and a half years. Rarely do people note the time when

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they leave the places unless they are leaving workplaces,

schools, or have to board buses, trains, or planes or to reach

.

their workplaces. It was evening time. Hence, the said

contradiction is minor.

(iv) It has also come in the evidence that (PW-3) Mehar Chand was

also running a shop at Alu Ground, and he stated that after

leaving his Dhaba, he had closed his shop. It must have

consumed some time.

(v) Despite this contradiction, the material fact, which the

prosecution has successfully proved is that little after 5.45 p.m.,

at Alu Ground, (PW-3) Mehar Chand noticed scratch marks on

the cheeks of Kamal Kumar and blood in his mouth.

(f) Recovery of articles of the victim, namely pajama (salwar),

lower, string of the pajama which was lying separately from it,

headgear (dhatu), socks, one blue colored shoe, tops (earring),

chopper to cut fuelwood, was effected from the bank of Beas River in

the morning of December 16, 2014:

(i) When the victim did not return home on the night of

December 2014, then in the early morning on December 15,

2014, Banti Devi (PW-1) along with Sheetal, started searching

her and went towards Beas River. On the banks of the River,

they noticed clothes of the victim, namely her salwar (lower)

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and its string separated from it, one of her blue coloured shoe,

one tops, her headgear and the chopper, which she had taken

.

to cut wood. All these articles were identified by PW-1 (Banti

Devi) to be belonging to the victim.

(ii) It has come in the statement of PW-2 Rajni, that she had

telephonically informed the police. She also testified about the

presence of the clothes of the victim on the bank of the River.

The police reached the spot and recovered all these articles,

vide Recovery Memo (Ext. PW-1). The photographs Exts. PW-

1/A-1 and A-2, depict these clothes. Therefore, this fact is also

proved.

(g) Corpus Delcti and the involvement of the Convict:

(i) It has come in the evidence that despite frantic efforts

made by the villagers, Nepalis and the divers etc., the police

could not recover the dead body of the victim. However, the

banks of River Beas witnessed the tell-tales of her thrown into

the River.

(ii) In the cross-examination, PW-15 SHO/Inspector Firoz

Khan, in answer to the suggestion of the Defence, about the

quantity of water in River Beas, had stated that he could not

say with absolute certainty that what would be the level of

water in River Beas in those days and that it would be shallow.

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What the defence tried to suggest by this suggestion, was that

because of the low level of water in winters, the dead body

.

would not have floated away to a far of distance, and as such,

there is no evidence that the assailant had thrown the girl into

the River Beas. To analyze this plea of the defence, it is

essential to note that it had come in the evidence and that too,

by the suggestion of the defence lawyer, that 2-3 days before

December 14, 2014, this area had experienced hefty snowfall.

It had also come in the suggestion that the snowfall was so

heavy that it took five days to restore traffic and the snow was

around three to four feet. Even the SHO stated that despite

getting information from the Investigating Officer about the

presence of the clothes on the bank of River Beas, he could

reach the spot at around 4.00 p.m. because he had gone to

rescue 10-15 people trapped in heavy snow and after saving

them, he could reach the place.

(iii) Although, in winters, due to the drop in temperature,

melting of snow slows, bringing down the water level in the

Himalayan Rivers to considerably low. However, the area had

experienced heavy snowfall to the extent of three to four feet,

just three to five days before December 14, 2014. It would

have led to the melting of snow, especially in the lower

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altitudes, like banks of the River. The snow is visible in the

photographs of the spot, showing blood on stones and snow,

.

Ext.PW-11/A-3, Ext.PW-11/A-5 Ext.PW-11/A-6.

(iv) It is safe to conclude that after the heavy snowfall, due to

melting of snow, the water level in the River would have gone

up, as such, it was quite possible that when a small girl, just of

the age of 14 years, would be thrown in the River, then her

body could be washed away up to long-distance. Fury of the

River Beas is so terrible that even the vehicles are sometimes

not traced, what to talk of a body of a small girl.

(v) On December 17, 2014, the Investigators had taken the

accused to Civil Hospital Manali, where PW-7 Dr. Ashok Rana

had extracted blood from the body of accused, and after

sealing the vial with the seals of the Civil Hospital, he had

handed over it to the Investigating Officer. On 19 October,

2014, the Investigating Officer had taken accused Kamal

Kumar to Civil Hospital Manali, where (PW-5) Dr. Dorje Angrup

had medically examined him and also extracted samples of his

hair. After sealing, the same was handed over to the police.

The blood and hair collected from the crime scene, along with

the samples of blood and hair of the accused extracted by the

doctors, were sent to Forensic Science Laboratory at Mandi for

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comparison. As per result No. 4 of the Report (Ext. P-A) of the

Forensic Science Laboratory, the blood lifted from the spot and

.

the blood of the accused was of ‘AB’ Group. Similarly, and

more importantly, the Laboratory vide its Result No. 10, found

the human hair lifted from the spot to be consistent and

comparable with the sample of hair extracted from the head of

accused-Kamal Kumar.

(vi) There is no doubt that the prosecution did not send the

blood and hair samples obtained from the spot for its

comparison with the blood and hair samples of the accused for

conducting a DNA test, as mandated under Section 53 (A) (2)

(iv) of IPC. Still, this deficiency in the investigation needs

assessment in the light of the other evidence proved on record.

At this stage, it shall be appropriate to remind the State of the

pronouncement of the Hon’ble Supreme Court in Krishan

Kumar Malik Vs. State of Haryana, 2011 (7) SCC 130. It is

appropriate to extract a relevant portion of the judgment

mentioned above, which reads as follows:

“44. Now, after the incorporation of Section 53 (A) in the
Criminal Procedure Code, w.e.f. 23.06.2006, brought to
our notice by learned counsel for the Respondent-State,
it has become necessary for the prosecution to go in for
DNA test in such type of cases, facilitating the
prosecution to prove its case against the accused. Prior
to 2006, even without the aforesaid specific provision in

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the Criminal Procedure Code prosecution could have
still resorted to this procedure of getting the DNA test or
analysis and matching of semen of the Appellant with

.

that found on the undergarments of the prosecutrix to

make it a fool proof case, but they did not do so, thus
they must face the consequences.”

(vii) Why did the Investigating Officer not send DNA for

comparison, is not explained, probably because the victim

belonged to the most impoverished strata of Society. It pains

one’s heart to see such a callous approach towards the people

who do not have any say in the system.

(viii) The other evidence, which conclusively proves the presence

of Kamal Kumar on the bank of Beas, has come in the evidence

of the mother of the victim; wherein she had noticed the clothes

of the victim, as well as blood on stones and snow, which the

police had collected as evidence. Although the prosecution did

not conduct DNA matching, still blood grouping was done by the

Laboratory, and the blood of the accused was of Group ‘AB,’ and

the blood found on the bank of River Beas near to the clothes of

the victim was also of Group ‘AB.’ Moreover, as per the report of

Forensic Science Laboratory, the hair recovered by the police

from the spot, in the morning hours of December 16, 2014,

matched with the samples of hair taken from the accused. All

this evidence is sufficient to establish that the accused was

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present on the banks of the River Beas, where his blood had

oozed out. The accused had bleeding from his tongue, which,

.

according to the doctors, was due to tooth bite. The hair

recovered from the spot where the clothes of the victim were

recovered, matched with the hair of the accused.

(ix) The accused had removed the pajama of the victim,

exposing her privates. Pajama was lying scattered along with the

string taken off from it, which confirms violence in the opening

of the pajama and the resistance put up by the young girl. The

accused had no enmity with her; she had no money or jewellery

to be robbed; her only fault was that she had genitals, similar to

from where the accused had also taken birth. The Motive is

obvious. It would be doing injustice to the victim to assume the

absence of rape in the absence of medical evidence or the

absence of her body.

(x) Judicial Precedents on the law relating to Corpus Delicti

(a) In Ram Chandra v. State of U.P., AIR 1957 SC 381, a three judge

bench of Hon’ble Supreme Court holds,

6. In this case the outstanding feature is that there is no
tangible evidence, either of a direct or of a
circumstantial nature, in support of the fact that the
murder has been committed. It is true that in law a

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conviction for an offence does not necessarily depend
upon the corpus delicti being found. There may be
reliable evidence, direct or circumstantial, of the

.

commission of the murder though the corpus delicti are

not traceable.

(b). In Rama Nand and Ors. v. State of Himachal Pradesh (1981) 1

SCC 511, the Hon’ble Supreme Court holds,

“…In other words, we would take it that the corpus

delicti, i.e., the dead-body of the victim was not found in
this case. But even on that assumption, the question
remains whether the other circumstances established on
record were sufficient to lead to the conclusion that

within all human probability, she had been murdered by
Rama Nand appellant? It is true that one of the essential

ingredients of the offence of culpable homicide required
to be proved by the prosecution is that the accused
caused the death” of the person alleged to have been
killed.

28. This means that before seeking to prove that the
accused is the perpetrator of the murder, it must be
established that homicidal death has been caused.
Ordinarily, the recovery of the dead-body of the victim or

a vital part of it, bearing marks of violence, is sufficient
proof of homicidal death of the victim. There was a time

when under the old English Law, the finding of the body
of the deceased was held to be essential before a
person was convicted of committing his culpable

homicide.

“I would never convict”, said Sir Mathew Hale, “a person
of murder or manslaughter unless the fact were proved
to be done, or at least the body was found dead”. This
was merely a rule of caution, and not of law. But in those
times when execution was the only punishment for
murder, the need for adhering to this cautionary rule was
greater. Discovery of the dead-body of the victim bearing
physical evidence of violence, has never been considered
as the only mode of proving the corpus delicti in murder.
Indeed, very many cases are of such a nature where the
discovery of the dead-body is impossible. A blind
adherence to this old “body” doctrine would open the

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door wide open for many a heinous murderer to escape
with impunity simply because they were cunning and
clever enough to destroy the body of their victim. In the

.

context of our law, Sir Hale’s enunciation has to be

interpreted no more than emphasising that where the
dead-body of the victim in a murder case is not found,
other cogent and satisfactory proof of the homicidal

death of the victim must be adduced by the prosecution.
Such proof may be by the direct ocular account of an
eye-witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. ‘homicidal death’
is sought to be established by circumstantial evidence

alone, the circumstances must be of a clinching and
definitive character unerringly leading to the inference
that the victim concerned has met a homicidal death.
Even so, this principle of caution cannot be pushed too

far as requiring absolute proof. Perfect proof is seldom
to be had in this imperfect world, and absolute certainty

is a myth. That is why under Section 3, Evidence Act, a
fact is said to be “proved”, if the Court considering the
matters before it, considers its existence so probable
that a prudent man ought, under the circumstances of

the particular case, to act upon the supposition that it
exists. The corpus delicti or the fact of homicidal death,
therefore, can be proved by telling and inculpating
circumstances which definitely lead to the conclusion

that within all human probability, the victim has been
murdered by the accused concerned.”

(c). In Lakshmi and Ors. v. State of Uttar Pradesh, (2002) 7 SCC

198, the Hon’ble Supreme Court holds,

“16. Undoubtedly, the identification of the body, cause
of death and recovery of weapon with which the injury
may have been inflicted on the deceased are some of
the important factors to be established by the
prosecution in an ordinary given case to bring home the
charge of offence under Section 302 Indian Penal Code.
This, however, is not an inflexible rule. It cannot be held
as a general and broad proposition of law that where
these aspects are not established, it would be fatal to
the case of the prosecution and in all cases and
eventualities, it ought to result in the acquittal of those

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who may be charged with the offence of murder. It
would depend on the facts and circumstances of each
case. A charge of murder may stand established

.

against an accused even in absence of identification of

the body and cause the death.”

(d). In State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353, the

Hon’ble Supreme Court observed,

“3…..It is no doubt true that even in the absence of the
corpus delicti it is possible to establish in an
appropriate case commission of murder on
appropriate material being made available to the

court. In this case no such material is made available
to the court.”

(e). In Rishipal v. State of Uttarakhand, (2013) 12 SCC 551,

Supreme Court holds,

14. In the absence of corpus delicti what the court
looks for is clinching evidence that proves that the
victim has been done to death. If the prosecution is

successful in providing cogent and satisfactory proof of
the victim having met a homicidal death, absence of

corpus delicti will not by itself be fatal to a charge of
murder. Failure of the prosecution to assemble such
evidence will, however, result in failure of the most

essential requirement in a case involving a charge of
murder.

(h) Extra Judicial Confession:

(i) PW-3 Mehar Chand stated that at about 5.40 p.m., on

December 15, 2014, when he was with Bhuvnesh, they again

met the accused and noticed blood in his mouth and scratch

marks on his cheeks, and they obviously inquired from him

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about these injuries. The accused explained to them that he

quarrelled with a girl and the said girl gave a tooth bite on his

.

tongue, and due to anger, he threw her in the flowing River. At

that time, these people thought that he was joking, but after 2-3

days, they realized that he was speaking the truth.

(ii). The accused had consumed liquor for at least one hour

with these people. On being confronted with the injuries, he had

revealed to them about throwing the girl into the River by him;

the cordial relations would infer that he had reason to reveal and

explain to them. By that time, he would not be expected to meet

some people and suddenly on being confronted by them, came

up with half the explanation. Thus, it cannot be said that there

was no occasion for the accused to make an extra-judicial

confession. On the other hand, given the situation, this extra-

judicial confession is corroborated by the doctors, who also

found the wound on his tongue, as a result of teeth bite and the

fact of throwing the girl into the River, the recovery of her

clothes on the bank of the River. While explaining, the accused

did not tell about the sexual assault, but that was the only

motive for him to throw away the child.

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(iii) PW-3- Mehar Chand, to whom the accused was known,

testified the fact of confession. Both PW-3 Mehar Chand, as well

.

as the accused, were natives of the same place, whereas the

victim was of Nepalese origins. The closeness of the accused

with PW-3 Mehar Chand gets corroboration from the statement

of (PW-6) Ms. Shanu Maya. When accused had reached the

Dhaba of Kumar, then he found (PW-3) Mehar Chand consuming

liquor with Bhuvnesh, and he joined them.

(iv). Another factor, which assumes significance, is that the

victim belonged to Nepal and was a poor girl and although, (PW-

1) Banti Devi mentioned it in her testimony that she had

adopted her. Still, we cannot lose sight of the fact that people

keep girls from a low-income family as domestic maids. Despite

that, (PW-3) Mehar Chand testified those facts which he knew

would go against his local companion Kamal Kumar.

(v) In Jagroop Singh v. State of Punjab, AIR 2012 SC 2600,

Hon’ble Supreme Court holds as under:-

“24. The issue that emanates for appreciation is
whether such confessional statement should be given
any credence or thrown overboard. In this context, we
may refer with profit to the authority in Gura Singh v.
State of Rajasthan, 2001(1) R.C.R.(Criminal) 122 :

(2001)2 SCC 205 wherein, after referring to the
decisions in Rao Shiv Bahadur Singh v. State of Vindhya

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Pradesh, AIR 1954 SC 322, Maghar Singh v. State of
Punjab, AIR 1975 SC 1320, Narayan Singh v. State of
M.P., AIR 1985 SC 1678, Kishore Chand v. State of H.P.,

.

1990(3) R.C.R (Criminal) 650 : AIR 1990 SC 2140 and

Baldev Raj v. State of Haryana, 1991(1) R.C.R.(Criminal)
75 : AIR 1991 SC 37, it has been opined that it is the
settled position of law that extra judicial confession, if

true and voluntary, can be relied upon by the court to
convict the accused for the commission of the crime
alleged. Despite inherent weakness of extra- judicial
confession as an item of evidence, it cannot be ignored
when shown that such confession was made before a

person who has no reason to state falsely and his
evidence is credible. The evidence in the form of extra-
judicial confession made by the accused before the
witness cannot be always termed to be tainted evidence.

Corroboration of such evidence is required only by way
of abundant caution. If the court believes the witness

before whom the confession is made and is satisfied
that it was true and voluntarily made, then the
conviction can be founded on such evidence alone. The
aspects which have to be taken care of are the nature of

the circumstances, the time when the confession is
made and the credibility of the witnesses who speak for
such a confession. That apart, before relying on the
confession, the court has to be satisfied that it is

voluntary and it is not the result of inducement, threat or
promise as envisaged under Section 24 of the Act or

brought about in suspicious circumstances to
circumvent Sections 25 and 26.

25. Recently, in Sahadevan Another v. State of
Tamil Nadu, 2012(2) R.C.R.(Criminal) 899 : 2012(3)
Recent Apex Judgments (R.A.J.) 23 : 2012 AIR SCW
3206, after referring to the rulings in Sk. Yusuf v. State
of W.B., 2011(5) R.C.R.(Criminal) 762 : 2011(5) Recent
Apex Judgments (R.A.J.) 308 : (2011)11 SCC 754 and
Pancho v. State of Haryana, 2011(4) R.C.R.(Criminal)
665 : 2011(5) Recent Apex Judgments 481 : (2011)10
SCC 165 : AIR 2012 SC 523, a two-Judge Bench has laid
down that the extra-judicial confession is a weak
evidence by itself and it has to be examined by the court
with greater care and caution; that it should be made
voluntarily and should be truthful; that it should inspire

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confidence; that an extra-judicial confession attains
greater credibility and evidentiary value if it is supported
by a chain of cogent circumstances and is further

.

corroborated by other prosecution evidence; that for an

extra- judicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and
inherent improbabilities; and that such statement

essentially has to be proved like any other fact and in
accordance with law.”

(I) Recovery of clothes of accused vide recovery memo Ext. PW-

8/A:

(i). The Prosecution has failed to prove such recovery because

there were two independent witnesses while making this

recovery. One was HC Kapil Kumar (PW-8) and the second was

Rohit Kumar. PW-8 was a police witness, and unless an

independent witness corroborates such recovery, it would be

difficult to rely upon it. Needless to say that it is not a recovery

based upon the disclosure statement under Section 27 of the

Indian Evidence Act, but one which viz-a-viz which would fall

under Section 102 of CrPC. As such, it was incumbent upon the

prosecution to examine Rohit Kumar, the sole independent

witness, but for the reasons best known to the Prosecution, he

was not examined. PW-2 Rajni also corroborated the seizure of

articles from the spot.

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(j) Injury on the tongue of the accused and his explanation thereof:

.

(i). The fact of the victim having been thrown into the River by the

accused and none else is sure because of the presence of

abrasions on both cheeks of the accused as well as a puncture

wound on his tongue, relating to the time when the victim had

gone missing. The most clinching evidence is the statement of

(PW-3) Mehar Chand. He is a reliable witness, with no axe to

grind against the accused and his testimony remained un-

shattered. He deposed that at around 4.00 p.m., when the

accused had left his company, then he did not tell about any

injury, but at around 5.45 p.m. when the accused met him

again, he had found abrasions on his cheek and blood in his

mouth.

(ii). The statement of (PW-9) Dr. Ram Singh assumes significance.

According to the testimony of this witness, he runs a Clinic at

Patli Kuhal and in the morning hours, at around 10.30 a.m., on

December 16, 2014, the accused had visited his Clinic. On

examination of the accused, he noticed an ulcer of around 2

centimetres on his tongue, covered with blood clot. The accused

gave a history to the doctor that he had a fall on the previous

day. The prosecution had proved one prescription slip by this

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doctor, exhibited as PW-9/A. A perusal of the original document

shows that it has four-folds when seen from its reverse portion.

.

This fold will occur when somebody keeps this slip after folding

it in the pocket. This prescription slip was supposed to be with

the accused and not with the doctor himself. Strangely, the

prosecution did not lead any evidence to prove that how and by

which memo and on which date, it was taken into possession.

Therefore, no reliance can be placed on the prescription slip (Ext.

PW-9/A). However, be that as it may, the credibility of the

statement of (PW-9) Dr. Ram Singh, who is again a local,

remains un-impeached that he had examined the accused on

December 16, 2014, at around 10.30 a.m. and had notice

clotted blood in his tongue. The doctor further clarified that

although the accused also stated that he received this injury due

to a fall, but he has not seen any external injury. According to

Stedman’s Medical Dictionary, 23rd Edition, an ‘ulcer’ is defined

as ‘a lesion on the surface of the skin or a mucous surface,

caused by superficial loss of tissue usually with inflammations.’

It is also defined as ‘a wound with superficial loss of tissue from

trauma which would turn into an ulcer if infection occurs.’

(iii). On Dec 17, 2014 at 9.50 p.m., the police had taken the accused

to Civil Hospital Manali, where (PW-7) Dr. Ashok Rana had

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examined him and issued MLC Ext. PW-7/B. In his testimony,

(PW-7) Dr. Ashok Rana stated that he had noticed punched out

.

on the left anterior part of the tongue with irregular margins. He

had also seen abrasions on the left and right cheeks, measuring

approximately ¼ centimeters tapering above-downwards.

(iv). After his arrest, on Dec 19, 2014, the Investigating Officer had

also taken the accused to Civil Hospital Manali, where (PW-5) Dr.

Dorje Angrup conducted his medical examination and issue

M.L.C (Ext. PW-5/B). In his testimony, (PW-5) Dr. Dorje Angrup

also stated that he had noticed one injury on the left

anterolateral part of the tongue, which was punched off with an

irregular infected margin. He also saw that the frenulum/ventral

aspect of the tongue near the frenulum was also infected.

(v). Now, cumulative reading of the evidence of the doctors, who had

examined the accused on December 16, 17 and 19, 2014, had

noticed a punctured wound on the tongue of the accused. ASI

Gandhi Ram (PW-17) had also mentioned about two abrasions

on both the cheeks of the accused, tapering downwards. (PW-7)

Dr. Ashok Rana explicitly stated that this injury is also possible if

a person falls on a hard surface and his tongue comes between

the teeth. He further explained that it would also result in

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corresponding injuries, which were not noticed by him in the

MLC. Similarly, (PW-5) Dr. Dorje Angrup categorically stated that

.

“the injury found on the tongue of the accused is most likely to

be caused by teeth bite.” He denied that this injury was possible

by fall from a height because there was no corresponding injury.

(vi). The accused in his statement under Section 313 of CrPC., in

answer to question No. 35, admitted that he had stated to the

said doctor that he had a fall on December 15, 2014. Thus, it is

proved beyond a reasonable doubt that Kamal Kumar had

visited the Clinic of (PW-9) Dr. Ram Singh on December 16,

2014, at around 10.30 a.m. to get treatment of wound on his

tongue, which had clotted blood on it and he had received the

injury on the tongue on Dec 15, 2014.

(vii). A perusal of this irrefutable evidence leads to an irresistible

conclusion that the accused had received these injuries on his

tongue due to teeth bite. There is clinching evidence to prove

that the abrasions on his cheeks, pointing out towards

resistance offered by someone. The tell-tale signs on the spot

are alarming and reveal that, below the torso, the victim was

wholly undressed, with her privates exposed. Therefore, no other

inference is possible except that during the process of sexually

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assaulting a 14 years young girl, the accused was trying to lick

her by inserting his tongue in her mouth, and the girl was

.

fighting like a lioness. She did not give her consent, inflicted

teeth bite in the tongue of the accused and caused abrasions on

his cheeks. The presence of the blood on the spot, which oozed

out from the tongue of the accused, proves beyond reasonable

doubts that he was the person, who had assaulted the helpless

girl. r

13. Judicial Precedents on the Law of Circumstantial Evidence::

a) In Hanuman Govind Nargundkar v. State of Madhya

Pradesh, AIR 1952 SC 343, a three member bench of the Hon’ble

Supreme Court holds:

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 hypothesis
of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show
that within all human probability the act must have been
done by the accused…”

b) In Eradu and Ors. v. State of Hyderabad, AIR 1956 SC 316,

the Hon’ble Supreme Court observed

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10. ..It is a fundamental principle of criminal jurisprudence
that circumstantial evidence should point inevitably to the
conclusion that it was the accused and the accused only

.

who were the perpetrators of the offence and such

evidence should be incompatible with the innocence of the
accused.

c) In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200,

a Constitutional Bench of the Hon’ble Supreme Court holds:

18. …It is a well-established rule in criminal jurisprudence
that circumstantial evidence can be reasonably made the
basis of an accused persons’ conviction if it is of such a
character that it is wholly inconsistent with the innocence
of the accused and is consistent only with his guilt. If, the

circumstances proved in the case are consistent either with

the innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt. There is no
doubt or dispute about this position. But in applying this
principle, it is necessary to distinguish between facts which

may be called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In
regard to the proof of basic or primary facts, the Courts has
to judge the evidence in the ordinary way, and in the

appreciation of evidence in respect of the proof of these
basic or primary facts there is no scope for the application

of the doctrine of benefit of doubt. The Court considers the
evidence and decides whether that evidence proves a
particular fact or not. When it is held that a certain fact is

proved; the question arises whether that fact leads to the
inference of guilt of the accused person or not, and in
dealing with this aspect of the problem, the doctrine of
benefit of doubt would apply and an inference of guilt can
be drawn only if the proved fact is wholly inconsistent with
the innocence of the accused and is consistent only with
his guilt…

d) In Gambhir v. State of Maharashtra, (1982) 2 SCC 351, the

Hon’ble Supreme Court holds:

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9. …The law regarding 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 pointing towards guilt of the accused; (3) the

circumstances, taken cumulatively, should form a chain 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. In the light

of the legal position about the circumstantial evidence, we
have to examine whether the circumstantial evidence in

the instant case satisfies the requirements of law.

e) In, Sharad Biridhichand Sarda v State of Maharashtra,

(1984) 4 SCC 116, a Three Member Bench of the Hon’ble Supreme

Court holds:

151. It is well settled that the prosecution must stand or
fall on its own legs and it cannot derive any strength from
the weakness of the defence. This is trite law and no

decision has taken a contrary view. What some cases have
held is only this where various links in a chain are in
themselves complete, then a false plea or a false defence
may be called into aid only to lend assurance to the Court.
In other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case, the
same could be cured or supplied by a false defence or a
plea which is not accepted by a court.

152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,

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character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is Hanumant

.

v. State of Madhya Pradesh, (supra). This case has been

uniformly followed and applied by this Court in a large
number of later decisions up-to-date, for instance, the
cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198

and Ramgopal v State of Maharashtra, AIR 1972 SC 656.
It may be useful to extract what Mahajan, J. has laid down
in Hanumant’s case (supra) :

“It is well to remember that in cases where the evidence is

of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established and all the facts so
established should be consisent only with the hypothesis of

the guilt of the accused. Again, the circumstances should
be of a conclusive nature and tendency and they should be

such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of

the accused and it must be such as to show that within all
human probability the act must have been done by the
accused.”

153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against

an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is

to be drawn should be fully established.

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

“certainly, it is a primary principle that the accused must
be and not merely may be guilty before a Court can convict

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and the mental distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with

.

the hypothesis of the guilt of the accused, that is to say,

they should not be explainable on any other hypothesis
except that the accused is guilty.

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

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

(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must

show that in all human probability the act must have been
done by the accused.

154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on

circumstantial evidence.

f) In Kishore Chand v State of Himachal Pradesh, (1991) 1

SCC 286, the Hon’ble Supreme Court holds

5. “In assessing the evidence imaginary possibilities have
no role to play. What is to be considered are ordinary

human probabilities. In other words when there is no direct
witness to the commission of murder and the case rests
entirely on circumstantial evidence, the circumstances
relied on must be fully established…”

g) In Vasa Chandrasekhar Rao v. Ponna Satyanarayana

Anr. (2000) 6 SCC 286, the Hon’ble Supreme Court observed:

7. …Where the prosecution wants to prove the guilt of the
accused by circumstantial evidence, it is necessary to
establish that the circumstances from which a conclusion

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is drawn, should be fully proved; the circumstances should
be conclusive in nature; all the facts so established, should
be consistent only with the hypothesis of the guilt and

.

inconsistent with the innocence; and the circumstances

should exclude the possibility of guilt of any person other
than the accused. In order to justify an inference of guilt,
the circumstances from which such an inference is sought

to be drawn, must be incompatible with the innocence of
the accused. The cumulative effect of the circumstances
must be such as to negate the innocence of the accused
and to bring home the offence beyond any reasonable
doubt. Where accused on being asked, offers no

explanation or the explanation offered is found to be false,
then that itself forms an additional link in the chain of
circumstances to point out the guilt.

h) In B. Venkat Swamy v. Vijaya Nehru, (2008) 10 SCC 260, a

Three Member Bench of the Hon’ble Supreme Court observed:

19. “…13. Sir Alfred Wills in his admirable book “Wills’
Circumstantial Evidence” (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence:(1) the facts alleged as the basis

of any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial

evidence the best evidence must be adduced which the
nature of the case admits; (4) in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and
incapable of explanation, upon any other reasonable
hypothesis than that of his guilt, (5) if there be any
reasonable doubt of the guilt of the accused, he is entitled
as of right to be acquitted”.

(i) Placing reliance upon the Principles of law laid down by

the Hon’ble Supreme Court in Hanumant Govind Nargundkar

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and anr. v. State of Madhya Pradesh,AIR 1952 SC 343, the

Bench holds,

.

14. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the

touch- stone of law relating to circumstantial evidence laid
down by the this Court as far back as in 1952.

SUM UP:

14. From the summary of law relating to Circumstantial Evidence,

the following fundamental principles emerge:

(i) CIRCUMSTANCES SHOULD BE FULLY ESTABLISHED:

The circumstances from which the conclusion of guilt is to be

drawn should be fully established. (Sharad, (1984) 4 SCC 116).

In assessing the evidence imaginary possibilities have no role to

play. What is to be considered are ordinary human probabilities.

In other words when there is no direct witness to the

commission of murder and the case rests entirely on

circumstantial evidence, the circumstances relied on must be

fully established. (Kishore, (1991) 1 SCC 286).

(ii) CIRCUMSTANCES SHOULD BE CONSISTENT:

The circumstantial evidence should not only be consistent with

the guilt of the accused but should be inconsistent with his

innocence. (Gambhir, 1982 (2) SCC 351). It is a well-established

rule in criminal jurisprudence that circumstantial evidence can

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be reasonably made the basis of an accused persons’ conviction

if it is of such a character that it is wholly inconsistent with the

.

innocence of the accused and is consistent only with his guilt. If,

the circumstances proved in the case are consistent either with

the innocence of the accused or with his guilt, then the accused

is entitled to the benefit of doubt. (M.G. Agarwal, AIR 1963 SC

200).

(iii) CIRCUMSTANCES SHOULD BE CONCLUSIVE:

The circumstances should be of a conclusive nature and

tendency. (Sharad, (1984) 4 SCC 116). It is a fundamental

principle of criminal jurisprudence that circumstantial evidence

should point inevitably to the conclusion that it was the accused

and the accused only who were the perpetrators of the offence

and such evidence should be incompatible with the innocence

of the accused. (Eradu, AIR 1956 SC 316).

(iv) CIRCUMSTANCES SHOULD BE OF DEFINITE TENDENCY:

Circumstances should be of a definite tendency unerringly

pointing towards guilt of the accused. (Gambhir, (1982) 2 SCC

351).

(v) NO OTHER HYPOTHESIS EXCEPT ONE TO BE PROVED:

The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

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not be explainable on any other hypothesis except that the

accused is guilty. (Sharad, (1984) 4 SCC 116). 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. (Gambhir, (1982) 2 SCC

351). They should exclude every possible hypothesis except the

one to be proved. (Sharad, (1984) 4 SCC 116).

(vi) CUMULATIVE EFFECT OF GUILT NOT INNOCENCE:

In order to justify an inference of guilt, the circumstances from

which such an inference is sought to be drawn, must be

incompatible with the innocence of the accused. The cumulative

effect of the circumstances must be such as to negate the

innocence of the accused and to bring home the offence beyond

any reasonable doubt. (Vasa Chandrasekhar, (2000) 6 SCC

286).

(vii) CHAIN OF CIRCUMSTANCES MUST BE COMPLETE:

Circumstances, taken cumulatively, should form a chain 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. (Gambhir, (1982) 2 SCC 351).

(viii) FALSE DEFENCE AS AN ADDITIONAL LINK ONLY WHEN ALL

CIRCUMSTANCES ARE ESTABLISHED:

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Where accused on being asked, offers no explanation or the

explanation offered is found to be false, then that itself forms an

.

additional link in the chain of circumstances to point out the

guilt. (Vasa Chandrasekhar, (2000) 6 SCC 286). 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 that where various links in a

chain are in themselves complete, then a false plea or a false

defence may be called into aid only to lend assurance to the

Court. In other words, before using the additional link it must be

proved that all the links in the chain are complete and do not

suffer from any infirmity. It is not the law that where there is any

infirmity or lacuna in the prosecution case, the same could be

cured or supplied by a false defence or a plea which is not

accepted by a court. (Sharad, (1984) 4 SCC 116).

15. These circumstances, on its own, make an unbroken

chain of evidence pointing out towards the guilt of the accused. Apart

from this, the Prosecution has relied upon the evidence of extra-

judicial confession, which, even if ignored, would not change the

outcome of this case. Resultantly, the prosecution has proved that it

was the accused, who undressed the young girl to commit sexual

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42

intercourse with her, and then intending to screen the evidence,

threw her in the River Beas. The non-recovery of her dead body is not

.

necessary to prove her death.

16. Learned Counsel for the accused argued that the link

evidence is missing and the prosecution had failed to prove that the

samples of hair and blood remained un-tampered before they were

tested in the Laboratory.

17.

This submission has no force. Firstly, because the police

had recovered hair, immediately on reaching the spot, and there was

no possibility of police planting the hair of the accused. At that time,

the accused was not even a suspect. The recovery memo Ext. PW-

1/A, signed by Banti Devi, contains this fact. Undoubtedly, the

Prosecution did not examine Sheetal, but in their testimonies, both

Banti Devi (PW-1), and her daughter PW-2 Rajni, corroborate the

recovery. They had no enmity with the accused, and there was no

reason to concoct evidence to frame him. Her cross-examination

failed to impeach her credibility. The Investigating Officer (PW-17)

ASI Gandhi Ram testified about the recovery of blood and hair from

the place. The defence could not cast any dent to doubt this

recovery.

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18. The Investigating Officer, PW-17 Gandhi Ram collected the

evidence and sealed the same. He handed over it to PW-13 Head

.

Constable Vivek Kumar, who was on duty as MHC in Police Station,

Manali on December 16, 2014. The prosecution examined (PW-16)

Head Constable Bal Krishan, who was the officiating MHC on

December 20, 2014, on account of the leave of MHC Vivek and on

that day, he had handed over the case property along with Road

Certificate to (PW-4) Head Constable Lal Singh to deposit the same in

RFSL, Mandi. The prosecution had examined PW-4 Head Constable

Lal Singh to prove that he had taken the samples to the laboratory on

December 20, 2014, after receiving the same from MHC Bal Krishan

and on the same day, he had deposited the same in the laboratory.

19. Regarding link evidence, the report of the laboratory,

which is per se admissible under Section 293 of Cr.P.C., reveals that

it had received the samples on December 20, 2014, and seals on the

parcels were intact. They had tallied with specimen seals sent with

the docket. Therefore, the link evidence is complete. The

prosecution has proved that the case property remained un-

tampered.

20. On what basis, the Investigators and the prosecution

concluded that it was an attempt to rape, is beyond any

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44

comprehension. They relied upon the inadmissible portion of the

disclosure statement of the accused made by him on December 16,

.

2014 (Ext. PW-3/A), wherein he had stated that he could point out

the spot near the River Beas, where on December 15, 2014, at about

4.30 p.m., he had found the victim alone cutting fuelwood and then

tried to commit evil act with her and after that threw her in the River.

This statement does not lead to the discovery of any fact, as such,

would not fall under the exception to the Recoveries, under Section

27 of the Indian Evidence Act, 1872. On its plain reading, it is hit by

Section 26 of the Indian Evidence Act and could not be proved.

21. Any person accused of such a heinous offence would not

necessarily tell that he was able to complete the sexual act. The

accused successfully mislead the Investigation by camouflaging his

ghastly deed. The accused later on denied everything. Had he been

charged under Section 201, 376 of IPC and POCSO, the sentence

would have been proportionate to the crime. There was no reason for

this pervert to spare this small girl without satisfying his lust to the

fullest. There was nobody to save her. Section 375 IPC, states that

even the slightest penetration amounts to rape. Her dead body could

never be recovered to reveal how much trauma she had to undergo.

The motive of the offence was sex, and the purpose of pushing her in

the River was undeniable to destroy the evidence. Undoubtedly, the

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burden is on the prosecution to prove every allegation. Still, under

Section 106 of the Indian Evidence Act, the burden shifts on the

.

accused, when the initial burden is discharged by the prosecution,

and to prove the facts which were especially within the knowledge of

the accused.

22. The law is no more res Integra that an accused cannot

be convicted for an offence higher than for what he was charged. The

trial Court framed charges, for the offences punishable under

Sections 302 and 376 read with Section 511 of IPC, because the

police had filed the report under Section 173 (2) of CrPC, claiming

prosecution only for the commission of these offences. Nobody

bothered to invoke the provisions of the POCSO Act as well as to

frame charges under Section 201 and 376 of IPC. The State-

respondent must keep this aspect in mind while considering

remissions to the accused.

23. Resultantly, the prosecution has proved that it was the

accused, who threw her in River Beas. The non-recovery of her dead

body is not fatal to prove her fatal end.

CONCLUSION:

24. Given the analysis of the evidence and application of the

law, the prosecution has proved its case beyond any reasonable

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doubt. The evidence proved on the record is sufficient to conclude

guilt and the chain of circumstances is complete. There is no error in

.

the reasoning of the Trial Court, and there is no occasion for this

Court to take a view contrary to the one taken in the impugned

judgment. The Trial Court, in our considered opinion, has correctly

and accurately appreciated the evidence. Accordingly, the judgment

passed by the Trial Court is affirmed, the appeal fails, and it is,

therefore, dismissed. Registry to return the records to the Trial Court.

(Tarlok Chauhan)
Judge

(Anoop Chitkara)

October 4, 2019. Judge
(hemlata)

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