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HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
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Cr. Appeal No.242 of 2016 alongwith
Cr. Appeal No.215 of 2016 P Reserved on: 20.06.2017 . Decided on: September 19 H , 2017 Cr. Appeal No.242 of 2016:
Hikmat Bahadur o .…
f......Appellant Versus
State of Himachal Pradesh rt ........Respondent ___________________________ u _____________________________ Cr. Appeal No.215 of 2016: Narain Singh Chauhan o .…......Appellant Versus State of Himac h C al Pradesh ........Respondent Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, J. The g Hon' h ble Mr. Justice Vivek Singh Thakur, J. W i hether approved for reporting? 1 Yes. H Cr. Appeal No.242 of 2016: For the appellant : Mr. S.S. Rathore, Advocate. For the respondent : Mr. D.S. Nainta & Mr. Virender Verma, Additional Advocate Generals.
Cr. Appeal No.215 of 2016:
For the appellant : Mr. Surender Sharma, Advocate.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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For the respondent : Mr. D.S. Nainta & Mr. Virender Verma, Additional Advocate Generals. .
P
Dharam Chand Chaudhary, J. .
This judgment shall dispose of the f pre sen H t appeal and also the connected one, i.e. Criminal Appeal No.215 of 2016, having arisen from the judgment dated 02 o .05.2016, passed in
Sessions Trial No.38-S/7 of 2017, r pas t sed by learned Additional Sessions Judge-II, Shimla, wh u ereby both convicts-appellants, i.e. Hikmat Bahadur and Nar o ain Singh Chauhan (hereinafter are called as accused No.1 and accused No.2), have been convicted and sentenced. Acc use C d No.1 Hikmat Bahadur, in the present appeal, has been h convicted for commission of offence punishable under Sec g tion 302 of Indian Penal Code and sentenced to undergo r i igorous imprisonment for life and to pay Rs.1,00,000/- as fine
H and in default of payment of fine to undergo simple imprisonment for three years, whereas accused No.2 Narain Singh Chauhan, in the connected appeal, has been convicted for commission of offence punishable under Section 25 of Indian Arms Act and
sentenced to undergo rigorous imprisonment for three years and
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also to pay Rs.25,000/- as fine and in default of payment of fine .
to undergo simple imprisonment for six months.
2. PW-12 Mast Ram belongs to village Dhawandli, Teh . silP
Chopal, District Shimla. He had two apple orchards i.e H . one at village Dhawandli and the other at Pouran. In ord f er t o look after his orchard at village Pouran, deceased Di o l Bahadur, a Nepali National, was deployed as Chowkidar t on payment of Rs.2,500/- per month. r
3. On 18.05.2014, PW u -12 Mast Ram, while on his way to Chandigarh for medical o check up of his son, around 11.30 a.m., he received a te C lephonic call from his neighbour Narain Singh Chauhan h (convict-appellant in connected appeal), who informed that g deceased Dil Bahadur and accused No.1 Hikmat Bahadur had q i uarrelled with each-other. On this, he called deceased Dil H Bahadur who informed that accused No.1 has fired a gunshot on him and thereby caused bullet injury to him. On hearing so, PW- 12 Mast Ram, immediately informed his brother-in-law PW-1 Satish Kumar and asked him to visit the spot. PW-1 Satish
Kumar, in turn, went to the spot and informed PW-12 that
deceased Dil Bahadur had succumbed to the injuries inflicted to
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him. PW-12 Mast Ram allegedly informed the police of Police .
Station, Nerwa, also at about 12.30 p.m. over telephone. After arrival of PW-1 Satish Kumar, alongwith one Mr. Sanjeev, at t . heP
spot, a police party headed by PW-23, SI/SHO Ja sb H ir Singh, comprising of HC Sant Ram, HHC Virender Chan f d, HHC/Driver Madan Lal and PW-11 Constable Sameer Kan o t, rushed to the spot
in official vehicle. Deceased Dil Baha t dur was lying in a critical
condition. He had received gunshot r injury and was lying in pool of
blood. The villagers had also u gathered by that time on the spot.
The deceased though w o as being shifted to hospital, however, he
succumbed to th C e injuries he received on the way to hospital. The state h ment Ext.PW-1/A of PW-1 Satish Kumar was recorded und g er Section 154 of the Code of Criminal Procedure. The Rukka E i xt.PW-11/A was prepared and handed over to PW-11 Constable H Sameer Kant for being taken to Police Station for the purpose of registration of case. PW-11 Constable Sameer Kant has handed over the Rukka to PW-18 LHC Shamim, the then MHC in Police Station, Nerwa. On registration of F.I.R. Ext.PW-16/A, the file was
handed-over to PW-11 Constable Sameer Kant, who has taken the
same to the Investigating Officer. The Investigating Officer PW-
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23 SI Jasbir Singh, has prepared the site plan of the place of .
occurrence Ext.PW-23/A. The photographs Ext.PW-15/A-1 to Ext.PW-15/A-24 were clicked. The blood stained soil and gra . ssP
from the place of occurrence were taken into poss H ession in presence of PW-1 Satish Kumar and Sanjeev Kum f ar vide seizure memo Ext.PW-1/C. The sample of seal E xt o .PW-1/B was drawn separately. The dead body was brou t ght to CHC Nerwa. The inquest papers Ext.PW-23/B were r filled in. Accused No.1 was
arrested and the dead body wa u s kept in the dead-house.
4. On the next o day, i.e. 19.05.2014, PW-16 ASI Kalyan Singh and PW -6 C LHC Suresh were deputed to Indira Gandhi Medical C h ollege, Shimla, for getting the post mortem of the dead bod g y conducted. PW-16 ASI Kalyan Singh had clicked the p i hotographs Ext.PW-15/A-3 and Ext.PW-15/A-4 with his cell H phone. After getting the post mortem of the dead body conducted vide post mortem examination report Ext.PW-5/C, the same was handed over to one Virender for performing last rites.
5. On 20.05.2014, accused No.1 Hikmat Bahadur, allegedly made a disclosure statement Ext.PW-18/B that he has hided the gun in a field nearby the spot and Drat inside his Dera
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and that it is he who alone who can get the same, recovered in .
the presence of PW-18 LHC Shamim and PW-20 HHC Virender Sharma. The Investigating Officer PW-23, SI Jasbir Sin . ghP
alongwith HHC Virender Sharma, Constable Sunil an H d Driver Madan, accompanied by the witnesses, went to the f spot. On the identification given by the accused, the gu n o was recovered from "Maind /boundary" of field, which was k t ept inside the grass. The identification memo Ext.PW-2/D was r prepared in presence of PW-
2 Raghuvir Singh and Bir Sin u gh. The Khaka of gun Ext.PW-2/A was also prepared. Th o e photographs Ext.PW-2/J to Ext.PW-2/L were clicked. The site plan of the place of recovery Ext.PW-23/C was prep h ared. T
Che gun was thereafter sealed and taken into pos g session vide seizure memo Ext.PW-2/B. The 'Drat' found to b i e hidden by the accused below the pillow cover in his 'Dera' was H also taken into possession vide recovery memo Ext.PW-2/F. The identification memo Ext.PW-2/G was again prepared in presence of PW-2 Raghuvir Singh and Bir Singh. The Khaka of 'Drat' Ext.PW-2/E was separately prepared.
6. The case property was deposited with MHC for safe custody in Police Malkhana. All the incriminating articles were
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sent to Forensic Science Laboratory, Junga, through PW-17 .
Constable Rajneesh vide R.C.24/2014 Ext.PW-18/E for chemic . al P analysis. The application Ext.PW-19/A was made to Naib Tehsildar, Nerwa, for conducting the demarcation of the H place of
occurrence. The demarcation was conducted a f nd the report
Ext.PW-8/A obtained alongwith copy of Jam o abandi Ext.PW-8/B and copy of Akas Sajra Ext.PW-8/C. t On receipt of the reports Ext.PW-23/F and Ext.PW-23/G of r Chemical Examiner, Forensic
Science Laboratory, Junga, t u he same were also added in the
police file. o
7. On c C ompletion of the investigation, report under Section 1 h 73 of Code of Criminal Procedure, was filed in the lear g ned Court below. Learned trial Judge, on taking into c i onsideration the same and also hearing learned Public Prosecutor H as well as learned defence counsel and on finding a case for commission of offence punishable under Section 302 of Indian Penal Code, having been made out against accused No.1 Hikmat Bahadur, whereas a case for commission of offence punishable
under Sections 25 and 27 of the Indian Arms Act against accused
No.2 Narain Singh Chauhan, charge against each of them was
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framed accordingly. Both the accused, however, pleaded not .
guilty and claimed trial.
8. The prosecution in order to sustain charge again . stP
the accused persons, have examined twenty three wit H nesses in all. f
9. The star prosecution witne o sses, as noticed hereinabove, are: PW-1 Satish Kuma t r a t whose instance FIR Ext.PW-16/A came to be registered r against the accused persons. PW-2 Raghuvir Singh is a witn u ess to recovery of gun Ext.PW-2/B and 'Drat' Ext.PW-2/F. o PW-3 Mahavir Kashyap, who is Junior Engineer, PIU Sub Division, HPPWD, Nerwa, who on the request of Police h vide Ex
Ct.PW-3/A, prepared the scale map Ext.PW-3/B. PW g -4 Raj Kumar, Proprietor Raj Photo Studio, Nerwa, has not s i upported the prosecution case and rather turned hostile. PW-5 H Dr. Dhruv Gupta, Registrar, Department of Medicines, IGMC, Shimla, has proved the post mortem report Ext.PW-5/C. PW-6 LHC Suresh Kumar, accompanied by PW-16 ASI Kalyan Singh, got conducted the post mortem of the dead body in IGMC, Shimla.
PW-7 Rakesh Kumar, claims that he also accompanied PW-1
Satish Kumar to the spot where on asking the deceased as to
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what happened to him, he informed that accused No.1 fired a .
gunshot and caused injury on his person. PW-11 Constable Sameer Kant accompanied the Investigating Officer PW-23 . SIP
Jasbir Singh to the spot and taken the Rukka Ext.PW-11 H /A to the Police Station for registration of case. PW-12 M f as t Ram, the owner of the orchard where deceased Dil B ah o adur was working as Chowkidar, has set the machinery in m t otion on coming to know about the death of his Chowkidar r from his brother-in-law PW-1
Satish Kumar. PW-13 Raj K u umari, is widow of deceased Dil
Bahadur. PW-23, SI Jas o bir Singh is the Investigating Officer. PW-
8 Jai Ram, Sr. Assistant, in the office of S.D.M., Chopal, has proved th h e de ma
Crcation report Ext.PW-8/A, Jamabandi Ext.PW- 8/B g and Akas Sajra Ext.PW-8/C. PW-9 Bhajan Dass, Field K i anungo, has prepared the demarcation report Ext.PW-8/A. PW- H 10 Mela Ram is Patwari, who assisted PW-9 Bhajan Dass in conducting the demarcation Ext.PW-8/A. PW-14 Dr. Sangeet Dhillon, had conducted the post mortem of the dead body of deceased Dil Bahadur and proved the report Ext.PW5/C. PW-15
Vivek @ Vickey, had developed photographs Ext.PW-15/A-1 to
Ext.PW-15/A-24 and also prepared C.D. Ext.PW-15/B-1 & Ext.PW-
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15/B-2. PW-17 Constable Rajneesh and PW-18 LHC Shamim, are .
witnesses to the disclosure statement Ext.PW-18/B. PW-16 ASI Kalyan Singh, had obtained the demarcation and conducted t . heP
investigation partly. PW-20 HHC Virender Sharma, is H again a witness qua visit to the spot alongwith the Inves f tiga ting Officer PW-23 SI Jasbir Singh, on receipt of info rm o ation. PW-21 Nasib Singh Patial, Scientific Officer, State Fo t rensic Science Laboratory, Junga and PW-22 SI Narinder Singh r , had prepared supplementary
challan on receipt of D.N.A. an u alysis, who are formal in nature.
10. Learned tria o l Judge, on appreciation of oral as well as documentary evidence, discussed hereinabove, has concluded that the p h rosec uti
Con has proved its case against both the accused bey g ond all reasonable doubts and as such, accused No.1 Hikmat B i ahadur has been rightly convicted and sentenced for commission H of offence punishable under Section 302 of the Indian Penal Code, whereas accused No.2 Narian Singh under Section 25 of the Indian Arms Act, in the manner as aforesaid.
11. Both the accused aggrieved by the findings of conviction and sentence recorded by learned trial Court, have questioned the legality and validity thereof on the grounds, inter-
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alia, that learned trial Court has gone wrong in convicting the .
appellants for the offences they allegedly committed under Section 302 of Indian Penal Code and Section 25 of Indian Arm . sP
Act, respectively. There is no direct evidence available in H the case in hand. The circumstantial evidence is not at all f dep endable for the reason that the change of circumstance s o is not at all complete nor the evidence so produced is c t onsistent only with the apotheosis of the guilt of the accuse r d, i.e. not explainable on any
other apotheosis aspect that u the accused is guilty. Learned trial
Court has ignored all o settled principles and convicted the
appellants on m ere surmises, conjectures and highly inadmissible as well a h s unrelia
Cble evidence. The prosecution story that the con g vict-appellant Hikmat Bahadur, accused No.1, made a d i isclosure statement on 20.05.2014 and pursuant to that got the H gun recovered, stands falsified from the statements of the prosecution witnesses, who while in the witness-box, stated that the gun was recovered on the day of occurrence, i.e. 18.05.2014. Therefore, it is not at all proved that appellant Narain Singh
Chauhan was the owner of gun and that the same is recovered
from his conscious and physical possession. It is not at all proved
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that said convict was owner of gun. There is again no evidence .
available on record to show that said convict had provided that gun to his co-accused Hikmat Bahadur, accused No.1, f . orP
protection of the orchard. The disclosure statement le H ading to recovery of gun and drat, is not at all proved. It is f also contended that the prosecution, firstly, invented a false o story and thereafter purported to create false evidence r in s t upp ort of the said theory. The medical evidence is suggestive of that the deceased died immediately after the injury. T u he story also that during the course
of conducting post mort o em of the dead body one coin was found
in the mouth o f t C he deceased, which suggests that the deceased brought d h ead to the spot by someone and thrown there. The dec g eased, as such, was not in a position to disclose to PW-1 S i atish Kumar and PW-7 Rakesh Kumar that it is accused No.1, H who fired gunshot on him and thereby inflicted the injury on his person. The only circumstance that the dead body was recovered from a place near the Dhara of accused No.1, is not sufficient to prove his guilt. Both appeals, therefore, have been sought to be
allowed and the accused acquitted of the charge framed against
each of them.
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12. The circumstances pressed into service to bring guilt .
home to the accused persons, are as under:
(i) PW-12 Mast Ram and accused No.2 Narain Sin . ghP
Chauhan, both are orchardists and hav H ing their orchards adjoining to each-other f in Villages Pouran, Tehsil Chopal, District Sh o imla and that while PW-12 Mast Ram h t ad hired the services of deceased Dil Bahadur r as Chowkidar, accused No.2 Narian Singh Chau u han that of accused No.1 Hikmat Bahadur, fo o r watch and ward of their respective orchards.
(ii) h Ac cus
Ced No.2 Narian Singh Chauhan was holding the
g gun Ext.PW-2/A and ammunition without any licence i
and given the said gun to his co-accused Hikmat H
Bahadur, Chowkidar, for his protection from wild animals while on duty in the orchards. (iii) On 18.05.2014, accused No.1 and deceased Dil Bahadur quarrelled with each-other on the issues
such as the deceased owed money to the accused
and also that Bhim Bahadur, the brother of deceased,
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Dil Bahadur had kidnapped the wife of accused No.1 .
Hikmat Bahadur and the said accused fired a shot on the deceased with gun Ext.PW-2/A and there . byP
inflicted injury on his person. The dece H ased Dil Bahadur succumbed to the injury so f rec eived, while was being removed to hosp ita o l from the place of occurrence. t
(iv) PW-12 Mast Ram, on 18 r .05.2014, while on his way to Chandigarh in co u nnection with medical treatment of his son, re o ceived a call around 11.30 a.m. from acc us C ed No.2 Narian Singh Chauhan, who informed h the former about the fight between his Chowkidar g
(accused No.1 Hikmat Bahadur) and Chowkidar of i
said witness (deceased Dil Bahadur). H (v) PW-12 called Dil Bahadur over his mobile phone to know the cause of fight between the two and the latter told that he was shot with gun by accused Hikmat Bahadur.
(vi) On this PW-12 asked his brotherin-law PW-1 Satish Kumar over his mobile phone to rush to the spot,
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who went there and informed this witness that Dil .
Bahadur has succumbed to the injury he received.
(vii) PW-12 had also informed police of Police Statio . n,P
Nerwa, on which the Investigating Off ice H r PW-23 SI/SHO Jasbir Singh, accompanied b f y other police staff, rushed to the spot in of fici o al vehicle and found deceased Dil Bahadur lying t in a pool of blood there nearby the Dhara of acc r used Hikmat Bahadur.
(viii) The police with u the assistance of local people gathered th o ere, shifted the deceased to a vehicle on roa d C side to take him to CHC Nerwa for treatment, h who, however, succumbed to the injury he received on the way to Hospital, Nerwa. ( i ix) g The accused was arrested on 18.05.2014 itself and H
while in custody, made disclosure statement Ext.18/B on 20.05.2014 and got recovered the gun Ext.PW-2/A and Drat Ext.PW-2/E.
13. Mr. S.S. Rathore, learned defence counsel, has very ably argued that the Court below has gone wrong in convicting accused No.1 Hikmat Bahadur on the basis of the circumstantial
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evidence which neither is cogent nor reliable and rather .
contradictory in nature nor is sufficient to prove that the chain . of evidence is so complete, hence, sufficient to believe that it is theP
accused who alone has committed the offence and th H ere is no escape from the conclusion that within all human f pro bability, the crime was committed by the accused alone o and none-else. In a case of circumstantial evidence m r oti t ve to kill the deceased, assume considerable significance and as the motive, if any, for which the accused No.1 has u killed deceased Dil Bahadur, is not
proved, no finding of con o viction could have been recorded against
him. It was n ev C er complained to the police that the deceased owed Rs h .20,000/- to accused No.1 and that the wife of said acc g used was kidnapped by Bhim Bahadur, the brother of the d i eceased. Therefore, the story to this effect according to Mr. H Rathore, has been invented lateron to connect accused No.1 falsely with the commission of offence. Mr. Rathore has further urged that the recovery of gun and drat at the instance of accused No.1, is planted one as the recording of so called
disclosure statement and recovery pursuant thereto, is not at all
proved on record.
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14. Mr. Surender Sharma, learned counsel representing .
accused No.2, has argued that there is no iota of evidence that the gun Ext.PW-2/A was owned by the said accused. There . isP
again no evidence to show that it is the said accuse d H who has purchased the ammunition and provided the sa f me to his co- accused Hikmat Bahadur. Therefore, the fi o ndings of conviction passed against accused No.2, are r th t e result of surmises and conjectures.
15. On the other h u and, Mr. D.S. Nainta, Additional Advocate General, assis o ted by Mr. Virender Verma, Additional Advocate Gene ral C , in order to repel the arguments addressed on behalf of the accused and in support of the impugned judgment, has g conte h nded that the evidence available on record is cogent and r i eliable, hence, was sufficient to convict both the accused with the H commission of offences they allegedly committed. Learned lower Court, therefore, has not committed any illegality and irregularity while convicting both the accused under Section 302 of the Indian Penal Code and Section 25 of the Indian Arms Act, respectively.
16. The present being not a case of direct evidence and rather hinges upon circumstantial evidence casts an onerous duty
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on this Court to find out the truth by separating grain from the .
chaff. In other words, it has to be determined that the facts . of the case and the evidence available on record constitute theP
commission of an offence punishable under Section H 302 IPC against the accused or not. However, before com f ing to answer this poser, it is desirable to take not e o of legal provisions constituting an offence punishable un t der Section 302 IPC. A reference in this regard can be mad r e to the provisions contained
under Section 300 IPC. As pe u r the Section ibid, culpable homicide
is murder firstly if the o o ffender is found to have acted with an
intention to cause death or secondly with an intention of causing
such bod Ch ily inj ury knowing fully well that the same is likely to cau g se death of someone or thirdly intention of causing bodily in i jury to any person and such injury intended to be inflicted is H sufficient in the ordinary course of nature to cause death or if it is known to such person that the act done is imminently so dangerous that the same in all probability shall cause death or such bodily injury as is likely to cause death.
17. Culpable homicide has been defined under Section
299 IPC. Whoever causes death by way of an act with the
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intention of causing death or with the intention of causing such .
bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death can be said to ha . veP
committed the offence of culpable homicide. Culpable ho H micide is murder if the act by which death is caused is f don e with the intention of causing death. Expression "inte o nt" and "knowledge"
postulate the existence of a positiv r e m t en tal attitude which is of different degree. We are drawing support in this regard from the judgment of Apex Court in Ja u griti Devi vs. State of Himachal
Pradesh, AIR 2009 SC o 2869.
18. Th e C ingredients of culpable homicide amounting to murder, h therefore are: (i) causing death intentionally and (ii) cau g sing bodily injury which is likely to cause death. Whether the p i resent is a case where the evidence available on record is H suggestive of that it is the accused No.1 who fired a gunshot on deceased Dil Bahadur intentionally to cause his death and such an act on his part amounts to culpable homicide amounting to murder or not, needs re-appraisal of the evidence available on
record. However, before that it is deemed appropriate to point
out that if the accused No.1 had motive to cause death of
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deceased, the eye witness count of the occurrence may not be .
required, however, where the motive is missing, the prosecution . is required to prove its case with the help of testimony of eyeP
witnesses. H
19. If coming to the commission of an offe f nce punishable under section 25 of the Indian Arms Act, th o e allegations against accused No.2 Narain Singh Chauhan, t are that Gun Ext.PW-2/A, was in his possession without any r license and he was having ammunition also without lic u ence. The offence, he allegedly committed, is under Sec o tion 25(1)(B)(a) of the Indian Arms Act. As such, contra ve C ntion falls within the mischief of Section 3 of the Act. Ther h efore, in order to infer the commission of an offence pun g ishable under Section 25 of the Act by accused No.2, the n i ecessary ingredients are that he was the owner of gun Ext.PW- H 2/A and holding the ammunition also without any licence. 20. Before the evidence produced by the prosecution in this case is elaborated, 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
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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 . onP
circumstantial evidence, circumstances on record must establish the guilt of the accused alone H and rule out the probabilities leading to o presu f mp tion of his
innocence. The law is no mo re res integra, because the Hon'ble Apex Cour t t in Hanumant Govind Nargundkar vs. State o r f M.P., AIR 1952 SC 343, has laid down the follo u wing principles: "It is well remember that in cases where the evidence is of a circu o mstantial nature, the circumstances from which C the c nclusion of guilt is to be drawn should be in the first instance be fully established, and all the h facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the
ig
circumstances should be of a conclusive nature and tendency and they should be such as to exclude H
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."
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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 P
SCC 116, are as follows: .
(i) the circumstances from which the conclusion of guilt is to be drawn must or should beH and not merely 'may be' fully established, f
(ii) the facts so established shou o ld be consistent only with the hypothesis r of t th e guilt of the accused, that is to say, they should not be explainable on any other hyp u othesis except that the accused is guilty,
(iii) the circ o umstances should be of a conclusive n C ature and tendency, (iv ) They should exclude every possible hypothesis h
except the one to be proved, and g
(v) there must be a chain of evidence so complete as i
not to leave any reasonable ground for the conclusion consistent with the innocence of the
H
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 @
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Ajay, ILR 2016 (5) (HP) 213. This judgment also reads as .
follows:-
"10. As noticed supra, there is no eye-witness of t . heP
occurrence and as such, the present case hinges upon the circumstantial evidence. In s f uch li H ke cases, as per the settled proposition of law, the chain of circumstances appearing on record should be
complete in all respects so a s oto lead to the only
conclusion that it is a t ccused alone who has
committed the of u fence. r The conditions necessary in order to enable the court to record the findings of conviction o against an offender on the basis of circum C stantial evidence have been detailed in a jud gment of this Court in Devinder Singh v. State h of H.P. 1990 (1) Shim. L.C. 82 which reads as under:-
ig
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. H
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.
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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 P
must show that in all human probability the H act mu . st 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 f 1995 Suppl.(3)
S.C.C. 357 that the prosecution is o not only required to
prove each and every circum stance as relied upon
against the accused, r but t also that the chain of evidence furnishe u d by those circumstances must be so complete o as not to leave any reasonable ground for a conclusion consistent with the innocence of the accus C ed. The relevant portion of this judgment is rep roduced here-as-under:- h ".....It may be stated that the standard of proof g
required to convict a person on circumstantial i
evidence is now settled by a serious of pronouncements of this Court. According to the
H
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
25
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 P
same should not be capable of being explained . by any other hypothesis, except the guilt of the accused and when all the circumstances cumula tiveHly taken together lead to the only irresis o tible c f onclusion that the accused is the perpetrator of the crime."...
22. The guilt or innocence r of a t ccused persons has to be determined in the light of par u ameters laid down in the judgment cited (supra) as well as o the evidence available on record. We have already det C ailed the circumstances as relied upon by the prosecution aga inst both the accused persons to bring guilt home to them. h It is now to be seen in the light of the evidence
a i va g ilable on record as to whether the chain of evidence furnished H by these circumstances is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all probability it is accused No.1 alone who has murdered deceased Dil Bahadur with gun Ext.PW-2/A, which as per the prosecution case is owned and
26
possessed by accused No.2 un-authorizedly and was provided to .
the accused No.1 for his protection from wild animals.
23. It is in this backdrop, we now propose to discuss t . heP
circumstances pressed in service in this case one by one. H Circumstance No.1: f
24. There is no controversy ab ou o t the orchards of accused No.2 Narian Singh Chauhan t and PW-12 Mast Ram, situated in villages Pouran adjo r ining to each-other. The
prosecution case to this effect u finds support from the testimony of
PW-12. There is again o no dispute qua the services of deceased
Dil Bahadur as Ch C owkidar were hired by PW-12 Mast Ram to look after and h keep watch & ward of his orchard, whereas that of acc g used No.1 Hikmat Bahadur by his co-accused Narain Singh C i hauhan. The orchards were adjoining to each-other. This part of H the prosecution case even finds support from the testimony of PW-13 Smt. Raj Kumari, widow of deceased Dil Bahadur also. Therefore, this circumstance pressed in service by the prosecution, stands established on record.
Circumstance No.2:
27
24. As per the prosecution case, accused No.2 Narian .
Singh Chauhan, was in unauthorized possession of the gun Ext.PW-2/A as he was not holding any licence in this regard. . HeP
was also holding the ammunition without any lice nce H , hence, unlawfully. As per further case of the prosecution f , accused no.2 had given the gun Ext.PW-2/A and provided o the ammunition also
to accused No.1 Hikmat Bahadur for t hi s protection from wild
animals while on duty in the orchar r ds. However, there is no iota
of evidence to show that the u gun Ext.PW-2/A belongs to accused
No.2 Narain Singh Chau o han. In order to prove this aspect of its
case, the rel ian C ce has been placed upon the so called interroga h tion of accused Narian Singh Chauhan during the course of i g nvestigation on 21.05.2014, in which he allegedly disclosed t i hat the gun belongs to him and it was provided by him to his H Chowkidar Hikmat Bahadur. The Investigating Officer PW-23 SI Jasbir Singh, while in the witness box, though has stated in his cross-examination-in-chief that accused No.2 during his interrogation disclosed that the gun belongs to him and that the
same was handed over to accused No.2 alongwith bullets for his
safety from wild animals. Also that accused No.2 further revealed
28
that the gun was of his grand-father Ramia Ram, however, when .
cross-examined, it is admitted that no statement of accused No.2 was recorded when he was arrested on 21.05.2014 and he h . asP
not even recorded the statement of anyone else also tha H t the gun belongs to accused No.2. Strangely enough, had it f be en disclosed by accused No.2 that the gun is of his gra nd o -father and that it is he who had provided the same to accus t ed No.1 for his protection, the Investigating Officer would ha r ve investigated this part of
prosecution case further and u had he did so would have easily
collected the evidence to o show that the gun was that of accused
No.2. The story that the said accused during his interrogation has
revealed Ch that t he gun belongs to him, is germane of the mind of Inve g stigating Officer which has been invented falsely to implicate a i ccused No.2 in the commission of offence punishable under H Section 25 of the Indian Arms Act by hook and crook. 25. As a matter of fact, the present is a case of no evidence against accused No.2 and he has been erroneously convicted for the commission of offence punishable under Section
25 of the Act. Learned trial Judge though has observed repeatedly
in the impugned judgment that the golden thread which runs
29
through the web of administration of justice in criminal cases, is .
that the accused has to be presumed to be innocent until and unless the prosecution is otherwise able to establish char . geP
against him beyond all reasonable doubt. H
26. However, in view of the above f disc ussion, the prosecution has miserably failed to apply suc o h rule of law in the present case and to the contrary r t ecorded the findings of conviction against accused No.2 with r out there being any evidence
available on record. u
Circumstance No.3:
Co27. It is PW-12 Mast ram who set the machinery in motion in h the present case as he allegedly not only informed his bro g ther-in-law PW-1 Satish Kumar about the alleged fight b i etween accused No.1 Hikmat Bahadur and deceased Dil Bahadur H on 18.05.2014 (in Ext.PW1/A, however, names not mentioned and rather word "Gorkha" used), but the information was also given to the police of Police Station, Nerwa also. He did so consequent upon the alleged information in this regard received from accused
No.2 Narian Singh Chauhan. In order to prove this part of the
prosecution case, the Investigating Officer was required to obtain
30
the detail of so called phone call received by PW-12 Mast Ram .
from accused No.2 Narain Singh Chauhan and call allegedly he made on the mobile phone of deceased Dil Bahadur a . ndP
subsequently on that of his brother-in-law, PW-1 Sa tis H h Kumar. 28. As a matter of fact, had such scientif f ic investigation been got conducted it would have given the o better results. For
want of such evidence, which in our t opi nion, could have been
easily collected in order to rule out a r ll suspicion qua this aspect of
the prosecution story, we are n u ot able to persuade us on the basis
of oral testimony of PW- o 12 Mast Ram and PW-1 Satish Kumar that
accused No.1 a C nd deceased had quarrelled and the latter succumbe h d to the injuries he received on his person. Therefore, it can g not be believed by any stretch of imagination that accused N i arain Singh Chauhan had given the information to PW-12 qua H the fight having been taken place between accused No.1 and deceased Dil Bahadur. We failed to understand as to how the call made to the deceased could have been received by him with bullet injury on his person. Therefore, it lies ill that the deceased
informed PW-12 Mast Ram about gunshot fired on him by accused
No.1. In Ext.PW-1/A, the statement of PW-1 Satish Kumar
31
recorded under Section 154 of Code of Criminal Procedure, there .
is no mention of the fight having taken place between accused Hikmat Bahadur and deceased Dil Bahadur. The same rath . erP
reveals that PW-12 Mast Ram informed PW-1 Satish Ku H mar qua fight having taken place between two Gorkhas. T f herefore, with such evidence it is difficult to believe tha t fi o ght had taken place between accused No.1 and the deceas t ed. True it is that as per the medical evidence, i.e. post mort r em report Ext.PW-5/C and the
statement of PW-5 Dr. Dhruv u Gupta that the bullet injury caused
with gunshot was close t o o the heart and the same being vital part
of the body, ac C cording to PW-5, was amenable to profuse bleeding. h However, he has not ruled out the possibility of death of the g injured within a span of 1 ½-2 hours from receiving such in i jury, in case of non-availability of medical assistance. PW-5 Dr. H Dhruv Gupta has further admitted that the injured, in such a situation, may lose his consciousness in the intervening period, meaning thereby that the deceased may have died within 1 ½-2 hours from the receipt of said injury on his person and during the
period, i.e. immediately after the receipt of the injury till his
death, may have remained unconscious. Therefore, in such a
32
situation, the prosecution story qua he having informed PW-12 .
Mast Ram on mobile phone that it is accused No.1 who inflicted bullet injury on his person, cannot be believed true by any stret . chP
of imagination. The time of the fight between two Gor H khas has not come anywhere in the investigation conducted f b y the police and the same to us seems to be deliberatel o y concealed. In the mouth of the deceased, the team of Do t cto rs which has conducted autopsy on his dead body, has fo r und a coin already inserted. Therefore, the deceased mus u t have died within 1½ -- 2 hours from receiving the injury o , hence, was not alive when PW-12 Mast Ram allegedly rang up on his mobile phone and PW-1 Satish Kumar ca Ch me t o the spot. What was the mobile number of the dec g eased and for want of call details again, it cannot be said that P i W-12 had made the call to the deceased who in turn disclosed H that is the accused who fired at him. The story in this regard also seems to be engineered and fabricated. 29. Merely that the dead body was lying nearby the Dera of accused No.1, cannot be taken to conclude that it is accused
No.1 alone and none-else had murdered the deceased. There
was even no occasion to PW-1 Satish Kumar and Saneev (not
33
examined) to have conversation with the deceased and to inform .
that it is accused No.1 who had fired gunshot on the deceased. PW-7 Rakesh Kumar also tells us that he had gone with PW . -1P
Satish Kumar to the spot. It is, however, not mentioned H so either in the statement of PW-1 Satish Kumar recorded f un der Section
154 Cr.P.C. Ext.PW-1/A nor this witness h o as stated so in the witness box. t
30. In order to prove the s r o called motive that deceased Dil Bahadur owed Rs.20,000/ u - to accused No.1 Hikmat Bahadur and that the brother of o the deceased namely Bhim Bahadur, had kidnapped the w C ife of the said accused, the reliance has been placed on h the testimony of PW-12 Mast Ram. This witness only tells g us that it is accused No.1 who owed a sum of Rs.20,000/- to d i eceased Dil Bahadur and the deceased had gone to the accused H to collect his money. PW-12 Mast Ram as already observed, has not deposed correctly. Otherwise also, while in his cross- examination, he has expressed his ignorance that deceased Hikmat Bahadur had been advancing money to Dil Bahadur or
that Bhim Bahadur abducted the wife of accused No.1. He also
expressed his ignorance qua inimical relations of accused No.1
34
and deceased. Therefore, the testimony of PW-12 Mast Ram is .
not of any help to the present case. The another witness examined to substantiate this part of the prosecution case, is PW . -P
13 Smt. Raj Kumari, widow of deceased Dil Bahadur. Th H ough she has deposed while in the witness box that accused f ow ed a sum of Rs.20,000/- from the deceased and that the o deceased had gone to the accused to collect the same r and t al so that the wife of the accused was abducted by Bhim Bahadur, the brother of deceased. However, when she as per h u er version was away from Dera to
collect Guchhi from ne o arby forest, how she could have said that
her deceased h us C band had gone to collect money from Himkat Bahadur. h Otherwise also, when it is the deceased who owed mon g ey to accused No.1, there was no occasion to the former to h i ave gone to the latter for collecting the same as it was to be H collected by the accused. 31. Now, coming to her cross-examination, the suggestion that her husband was sitting in the Dera of other Nepalis and consuming liquor and that he was a drunkard man,
were denied being wrong. However, in the post mortem report,
the contents of alcohol in his blood were found to the extent of
35
219 mg. Therefore, PW-13 Smt. Raj Kumari is also not reliable .
and dependable witness. Otherwise also, she being the wife of deceased is an interested witness, hence, her testimony cannot . beP
relied upon. H
32. In view of the re-appraisal of the e f vide nce in the manner, as aforesaid, it is crystal clear th at o the prosecution has miserably failed to prove that the acc t used was inimical to the deceased and it is he who had fir r ed gunshot on the latter and
thereby caused his death. u
Circumstance No.4: o
33. As already observed while discussing point No.1 (supra) in h the ab
Csence of detail of telephone calls, it cannot be beli g eved that accused No.2 Narain Singh Chauhan had informed P i W-12 Mast Ram that accused No.1 and deceased both had H quarrelled and the accused had fired gunshot on the deceased. There is again no evidence that PW-12 was on his way to Chandigarh in connection with medical treatment of his son. Had it been so, the prosecution could have easily produced in evidence
the record qua the treatment of the son of PW-12 Mast Ram.
Therefore, the prosecution story to this effect has also been
36
engineered and fabricated to falsely implicate accused No.1 .
Hikmat Bahadur in a case under Section 302 of the Indian Penal Code. .P
Circumstance No.5: H
34. While discussing circumstance No.5 f (su pra), it has already been held that for want of calls d o etail, it can not be believed by any stretch of imaginat r ion t that PW-12 Mast Ram, on coming to know about fight between accused and the deceased, called the deceased over his m u obile phone to find out the cause of
said quarrel and that t o he deceased in turn informed that it is
accused No.1 H ikm C at Bahadur who fired a gunshot on him and he received h injury. On the basis of medical evidence available on reco g rd, it has also been observed by us that in view of the nature o i f the injury the deceased received, he may have died within H 1 ½-2 hours form the receipt of the injury and in the meanwhile, may have remained unconscious. Therefore, it is difficult to believe that the call was made by PW-12 Mast Ram to deceased Dil Bahadur and the same was attended by the latter and he
disclosed the manner to the former in which the injury was
37
received by him. The prosecution story in this regard is also not .
proved at all.
Circumstance No.6: .P
31. It is again doubtful that PW-12 Mast Ram H informed PW-1 Satish Kumar to rush to the spot and find f ou t about the quarrel having taken place between two G o orkhas. Even if it is believed to be true, PW-1 Satish Ku r ma t r, on reaching at the spot and taking stock of the circumstances prevailing there, informed PW-12 Mast Ram that the dec u eased has succumbed to the injury
received on his person o . Therefore, the prosecution story that
deceased Dil B ah C adur told PW-1 Satish Kumar that accused No.1 fired a gu h nshot on him, is false and fabricated merely to implicate the g accused falsely in this case. The prosecution case on this g i round also liable to fall to the ground. H Circumstances No.7 & 8: 32. Again the calls detail to show that PW-12 Mast Ram had made a call to Police Station, Nerwa, is not produced in evidence, hence, it is difficult to believe this part of the
prosecution case as true. The Rapat Roznamcha Ext.PW-18/F has
been pressed in service in this regard. Even if this part of the
38
prosecution case is believed to be true and correct, the same is .
not going to make any difference because the possibility of police having rushed to the spot cannot be ruled out as deceased . DilP
Bahadur was shot dead there. However, it is accused No. H 1 Hikmat Bahadur alone who had murdered deceased Dil Bah f ad ur, is not at all proved on record. Since a coin was fou nd o in the mouth of the deceased at the time of his post mo r rtem t , therefore, the possibility of the deceased being already dead cannot be ruled out and the prosecution story that he wa u s shifted to Nerwa Hospital by the
police, seems to be not t o rue and correct.
Circumstance No.9: 33. h It is t
Che disclosure statement Ext.18/B allegedly made by the accused in the presence of PW-18 LHC/MHC Shamim and P i W g -20 HHC Virender Kumar Sharma and recovery of gun as well H as drat pursuant to it at the behest of accused No.1 Hikmat Bahadur, is heavily relied upon against accused No.1. The disclosure statement dated 20.05.2014 Ext.PW-18/B recorded in the manner, as claimed by the prosecution, however, is highly
doubtful. Similarly, the recovery of gun Ext.PW-2/A and Drat
Ext.PW-2/E on the basis thereof, is also doubtful because as per
39
the version of PW-23 SI Jasbir Singh, the accused was arrested on .
18.05.2014 and the recovery of gun and drat was also effected on the same day. The testimony of above said witnesses ha . s,P
therefore, demolished the entire prosecution case H qua the recovery of the weapon of offence, i.e. gun and D f rat (scythe) at the instance of accused N.1. Otherwise al so, o as per the evidence having come on record by way of the te t stimony of PW-2 Raghuvir Singh, the place from where the gu r n was recovered, is adjoining
to a path, hence, thoroughfa u re. The people had access at the
path on account Guch o hi (Wild Mashroom) collection season.
Therefore, it is di C fficult to believe that the gun was hidden by the accused a h fter commission of offence. Similarly, the drat allegedly was g found to be hidden beneath the pillow of the cot of accused N i o.1. The weapon such as drat otherwise used to be kept H beneath pillow on the bed by the people in rural areas. Therefore, it cannot also be believed that drat was hidden by accused No.1 after commission of offence. Interestingly enough, PW-2 Raghuvir Singh, in his cross-examination has stated that the
gun in question was not seen by him in the orchard of accused
No.2 Narain Singh Chauhan. Therefore, it would not be improper
40
to conclude that neither the disclosure statement Ext.PW-18/B of .
accused No.1 was recorded by the police nor recovery of the g . un and drat effected on the basis thereof. Learned trial Judge hasP
failed to appreciate this part of the prosecution case also H vis-a-vis the evidence available on record. f
34. The present, in view of the dis cu o ssion hereinabove, is a case where the circumstances presse t d into service against the accused persons are not satisfacto r rily established on record nor
consistent only with the hypot u hesis of the guilt of the accused nor
are of conclusive natur o e. The chain of evidence is also not
complete so as to leave any reasonable ground for a conclusion inconsiste h nt with
Cthe innocence of the accused and to satisfy the con g science of the Court that in all human probability, it is accused N i o.1 who shot deceased Dil Bahadur with gun Ext.P5 and that the H said gun was of accused No.2, who had provided the same alongwith ammunition to accused No.1 for his protection from wild animals while on duty in the orchard.
35 Learned trial Judge though has noticed in the impugned judgment that the criminal trial is not like a fairy tale and the prosecution must built its case on the edifice of evidence
41
legally admissible. Also that an offence may be gruesome and .
revolt the human conscience, but an accused can only be convicted on legal evidence and not on surmises and conjecture . s.P
However, such principles taken note of by learned tr H ial Judge have not been relied upon and to the contrary f the findings of conviction against the accused persons h o ave been recorded mechanically and without application of t min d.
36. Be it stated that u decearsed Dil Bahadur had died on account of bullet injury, o he suffered on his person. It is, however, not proved beyon C d all reasonable doubt that it is accused Hikmat Bahadur alone, who fired gun shot and Dil Bahadur succumbed to the injury h so received by him at the hands of the above said a i cc g used. The deceased as per the post-mortem report was found to have consumed liquor. Therefore, it is just possible that he
H had consumed liquor somewhere else, may be in the Dera of other Gorkhas, as the accused have pleaded in their defence. 37. For want of cogent and reliable evidence, it cannot be said that the fatal injury was inflicted to the deceased by accused
No.1 alone. The so called motive that deceased owed a sum of
42
Rs.25,000/- to accused No.1 and that he had gone to the said .
accused to collect the same is not at all plausible because no investigation to enquire this aspect of the matter was conduct . edP
by the police. The prosecution case that Bhim Baha H dur, the brother of deceased, had kidnapped the wife of a f ccu sed No.1 is not plausible nor gone into during the cou o rse of investigation. Therefore, such motive attributed to ac t cus ed to kill the deceased is not at all proved. Learned trial Co r urt, as such, was not justified in recording the findings of con u viction against the accused.
38. T C he pre o sent, rather is a case where two possible views emerge on record from the appreciation of the evidence and in a h case of this nature the view favourable to the accused s i ho g uld be followed and the benefit of doubt given to him. Support in this regard can be drawn from the judgment of the
H Apex Court in State of Rajasthan vs. Islam and others, (2011) 6 SCC 343. The relevant extract whereof reads as follows:
"15. The golden thread which runs through the administration of justice in criminal cases is that if
43
two views are possible, one pointing to the guilt of the accused and the other to the innocence, the view .
which is favourable to the accused should be P
adopted. The paramount consideration of the court . is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise fro mH acquittal of the guilty is no less than from o a c f onviction of an innocent."
Therefore, the accused are t entitled to the benefit of doubt and consequently acquit u tal of rthe charge.
39. In view o of what has been said hereinabove, these appeals succe ed C and the same are accordingly allowed. Conseque h ntly, accused No1 Hikmat Bahadur is acquitted of the cha g rge under Section 302 IPC framed against him, whereas a i ccused No.2 Narain Singh Chauhan of the charge framed under H Section 25 of the Arms Act. Accused Hikmat Bahadur is serving out the sentence. The said accused be set free forthwith, if not required in any other case. Registry to prepare the release warrants accordingly. The personal bonds furnished by accused
Narain Singh Chauhan, however shall stand cancelled and the
44
surety discharged. The amount of fine if already deposited be .
refunded to the accused persons against proper receipt. Both the appeals stand disposed of. .P
(Dharam Chand C f ha ud H hary) Judge
(Vivek Sinogh Thakur) September 19, 2017 (ysc) rt Judge Co
u
ghi
H
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