IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

.

Cr. Appeal Nos. 493 and 176 of 2015
Reserved on : 2.1.2019.
Decided on : 28.03.2019.

Cr. Appeal No. 493 of 2015

Rattan Chand ……Appellant.

Versus
State of Himachal Pradesh ……Respondent.

Cr. Appeal No. 176 of 2015

Vikash Puri ……Appellant.

Versus
State of Himachal Pradesh ……Respondent.

Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge .
Whether approved for reporting? 1 Yes.

For the appellant in : Mr. Anup Chitkara, Advocate with
both the appeals. Ms. Sheetal Vyas, Advocate.

For the respondent : Mr. Vikas Rathore, Mr. Narender
Guleria, Addl. AGs, with Mr. Kunal
Thakur and Mr. Sunny Dhatwalia,
Dy. AGs.

Dharam Chand Chaudhary, J.

Appellants, hereinafter called as accused persons, in

both the appeals are convicts. The principal accused is Rattan

Chand, appellant in Criminal Appeal No. 493 of 2015. He has
1
Whether the reporters of the local papers may be allowed to see the
Judgment? yes.

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been convicted by learned Additional Sessions Judge, Chamba,

District Chamba, H.P. for the commission of the offence

.

punishable under Sections 302 and 404 of the Indian Penal Code,

whereas acquitted of the charge framed against him under

Section 376 of the Code. His co-accused Vikash Puri, the

appellant in connected appeal No. 176 of 2015 has been held

guilty and convicted for the commission of offence punishable

under Section 411 of the Indian Penal Code. Accused Rattan

Chand has been sentenced to undergo imprisonment for life and

to pay `20,000/- as fine for the commission of offence punishable

under Section 302 of the Indian Penal Code and further to

undergo rigorous imprisonment for three years for the

commission of offence punishable under Section 404 of the

Code, whereas accused Vikash Puri has been sentenced to

undergo rigorous imprisonment for three years and to pay

`5000/- as fine for the commission of the offence punishable

under Section 411 of the Indian Penal Code vide judgment dated

10.4.2015, under challenge in these appeals.

2. On 9.5.2012 Gorkhi, a female, aged 42 years, was

found dead in Khanera jungle, Pargana Manjer, Tehsil Salooni,

District Chamba. The police of Police Station, Kihar received

information in this regard at about 7:35 P.M. over telephone

which was entered in rapat rojnamcha vide rapat Ext. PW18/C.

On receipt of the information, PW23 Sub Inspector Darshan Singh

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accompanied by ASI Ishwar Dass, HC Varinder (PW9), HC Bhag

Singh, C. Satish (PW20), C. Rumel and C. Devi Chand (PW12) left

.

for the spot in official vehicle (Gypsy) No. HP-48-0863. The same

was being driven by C. Tilak Raj. On the spot, HC Bhupi Ram. C.

Subhash and Lady Constable Ranjana of Police Station, Salooni

had already arrived and present. Bal Krishan PW1 son of

deceased was also present on the spot. He made the statement

Ext.PW1/A which was recorded by PW 23 Sub Inspector Darshan

Singh, the then Station House Office, Police Station, Kihar and

investigating officer of this case. In a nut shell, the complainant

PW1 has disclosed that on 9.5.2012 around 11:30 A.M. all family

members had left the home in connection with their respective

domestic affairs. He along with his wife also left for village

Bhandal to the house of his paternal aunt (Bua) to attend the

celebration of birthday of her son there. It is his mother Smt.

Gorkhi, the deceased, left behind in the house. She told him that

during day time she will go to forest to collect ‘Khasrod’ (wild

vegetable). In the evening when he alongwith his wife returned

around 3:30 P.M. to the house his younger brother Dharam

Chand PW5 was present there. His mother, however, was not

present. He, therefore, called her on her Cell Phone bearing No.

98169-67124. He in turn received the tone “switched off”. He

contacted his near relations to ascertain as to whether his

mother Gorkhi has come to them or not. They all told that she

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had not come to them. It is on this, he accompanied by his wife

Meena Devi went inside the forest adjoining to their house in

.

search of Gorkhi Devi. It is around 6:45 P.M. they noticed that

she was lying inside the bushes. On touching her body she was

found dead. Her dupatta was found tied around her neck. Blood

had oozed out from her nose and mouth. The nose pin, golden

ear rings and silver chain were found missing from her nose, ears

and neck.

Her cell phone bearing No. 98169-67124 was found

kept in light yellow coloured bag. However, on checking its SIM

was found missing. In the bag, little wild vegetable was also

found kept. Her plastic shoes were also found towards the side

of her feet. On hearing his cries, the villagers also arrived at that

place.

3. In view of the statement Ext. PW1/A the deceased

was found to be strangulated with her dupatta and the SIM of the

mobile missing. However, who did it and responsible for such

gruesome act, nothing has come in the statement Ext.PW1/A nor

the complainant PW1 suspected the hand of someone in the

commission of this offence. Anyhow, it is during the course of

investigation allegedly surfaced that accused Rattan Chand was

in touch with the deceased since pretty long time. They both

used to speak with each other over cell phones. The accused

allegedly used to call the deceased from his cell phone bearing

No. 98167-30076 on her cell phone bearing No. 98169-67124.

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On the fateful day also, he allegedly made four calls to her i.e.

07:16:59, 07:45:05, 10:10:59 and 10:40:48 hours. The call detail

.

reports Ext.PW14/B and Ext.PW14/C have been pressed in

service in this regard. As per the further investigation conducted

in this matter accused Rattan Chand wanted to subject the

deceased to sexual intercourse. She allegedly demanded money

from him. He, however, failed to pay money to her and it is for

this reasons she did not allow him to commit sexual intercourse

with her. It is for this reasons he allegedly killed her by way of

strangulating her with her own dupatta and taken away her

jewellary i.e. nose pin, silver chain and golden ear rings. He

allegedly sold the same to his co-accused Vikash Puri, a jeweller

in Mohalla Lahore Gali, Chougan Chamba town. The charge

against accused Rattan Chand was framed for the Commission of

the offence punishable under Sections 376, 302 and 404 of the

Indian Penal code, whereas against his co-accused Vikash Puri

under Section 411 of the code. They, however, pleaded not guilty

and claimed trial.

4. The prosecution in order to sustain the charge

against him has examined 23 witnesses in all. The material

prosecution witnesses are Bal Krishan PW1 and Dharam Chand

PW5, both sons of the deceased, PW2 Chamaru Ram a witness to

the recovery of shoes, mobile pone of deceased and plucked wild

vegetable, PW3 Vinod Kumar a witness to the proof of cell No.

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98167-30076 belongs to accused Rattan Chand. PW4 Surinder

Kumar is conductor of private bus belonging to Mushtaq Service

.

and as per his version the accused on 9.5.2012 boarded the bus

being conducted by him at 7:55 A.M. at Sultanpur (Chamba) for

Salooni and alighted at Sundla. PW6 Mohan Lal is a witness to

the recovery of Mobile phone make Lawa KKT-34 having duel SIM

i.e. 98167-30076 and 08057-11328 and currency notes worth

`10 and coin of `5/-. PW7 Rajesh Kumar is a fellow villager who

on hearing screams of PW1 Bal Krishan rushed to the spot.

Therefore, he is also a witness of the circumstances prevailing on

the spot on the recovery of dead body of Gorkhi there. PW8

Sanjesh Kumar is also Conductor of one of bus of Mushtaq

service. According to him accused Rattan Chand had boarded

the bus at Sundla for Dudhedi at 8:55 A.M. PW10 Ishwar Kumar

has also stated that cell phone number of accused Rattan Chand

was 98167-30076. Kamal Dev PW13 though a witness to the

recovery of the ornaments from accused Vikash Puri, however,

turned hostile. PW21 Jagdish is husband of deceased Gorkhi

Devi.

5. The remaining prosecution witnesses are, however,

formal being official witnesses having remained associated

during the course of investigation in one way or the other

because PW9 HC Varinder Singh accompanied PW23 on receipt of

the information in Police Station, Kihar. PW11 Dr. Harsh Mahajan

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has conducted the post mortem of the dead body alongwith

penal of doctors namely Dr. Dushyant Thakur, Dr. Richa Thakur

.

and Dr. Arti Sharma. PW12 LHC Devi Chand also visited the spot

accompanied by PW23 SI Darshan Singh, the Investigating

Officer. PW14 Devinder Verma, Nodal Officer, Bharti Airtel

Limited, Kasumati, Shimla has proved the documents Ext.PW14/A

to Ext. PW14/C, Ext.PW14/D to Ext.PW14/F which he had supplied

r to
to Chamba police on the request made by Superintendent of

Police Chamba for the purpose. PW15 Yasheen Mohd. is Field

Kanungo and PW16 Ramesh Chand is the Patwari, Patwar Circle,

Devgarh. They have proved the application moved by the SHO,

Police Station, Kihar Ext.PW15/A, the demarcation report

Ext.PW15/B, the Akas Tatima Ext.PW16/A and Jamabandi

Ext.PW16/B. PW17 Naresh Kumar is the photographer. He has

proved the photographs Ext.PW1/B-1 to Ext.PW1/B-6. PW18 HC

Ramesh Kumar was Moharar Head Constable in Police Station,

Kihar at the relevant time whereas PW19 HHC Diwan Chand

while working as General duty constable in the Police Station had

taken the case property to Forensic Science Laboratory. PW20 C.

Satish Kumar being a member of police party visited the spot

had taken the Rukka Ext.PW1/A to police station for registration

of FIR. PW22 Dr. Vishal Thakur has conducted the medical

examination of accused Rattan Chand. As noticed at the outset

PW23 SI Darshan Singh is the Investigating Officer. Since mobile

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cell phone bearing No. 98167-30076 was registered in the name

of Suresh Kumar, therefore said Shri Suresh Kumar has also been

.

examined. According to him, he has never used this Sim.

6. On completion of the prosecution evidence, the

statement of accused Rattan Chand was recorded under Section

313 Cr.P.C. The incriminating circumstances appearing against

him were put during such examination. He, however, denied the

same either for want of knowledge or being incorrect. He has

denied that Cell No. 98167-30076 belongs to him. Though it is

admitted that he was a tenant of PW10 Ishwar. However, denied

that he used to speak with his landlord through cell number

98167-30076. It is stated that he is innocent and has been

implicated falsely in this case.

7. Accused Vikash Puri has also denied all the

incriminating circumstances put to him in his statement under

Section 313 Cr.P.C. being incorrect. According to him he is

working as JSW (Man power out sourcer) and not a Goldsmith.

8. Learned trial Judge on hearing learned Public

Prosecutor and learned defence counsel as well as appreciating

the oral as well as documentary evidence has held accused

Rattan Chand guilty for the commission of offence punishable

under Sections 302 and 404 of the Indian penal Code. His co-

accused Vikash Puri has been held guilty for the commission of

the offence punishable under Section 411 of the Code. They

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both have been convicted and sentenced accordingly as pointed

out in this judgment at the outset. Accused Rattan Chand has,

.

however, been acquitted of the charge framed against him under

Section 376 IPC as no case to this fact was found to be made out.

9. Both the accused aggrieved by the impugned

judgment and findings of their conviction and sentence have

questioned the legality thereof before this Court by filing these

appeals.

It has been alleged that learned trial Judge has

convicted the accused persons on the basis of the evidence

which was not at all admissible. The evidence has not been

appreciated in its right perspective and to the contrary the

findings based on surmises and conjectures. On the face of the

record the present is a case where two possible views emerges,

however, irrespective of the settled law that the view favourable

to the accused must be preferred has been ignored and the

benefit of doubt denied to them. Accused Rattan Chand had no

motive to commit the offence when he has been acquitted of the

charge framed against him under Section 376 IPC. He could

have not been convicted and sentenced for the commission of

offence punishable under Sections 302 and 404 of the Indian

Penal Code. His so called disclosure statement recorded after 4 th

or 5th day of his arrest after subjecting him to torture being

violative of Article 20(3) of Constitution of India could have not

been relied upon on while recording the findings of conviction

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against him. In order to remove all doubts the Investigating

Officer was required to investigate the matter scientifically and

.

photographed/video-graphed the recovery of ornaments

pursuant to the alleged disclosure statement made by accused

Rattan Chand. There was no evidence against accused Vikash

Puri that he is a Goldsmith. However, irrespective of it, a false

case that he received the stolen articles from his co-accused

Rattan Chand has been registered against him. It is, therefore,

submitted that the impugned judgment is neither legally nor

factually sustainable, the same has been sought to be quashed

and set aside.

10. On the completion of the record, we have heard Mr.

Anup Chitkara, Advocate assisted by Ms. Sheetal Vyas, Advocate

on behalf of the accused-appellants in both the appeals and Mr.

Narender Guleria, learned Additional Advocate General on behalf

of the respondent-State. Mr. Chitkara has argued with all

vehemence that there is no iota of evidence suggesting the

involvement of the accused in the commission of the alleged

offence. No legal and acceptable evidence is stated to have

come on record to establish that the deceased and accused had

acquaintance with each other. The scientific investigation and

the evidence collected in the shape of the detail of calls made

from Cell Number 98167-30076 on Cell Number 98169-67124

and vice-versa for want of certificate required to be tendered in

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terms of Section 65(B) of the Indian Evidence Act cannot be

relied upon. According to Mr. Chitkara the prosecution story that

.

accused Rattan Chand had committed sexual intercourse with

the deceased and when she demanded money from him killed

her by way of strangulating her with her own dupatta stood

discarded by learned trial Judge and the respondent-State has

not preferred any appeal against the findings of acquittal of

accused Rattan Chand under Section 376 IPC.

Sections 302 or 404 IPC is also made out against him as
r No case under

according to Mr. Chitkara the said accused had no occasion nor

any motive to have strangulated the deceased and killed her. He

had also no occasion to remove her ornaments allegedly nose

pin, ear rings and chain. There being no sign of struggle inside

the bushes where dead body allegedly was found lying, it is

argued that had the deceased been strangulated and killed there

she would have definitely struggled for her survival and thereby

left behind some evidence on the spot. That place according to

Mr. Chitkara, therefore, cannot be said to be the place of

occurrence by any stretch of imagination. It is also pointed out

that while cell Number 98167-30076 belong to PW24 Suresh

Kumar cell number 98169-67124 to that PW1 Bal Krishan, the

complainant. It is thus highly doubtful that the accused and

deceased used to talk with each other over these cell phones. In

order to remove all doubts in this regard, the voice test atleast

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of accused Rattan Chand would have been conducted and

compared with his voice if recorded while speaking to the

.

deceased over cell phone number 98169-67124. It has thus

been urged that the present is a case of no evidence and both

accused have been convicted and sentenced illegally by leaned

trial Court.

11. On the other hand, learned Additional Advocate

General has argued

that each and every incriminating

circumstance appearing in the prosecution evidence against both

accused lead to the only conclusion that it is accused Rattan

Chand who has killed the deceased and also removed her

ornaments. The evidence according to learned Additional

Advocate General further reveals that the ornaments were sold

by the principal accused to his co-accused Vikash Puri who

allegedly is a Goldsmith and running his shop in Chamba town.

Learned trial Judge, as such, has appreciated the evidence

available on record in nits right perspective and not committed

any illegality or irregularity while recording the findings of

conviction against both the accused.

12. Whether the circumstantial evidence produced by

the prosecution is sufficient to connect the accused with the

commission of offence or not is a question to be determined later

on, however, before that what are legal parameters to appreciate

the circumstantial evidence as we have enumerated in a

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judgment we recently delivered in Criminal Appeal No. 242 of

2016, titled Hikmat Bahadur versus State of Himachal

.

Pradesh and its connected appeal on September 19, 2017 need

to be discussed. The same reads as follows:

“…..Before the evidence produced by the
prosecution in this case is elaborate, the present
being a case of circumstantial evidence, the Court

seized of the matter has to appreciate such
evidence in the manner as legally required. We can
draw support in this regard from a judgment of
Division Bench of this Court in Sulender vs. State

of H.P., Latest HLJ 2014 (HP) 550. The relevant

extract of this judgment is re-produced here-as-
under:-

“21. It is well settled that in a case, which hinges

on circumstantial evidence, circumstances on
record must establish the guilt of the accused alone
and rule out the probabilities leading to

presumption of his innocence. The law is no more
res integra, because the Hon’ble Apex Court in

Hanumant Govind Nargundkar vs. State of M.P., AIR
1952 SC 343, has laid down the following

principles:

“It is well 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 be 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,

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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.”

22. The five golden principles, discussed and laid
down, again by Hon’ble Apex Court in Sharad
Birdhichand Sarda vs. State of Maharashtra, (1984)

4 SCC 116, are as follows:

(i) the circumstances from which the
conclusion of guilt is to be drawn must or should be
and not merely ‘may be’ fully established,

(ii) 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,

(iii) the circumstances should be of a
conclusive nature and tendency,

(iv) They should exclude every possible
hypothesis except the one to be proved, and

(v) 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.”…

21. Similar case is the ratio of judgment

rendered again by this Bench in State of Himachal

Pradesh vs. Rayia Urav @ Ajay, ILR 2016 (5)

(HP) 213. This judgment also reads as follows:-

“10. As noticed supra, there is no eye-witness of
the occurrence and as such, the present case

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hinges upon the circumstantial evidence. In such
like cases, as per the settled proposition of law, the

.

chain of circumstances appearing on record should

be complete in all respects so as to lead to the only
conclusion that it is accused alone who has
committed the offence. The conditions necessary

in order to enable the court to record the findings
of conviction against an offender on the basis of
circumstantial evidence have been detailed in a

judgment of this Court in Devinder Singh v. State
of H.P. 1990 (1) Shim. L.C. 82 which reads as
under:-

“1. The circumstances from which the conclusion of

guilt is to be drawn should be fully established.

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
guilt.

3. The circumstances should be of a conclusive
nature and tendency.

4. They should exclude every possible hypothesis
except the one to be proved.

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.

11. It has also been held by the Hon’ble Apex Court
in Akhilesh Halam v. State of Bihar 1995 Suppl.(3)
S.C.C. 357 that the prosecution is not only required
to prove each and every circumstance as relied
upon against the accused, but also that the chain

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of evidence furnished by those circumstances must
be so complete as not to leave any reasonable

.

ground for a conclusion consistent with the

innocence of the accused. The relevant portion of
this judgment is reproduced here-as-under:-
“…..It may be stated that the standard of proof

required to convict a person on circumstantial
evidence is now settled by a serious of
pronouncements of this Court. According to the

standard enunciated by this Court the
circumstances relied upon by the prosecution in
support of the case must not only by fully
established but the chain of evidence furnished by

those circumstances must be so complete as not to

leave any reasonable ground for as conclusion
consistent with the innocence of the accused. The
circumstances from which the conclusion of the

guilt of an accused is to be inferred, should be
conclusive nature and consistent only with the
hypothesis of the guilt of the accused and the

same should not be capable of being explained by
any other hypothesis, except the guilt of the

accused and when all the circumstances
cumulatively taken together lead to the only

irresistible conclusion that the accused is the
perpetrator of the crime.”…

12. The guilt or innocence of the accused has to be

determined in the light o the parameters laid down in the case

law cited supra as well as the evidence available on record. In

the case in hand learned trial Judge on perusal of the oral as well

as documentary evidence has culled out the following

circumstances allegedly emerges on record:

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1. The dead body of the deceased Gorkhi Devi was

seen on 9.5.2012 in the Khandera forest in a

.

condition mark of ligature on the neck,multiple coils

of Dupatta around the neck with multiple knots on

the back side of the neck.

2. The blood from the nose and mouth of the deceased

Gorkhi Devi was oozing out which was noticed by

3. to
Bal Krishan (PW-1) at 7.30 P.M. on 9.5.2012.

Dead body was seen by PW-1 Bal Krishan,PW-5

Dharam Chad, PW-7 Rajesh Kumar and PW-21

Jagdish her husband at the spot on the aforesaid

date and time.

4. The post mortem of the dead body of the deceased

Ex.PW11/B shows that she was strangulated with

the Dupatta which leads to azphyxia, shock and

death.

5. Accused person was arrested on 13.5.2012 and from

his possession in Mobile phone Lawa with dual SIM

bearing NO. 9816730076 and 9805711328 having

IMEI No. 91113351397225 were recovered from the

possession of the accused vide memo Ex. PW6/B in

the presence of PW6 Mohan Lal and PW7 Rajesh

Kumar.

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6. SIM No. 9816730076 which was in the cell recovered

from the possession of the accused person was

.

constantly used by the accused person for talking

with the telephone No. 9816967124 of the deceased

Gorkhi Devi given to her by her son complainant Bal

Krishan (PW1).

7. Call details Ex.PW14/Band Ex.PW14/C of the

numbers 9817967124 and 9816730076 furnished

by the Nodal Officer Bharti Airtel Ltd vide letter Ex.

PW14/A and the letters Ex.PW14/E and F shows the

location of these phones used and also the

addressed of the persons in whose name the SIMs

were issued.

8. Call details of both aforesaid numbers shows that

accused Rattan Chand was directly in contact with

the deceased Gorkhi Devi on her mobile phone.

Even on the date of occurrence accused called her

on her mobile no. 9816968124 at 7.16.59 hours and

they talk about 290 second and thereafter he again

made call on her mobile No. at about 7.45.05 and

they talk about 19 seconds and third call on her

mobile was at about 10.10.59 and they talk about

45 second.

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9. Presence of accused person in and around the place

of incidence.

.

10. The disclosure statement of accused person under

Section 27 of the Indian Evidence Act EX. PW9/B

deposed in the presence of HC Virender Singh

(PW9)and C. Rumel Singh vide which accused has

stated that he can make the recovery of articles

effected stolen by him such as one nose pin, one

pair of ear rings (gold) and one silver necklace sold

to a jeweller at Dogra Bazar.

11. On the basis of th statement under Section 27 of the

Indian Evidence Act of the accused person the

recovery of the golden and silver ornaments of the

deceased were made effected vide memo Ex.

PW12/A in the presence of Kamal Dev (PW13) and C.

Devi Singh (PW12).

12. Golden and silver ornaments of the deceased Gorkhi

Devi recovered from the shop of co-accused Vikash

Puri identified by the husband of the deceased

Jagdish (PW21).

13. During the daytime of the date of occurrence PW5

while he was collected the stones in the Khandera

forest near his house has seen the accused walking

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towards the spot where lateron dead body of

deceased Gorkhi Devi was recovered.

.

14. Identification of the spot where the accused Rattan

Chand committed the murder of Gorkhi Devi was

given by the accused Rattan Chand and memo of

identification Ex.PW5/A was prepared in the

presence of Dharam Chand (PW5) and Rajesh Kumar

15.
(PW7).

Carbunculus reddish brown in colour of traumatic

injury over the epigastric area of the accused person

and as per the Dr. Vishal Thakur (PW22) the hairs on

the chest of the accused person appears to have

been plucked during the struggle by the other

person connect the accused person directly in the

alleged offence.

13. As a matter of fact, the above circumstances at serial

Nos. 1 to 4 and 7 not implicates accused Rattan Chand or for that

matter accused Vikash Puri by any stretch of imagination for the

reasons that the evidence as has come on record by way of the

testimony of PW1 Bal Krishan, his brother Dharam Chand PW5,

father Jagdish PW21, Uncle (Taya) Mohan Lal PW6 and Rajesh

Kumar PW7 supported by the photographs Ext.PW1/B-1 to

Ext.PW1/B-6 reveal that Gorkhi Devi was lying dead in Khanera

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forest and ligature around her neck is visible there in the

photographs. The team of doctors which has conducted the post

.

mortem of the dead body were also of the opinion that she died

due to strangulation which led to asphyxia and shock also. The

post mortem report is Ext.PW11/B. The same stand proved from

the statement of Dr. Harsh Mahajan PW11, one of the members

of the team of doctors which has conducted the post mortem. In

the further opinion of the doctors the deceased could have been

strangulated with dupatta Ext.P11. PW1 Bal Krishan was present

on the spot as his statement was recorded by Sub Inspector and

the I.O. of this case PW23 Darshan Singh. Nothing, however, has

come in the statement of PW23 that Jagdish PW21 the husband

of the deceased and Dharam Chand PW5, her another son were

also present there. Though PW23 has stated in his cross-

examination that the villagers had gathered on the spot,

however, when specifically asked about the presence of PW21

Jagdish, the husband of the deceased, he expressed his inability

to tell. Anyhow, even if it is believed to be true that PW5

Dharam Chand, PW7 Rajesh Kumar and PW21 Jagdish were also

present on the spot where the dead body was lying not at all

connect accused Rattan Chand with the commission of the

alleged offence. The call detail reports (CDR) are Ext.PW14/B

and Ext.PW14/C made from cell numbers 98167-30076 and

98169-67124. As per these documents the calls from cell

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22

number 98167-30076 on cell number 98169-67124 have been

made repeatedly on different dates. The duration of the calls is

.

also in several minutes. PW14 Devinder Verma, Nodal Officer,

Bharti Airtel, however, not tendered in evidence certificate in

terms of provisions contained under Section 65(B)(4) of the

Evidence Act. The Apex Court in Anvar P.V. vs. P.K. Basheer

and others, AIR 2015 SCC 180 has held that electronic record

“14.

r to
though is admissible in evidence, however, subject to fulfillment

of certain conditions. This judgment reads as follow:

Under Section 65B(4) of the Evidence

Act, if it is desired to give a statement 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.

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23

15. 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, 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.

16. 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

examiner of electronic evidence.

17. 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.”

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24

14. Similar is the ratio of the judgment again that of the

Apex Court in Shafhi Mohammad versus State of Himachal

.

Pradesh, (2018) 2 Supreme Court Cases 801. This judgment

also reads as follow:

“24. We may, however, also refer to
judgment of this Court in Anvar P.V. v. P.K.

Basheer and Others, (2014) 10 SCC

473,delivered by a Three-Judge Bench. In the
said judgment in para 24 it was observed that
electronic evidence by way of primary

evidence was covered by Section 62 of the

Evidence Act to which procedure of Section
65B of the Evidence Act was not admissible.

However, for the secondary evidence,

procedure of Section 65B of the Evidence Act
was required to be followed and a contrary
view taken in Navjot Sandh (supra) that

secondary evidence of electronic record could

be covered under Sections 63 and 65 of the
Evidence Act, was not correct. There are,
however, observations in para 14 to the effect

that electronic record can be proved only as
per Section 65B of the Evidence Act.

25. Though in view of Three-Judge Bench
judgments in Tomaso Bruno and Ram Singh
(supra), it can be safely held that electronic
evidence is admissible and provisions under
Sections 65A and 65B of the Evidence Act are
by way of a clarification and are procedural
provisions. If the electronic evidence is
authentic and relevant the same can certainly

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25

be admitted subject to the Court being
satisfied about its authenticity and procedure

.

for its admissibility may depend on fact

situation such as whether the person
producing such evidence is in a position to

furnish certificate under Section 65B(4).

26. Sections 65A and 65B of the Evidence
Act, 1872 cannot beheld to be a complete
code on the subject. In Anvar P.V.(supra), this

Court in para 24 clarified that primary
evidence of electronic record was not covered
under Sections 65A and65B of the Evidence

Act. Primary evidence is the document

produced before Court and the expression
“document” is defined in Section 3 of the
Evidence Act to mean any matter expressed

or described upon any substance by means of
letters, figures or marks, or by more than one

of those means, intended to be used, or which
may be used, for the purpose of recording

that matter……..

29. The applicability of procedural

requirement under Section65B(4) of the

Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is
produced by a person who is in a position to
produce such certificate being in control of
the said device and not of the opposite party.

In a case where electronic evidence is
produced by a party who is not in possession
of a device, applicability of Sections 63and 65
of the Evidence Act cannot be held to be

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26

excluded. In such case, procedure under the
said Sections can certainly be invoked. If this

.

is not so permitted, it will be denial of justice

to the person who is in possession of
authentic evidence/witness but on account of

manner of proving, such9document is kept
out of consideration by the court in absence
of certificate under Section 65B(4) of the
Evidence Act, which party producing cannot

possibly secure. Thus, requirement of
certificate under Section 65B(4) is not always
mandatory.”

15. Therefore, mere tendering the call detail reports

Ext.PW14/B and Ext.PW14/C is not sufficient to discharge the

onus that the same constitute primary evidence which is legally

admissible. Therefore, the circumstances at serial Nos. 1 to 4 and

7 cannot said to be incriminating or implicate accused Rattan

Chand by any stretch of imagination nor connect him with the

commission of offence. True it is that Gorkhi Devi has died in an

unnatural death, however, it is accused Rattan Chand alone who

has killed her in the manner as claimed by the prosecution and

removed her golden nose pin, golden ear rings and silver chain

from her person, nothing can be said from the above said

circumstances which have been relied upon by learned trial

Judge against him.

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27

16. As a matter of fact, only the following circumstances

emerges from the prosecution evidence against accused Rattan

.

Chand and his co-accused Vikash Puri:-

i) Accused Rattan Chand had acquaintances with

deceased Gorkhi and they both were also in living

relations and as a consequence thereof the accused

used to commit sexual intercourse with her.

ii)

Accused Rattan Chand was lawful subscriber of Cell

No. 98167-30076 and used to speak with the

deceased over cell number 98169-67124 which

though was in the name of her son PW1 Bal Krishan,

however, given to her for being used.

Iii) On the fateful day i.e. 9.5.2012 also the accused

had made calls to the deceased in the morning

through cell number 98167-30076 on cell number

98169-67124 and as a consequence thereof came to

meet her in Khanera forest.

iv) Accused Rattan Chand boarded private bus of

‘Mushtaq Bus Service’ from Sultanpur and alighted

from the bus at Sundla. Also that subsequently he

boarded bus of ‘Mustaq Bus Service’ again at Sundla

and alighted at Dudhedi.

v) Accused Rattan Chand thereafter met the deceased

and committed sexual intercourse with her and on

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28

her demand for money strangulated her with her

own dupatta and thereby caused her death.

.

vi) He removed golden nose pin Ex.P19, golden ear

rings Ext.P20 and sliver necklace Ext.P21 from her

person and sold to his co-accused Vikash Puri in his

shop at Mohalla Lahore Gali, Chougan Chamba town,

H.P.

vii)

Accused Vikash Puri is a goldsmith by profession and

running his shop at Mohalla Lahore Gali, Chougan

Chamba and received the jewellary i.e. nose pin, ear

rings and chain of the deceased from accused Rattan

Chand on payment of consideration.

17. It is now to be seen from the evidence available on

record that the circumstances so pressed by the prosecution in

service against both the accused stood proved beyond all

reasonable doubt and the chain of circumstances is complete so

as not to leave any reasonable ground for the conclusion

consistence with their innocence and rather that in all

probabilities the charge against both of them stood established.

Circumstance No.I.

18. If coming to the first circumstance pressed in service

by the prosecution against accused, there is no iota of evidence

to show that the accused had acquittance with the deceased.

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29

The deceased belongs to village Sukrethi, Tehsil Salooni, district

Chamba whereas accused Rattan Chand was resident of village

.

Uchhanu Tehsil Salooni, district Chamba, of course Tehsil same

i.e. Salooni. Nothing has come on record as to how they both

were acquainted with each other. None of the witnesses have

uttered even a single word qua this aspect of the matter.

Similarly, there is also no iota of evidence to show that they both

r to
were in living relations and as a consequence thereof enjoying

sex with each other. The mere assertion that accused Rattan

Chand had been speaking with the deceased over her cell

number 98167-67124 through his cell number 98167-30076 for

the reasons to be discussed hereinafter and also recorded

hereinabove are not at all proved nor could have been relied

upon against him by learned trial Court. Therefore, there is no

legal and acceptable evidence to show that accused Rattan

Chand had acquittance with deceased Gorkhi. Also that they

were in living relations and having physical relations also with

each other.

Circumstance No.II III.

19. Now if coming to the second and third circumstance,

admittedly cell number 98167-30076 is in the name of PW24

Suresh Kumar. Though PW24 while in the witness box has

categorically stated that he never got issued this cell phone

number in his name nor ever used the same. PW10 Ishwar

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30

Kumar in whose house accused Rattan Chand resided as tenant

during October, November, 2011 has also stated that said

.

accused used to call him through cell phone number 98167-

30076. However, as per his version in cross-examination he has

not retained any record of calls so made by accused Rattan

Chand to him. PW3 Vinod Kumar has also stated that accused

Rattan Chand had been speaking through his cell number 98167-

30076.

However, in his cross examination this witness has

admitted that cell number of the accused is 98057-11328 and

not 98167-30076. PW14 Devinder Verma, Nodal Officer, Bharti

Airtel Limited has stated that cell number 98167-30076 as per

the record is in the name of Suresh Kumar (PW24). In view of

such evidence available on record it cannot be said with all

exactness and accuracy that cell number 98167-30076 was

under the use and occupation of accused Rattan Chand and that

it is he alone made calls therefrom to the deceased and for that

matter to his landlord Ishwar Kumar PW10 or PW3 Vinod Kumar.

20. Now if coming to the prosecution case qua SIM

Number 98167-30076 allegedly extracted from mobile phone set

of accused Rattan Chand after his arrest in the presence of PW6

Mohan Lal and PW7 Rajesh nothing of the sort has come in the

statements of the said witnesses that the SIM was extracted from

the mobile set recovered from the accused. According to them

they were not knowing that the SIM extracted from the set was

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31

bearing number 98167-30076 and rather as per the testimony of

Pw6 he had noticed the number of the SIM 98167-30076 when it

.

was being recorded by the I.O. in the papers which he had

reduced into writing. Therefore, it cannot be inferred from the

statements of either PW6 or PW7 that SIM number 98167-30076

was extracted from the mobile phone set allegedly recovered

from accused Rattan Chand. Even the recovery of the mobile

set having taken place in the manner as claimed by the

prosecution has also not been established because there is doubt

even about the case of the prosecution qua the date and time of

the arrest of the said accused. In view of the evidence qua this

aspect of the matter produced by the prosecution itself where

two views have emerges on record and as per the settled legal

principles the view in criminal administration of justice

favourable to the accused has to be given preference over and

above the view in favour of the prosecution. We may take

support in this regard from the judgments of the Hon’ble Apex

Court in T. Subramanian versus State of T. N., (2006) 1

Supreme Court Cases 401 and State of Rajsathan versus

Islam Others, (2011) 6 Supreme Court Cases, 343.

21. Interestingly enough, mobile phone number 98169-

67124 was in the name of PW1 Bal Krishan and not in that of his

mother deceased Gorkhi. Whether he had given the same to her

for use is again doubtful because his sole testimony in this

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32

regard cannot taken as a gospel truth. As a matter of fact, the

recorded audio version in respect of the call made from cell

.

number 98167-30076 over cell number 98169-67124 should

have been taken to establish beyond all reasonable doubts that

such version was in the voice of the accused and the deceased.

However, no scientific investigation in this regard has been

conducted. It is, therefore, difficult to believe that the calls from

deceased to each other.

cell number 98167-30076 over cell number 98169-67124 and

vice-versa have been made by accused Rattan Chand and the

Learned trial Judge has ignored this

vital aspect of the matter and placed reliance on the prosecution

evidence including the call detail reports Ext.PW14/B and

Ext.PW14/C while recording findings of conviction against the

accused on having been swayed with the factum of the death of

Gorkhi, a young lady. Therefore, there is no legal and

acceptable evidence to arrive at a conclusion that cell number

98167-30076 was in the exclusive possession and use of accused

Rattan Chand and that he used to speak with the deceased for

quite pretty long time. It is also not established that they were

acquainted with each other and on 9.5.2012 also they settled

their meeting in the forest by speaking over cell phone with each

other. The evidence qua recovery of Sim No. 98167-30076 from

Mobile set allegedly taken into possession from accused after his

arrest in the presence of PW-6 Mohan and his son PW-7 Rajesh

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33

Kumar hardly inspires any confidence as the witnesses being

brother-in-law (Jeth) and nephew of the deceased, were in her

.

relation, hence interested in the success of the prosecution case.

22. The prosecution case that the accused committed

sexual intercourse with the deceased and that when she

demanded money strangulated her with her own dupatta and

thereby caused her death even has been discarded by learned

r to
trial Court also while acquitting accused Rattan Chand of the

charge under Section 376 IPC. The respondent-State has not

assailed the findings of acquittal so recorded by learned trial

Court any further in this Court by way of filing separate appeal.

This also substantiate the view of the matter taken by this Court.

Therefore, both alleged incriminating circumstances appearing in

the prosecution case against accused Rattan Chand has also not

been proved from the evidence available on record beyond all

reasonable doubt.

Circumstance No.IV.

23. Now if coming to the incriminating circumstance at

serial Number (iv) noted hereinabove, we fail to understand as to

how the same could have been pressed against accused Rattan

Chand even if it is believed that he boarded the bus of “Mushtaq

Bus Service” firstly at Sultanpur and alighted therefrom at

Sundla and subsequently another bus of the same bus service at

Sundla and alighted there from at a place namely Dudhedi and

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34

after having alighted from the bus at Dudhedi he went to forest

Khanera where the deceased was already present and waiting for

.

him. PW1 Bal Krishan though has stated in his statement under

Section 154 Cr.P.C. (Ext.PW1/A) that while living to his maternal

aunt house alongwith his family for participating the celebration

of birthday of someone there, his mother deceased Gorkhi told

that she would be going to forest for collecting Khasrod (wild

however,

vegetable) during day time. However, such story seems to have

been engineered and fabricated to complete the chain of

circumstances,

unsuccessfully because his bald

statement in this regard cannot be believed as a gospel truth.

Otherwise also, there seems to be no grain of truth in this part of

the statement he made for the reasons that Gorkhi had no

occasion to have apprised him that during day time she should

be going to forest to collect the wild vegetable being a matter of

routine in the case of a house wife. PW-1 as such has rightly

admitted that other villagers also used to go to the forest to

collect vegetables. The place where the dead body was found

lying was not very far away from the house of the complainant

party being only one kilometer away therefrom as has come in

the statement of PW1. In this view of the matter also the

deceased had no occasion to tell PW-1 that during day time she

will to to bring Khasrod from the forest as it was nearby situated.

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35

24. Even had the accused after alighting from the bus

at Dudhedi went to the forest, the meeting point they allegedly

.

fixed while speaking over cell phone in the morning on that day

he would have been seen while going there by someone. In view

of the apprehension of other villagers may have also visited the

forest to collect the wild vegetable neither the deceased would

have taken the risk of allowing herself to be exposed sexually by

the said accused nor could he have murdered her in the manner

as claimed by the prosecution that too when in living relation

with her and also if in love with each other. No sane person is

expected to murder his own paramour on the demand of money

that too after he having already enjoyed sex with her. In the

event of shehaving demanded money from him in normal course

he would have left her on the spot itself and left for his abode. No

doubt, the another son of the deceased Dharam Chand has

stated that accused Rattan Chand was noticed by him around

3:00 P.M. on that day while going towards the place where the

dead body was found lying later on. However, as per his own

admission in cross-examination he did not disclose this fact to

anyone till 13.5.2012 the day when his statement for the first

time was recorded by the police. Surprisingly enough, he having

seen the accused going towards the place where the dead body

was lying an important fact for the purpose of this case could

have not been concealed by him from others for such a long time

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36

and rather disclosed at the earliest available opportunity to do

so. Not only this, but in his statement recorded under Section

.

161 Cr.P.C. on 13.5.2012 this fact does not find mention.

Therefore, he has not seen accused Rattan Chand going towards

forest where the dead body was lying and the story to this fact

has also been fabricated and engineered later on to implicate the

accused falsely.

25.

True it is that as per the testimony of PW 4 Surinder

Kumar, the conductor of the bus accused Rattan Chand boarded

the bus from Sultanpur and alighted therefrom at Sundla and as

per that of PW8 Sanjesh Kumar, the conductor of the same bus

service he later on boarded the bus at Salooni and alighted at

Dudhedi. However, according to PW4, twenty five other

passengers were also travelling in that bus, whereas according

to PW8, fifteen other passengers were travelling in the bus which

was being conducted by him at that time. In their cross-

examination they both have expressed their inability to tell

names of such other passengers travelling in the bus. No doubt,

PW8 has given the names of two passengers which according to

him were travelling regularly in the said bus. Therefore, when

both PW-7 and PW-8 could not recollect the names of other

passengers who were travelling in the buses being conducted by

them on that day how they could have recollect the name of

accused Rattan Chand when he was not travelling regularly in

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37

these buses. Therefore, PWs 4 and 8 also seems to be stock

witnesses and have deposed falsely at the behest of the police

.

to the reasons best known to them.

26. It is thus not proved at all that the accused boarded

buses of “Mushtaq Bus Service” on that day from two different

places and came to meet the deceased. Learned trial Judge was,

therefore, not justified in placing reliance on this aspect of the

matter also.

27.

r to
Circumstance No.V.

While discussing the incriminating circumstance at

serial Number (iv) and recording findings thereon hereinabove,

we have already observed that accused Rattan Chand has

neither boarded the buses of Mushtaq Bus Services at two

different places nor met the deceased on that day. Also that he

never contacted her on that day over cell phone and fixed the

place of his meeting with her. Therefore, the question does not

arise that he committed sexual intercourse with her on that day.

Also that she demanded money from him and it is for this reason

he strangulated her with her own dupatta and caused her death

thereby, we have already observed that had he been in love with

the deceased would have never killed her merely on the demand

of money by her from him because by that time as per the case

of the prosecution itself he has already enjoyed sex with her,

therefore, would have left the place leaving her alone behind.

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38

Otherwise also the prosecution has failed to prove that accused

Rattan Chand had subjected her to sexual intercourse on that

.

day. It is for this reason he has been acquitted of the charge

under Section 376 IPC. The story, therefore, in this regard has

also been engineered and fabricated. Learned trial Judge has

gravely erred while placing reliance upon such circumstances

which were not at all proved on record.

28. to
Circumstance No.VI.

The next circumstance pertains to removal of golden

nose pin, golden ear rings and silver chain from the person of the

deceased and selling the same to his co-accused Vikash Puri.

This circumstance could have not been used against accused

Rattan Chand and for that matter accused Vikash Puri also for

the reasons that the same belongs to the deceased alone and

none else. No legal and acceptable evidence has either been

collected or brought on record. The ornaments were not got

identified from someone including Bal Krishan PW1 the son of

deceased and PW21 her husband who could have seen the same

borne by her in ears, nose or neck. Even PW21 while in the

witness box has also not stated that the ornaments belongs to

his wife. The witnesses to the recovery of the ornaments are

PW12 LHC Devi Chand and PW13 Kamal Dev. Though PW12

while in the witness box has stated about the recovery of the

ornaments from the shop of goldsmith situated in Dogra Bazar,

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39

Chamba town in his presence. However, PW13 has not supported

the prosecution case in this regard at all and rather turned

.

hostile. He has been subjected to lengthy cross examination by

learned Public Prosecutor, however, nothing material lending

support to the prosecution case could be elicited therefrom. On

the other hand, the contradictory statements of PWs 12 and 13

qua this aspect of the matter has casted serious doubts qua this

part of the prosecution story. Therefore, in view of the judgment

of the Apex Court cited hereinabove, the benefit of doubt in this

regard should have been given to accused Rattan Chand and this

circumstance not used against him.

Circumstance No.VII.

29. Interestingly enough, no legal and acceptable

evidence has come on record that accused Vikash Puri is a

Goldsmith by profession and running his shop situated at Mohalla

Lahore Gali, Chougan, Chamba town. On the other hand, as per

his own admission in his statement recorded under Section 313

Cr.P.C. he is JSW by profession and it is his father who is a

Goldsmith and running the shop in question. Such version of the

accused is nearer to the factual position as there is no evidence

to show that he was a Goldsmith and that it is he who was

running the said shop from where the recovery was made.

Otherwise also, as per the own admission of the I.O. PW23 the

ornaments Ex.P19, Ext.P20 and Ext.P21 are normally available

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40

with other ladies also. Being so, it cannot be said that the

ornaments were of the deceased and that the same were

.

removed by accused Rattan Chand from her person after causing

her death and sold to his co-accused Vikash Puri. Therefore,

learned trial Judge has committed illegality while using such

circumstance against the accused.

30. In view of the discussion hereinabove, we are

satisfied that the present is a case of no evidence against the

accused persons. Whatever evidence having come on record by

way of the statements of the interested witnesses i.e. PW1 Bal

Krishan the complainant, PW5, Dharam Chand, PW21 Jagdish and

PW6 Mohan Lal as well as PW7 Rajesh Kumar cannot be relied

upon as they all being closely related with the deceased were

interested in the success of the prosecution case. Learned trial

Court has not appreciated the evidence available on record in its

right perspective and to the contrary has recorded the findings of

conviction against both the accused on the basis of conjectures

and surmises. Such an approach has certainly resulted in mis-

carriage of justice to the accused. They both are innocent,

however, learned trial Judge has convicted and sentenced them

while placing reliance on highly inadmissible evidence. The

impugned judgment as such is neither legally nor factually

sustainable. We, therefore, quash and set aside the same.

Consequently, accused Rattan Chand is acquitted of the charge

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41

framed against him under Sections 302 and 404 of the Indian

Penal Code. His co-accused Vikash Puri is also acquitted of the

.

charge framed under Section 411 of the Code. Accused Vikash

Puri is already on bail. In view of his acquittal of the charge

framed against him, personal bonds executed by him will stand

cancelled and surety discharged.

31. As regard accused Rattan Chand, he is serving out

the sentence. r He be released forthwith, if not required in any

other case, however, subject to his furnishing personal bond in

the sum of `25,000/- with one surety in the like amount to the

satisfaction of learned Additional Sessions Judge, Chamba,

undertaking specifically therein that in the event of an appeal is

preferred against this judgment, he shall appear in the Hon’ble

Supreme Court.

32. Both appeals are disposed of accordingly.

(Dharam Chand Chaudhary),
Judge.

(Chander Bhusan Barowalia),
March 28, 2019. Judge.

( vs)

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