High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 296 of 2017

Reserved on: 01.07.2019

Decided on: 02.09.2019

Devi Ram .......Appellant

Versus

State of H.P. …...Respondent

Coram

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

The Hon’ble Mrs. Justice Jyotsna Rewal Dua, Judge

Whether approved for reporting?

1

Yes.

For the appellant: Mr. Lalit K. Sharma, Advocate.

For the respondent: Mr. Narinder Guleria, Addl. A.G

and Mr. J.S. Guleria, Dy. A.G.

Dharam Chand Chaudhary, Judge

The appellant (hereinafter referred to as the ‘accused’)

herein is a convict. He has been convicted by learned Additional

Sessions Judge-I, Mandi, District Mandi, H.P. for the commission of

offence punishable under Sections 302 and 201 of the Indian Penal

Code and sentenced to undergo rigorous imprisonment for life and

to pay fine of `10,000/- for the commission of offence punishable

under Section 302 IPC and for a period of one year and to pay fine

of `5,000/- for the commission of offence punishable under Section

201 IPC vide judgment dated 30.11.2016 passed in Sessions Trial

No. 23/2013, under challenge in the present appeal.

2. PW-5 Maghu Ram is the father of the accused, whereas,

complainant Narainu (PW-1) his brother. On 29.04.2013, there

1

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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was marriage of daughter of one Dhani Ram (grand daughter of

PW-11 Bhagat Ram) at village Khushla. Accused accompanied by

his wife Manjeet Kaur and the complainant accompanied by his

wife had gone to participate in the marriage. As per statement

Ext.PW-1/A of PW-1 recorded under Section 154 Cr.P.C, the

accused and deceased had their food and left the house of Dhani

Ram around 6.45 p.m. The complainant left the house of said

Dhani Ram at about 8.30 p.m. On the way, he heard criers of his

brother, the accused who was asking ‘ Niche Aao, Niche

Aao’(come down). Accordingly he went to ‘nallah’ and found his

brother lying there on stone. On asking as to how he came there,

the accused replied that he had slipped and fallen down. On

inquiry as to where is his wife (deceased), he replied that she had

gone to house of her parents. On asking this question repeatedly

on 10-12 occasions, replied that she had gone to her parent’s

house. The complainant (PW-1) then raised alarm from the ‘nallah’

itself. On this, his father Maghu and nephew Dev Raj arrived

there. In their presence also, the accused was asked about his

wife, his reply again was that she had gone to the house of her

parents. They lifted the accused from that place and brought to

the path, there Hukam Chand, Gulab Chand, Tara Chand and

Leeladhar met them. Hukam Chand (PW-2) inquired from the

accused strictly as to where was his wife. On this, he told that she

had gone to her house. The complainant retorted at him and told

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that she is not in the house. This allegedly raised suspicion in their

mind that the accused may have killed her, therefore, PW-1

accompanied by Tara Chand and Leeladhar went inside the jungle

and after searching the deceased for about 30-45 minutes, they

could trace her out, who was lying in an injured condition in the

jungle. There were grievous injuries on her head and forehead and

she was lying in unconscious condition. They picked up her body

and brought to the road. The deceased and the accused both

were taken by them thereafter to civil hospital at Sundernagar for

treatment. In the hospital, the deceased was declared dead by the

doctor on duty. Since the accused has told lie about his wife and

he was under fear as well perturbed, therefore, the complainant

has suspected that it is he who had killed her.

3. The statement Ext.PW-1/A of complainant was recorded by

Inspector Binny Minhas (PW-14), who on receipt of information

Ext.PW-8/A had rushed to Civil Hospital, Sundernagar where the

deceased was brought along with the accused. PW-1 Narainu and

others were also present there. PW-14 made endorsement

Ext.PW-14/A on the statement Ext.PW-1/A and it was sent to Police

Station BSL Colony, Sundernagar through Constable Lal Singh. On

the basis thereof, FIR Ext.PW-12/A was registered in the police

station.

4. On receipt of file from the police station inquiry from the

accused as to how he received injuries on his person and how the

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death of his wife occurred, he told that they had fallen into gorge

through ‘Dhank’ (hill slope). When PW-14 Inspected the dead

body, he allegedly found she having sustained the injuries on her

head and forehead caused with sharp edged weapon. She

allegedly had not sustained any other injuries on her body nor her

clothes were soiled. He clicked the photographs Ext.PP-1 to

Ext.PP-3 of the dead body and recorded the statements of Hukam

Chand (PW-2) Ext.PS-1 and Dev Raj Ext.PS-2 under Section 161

Cr.P.C. It is thereafter he prepared the inquest papers. The post-

mortem was conducted by the Medical Officer, Civil Hospital,

Sundernagar. The post-mortem report Ext.PW-6/B was collected

and the accused arrested. The spot inspection was conducted on

the identification thereof by PW-1 Narainu and the spot map

Ext.PW-14/D prepared. Blood stained soil and leaves (in the shape

of powder) were lifted from the spot and taken into possession

vide seizure memo Ext.PW-1/C from the spot itself. Blood stained

leaves of ‘Baan’ tree were also lifted and taken into possession

vide seizure memo Ext.PW-1/D in the presence of Narainu (PW-1)

and Dev Raj. One gents wrist watch and broken pen lying on the

spot were also taken into possession. Inside the pen, a paper

allegedly containing writing “Dev love Ashu” was found written.

The statement of Narainu and supplementary statement of Dev Raj

Ext.PS-3 and Ext.PS-4 were also recorded. On the disclosure

statement Ext.PW-7/A allegedly made by the accused on 2

nd

May,

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2013 while in custody, the weapon of offence axe, Ext. P-8 was

recovered and taken into possession vide memo Ext.PW-3/A in

presence of Jitender Kumar and Durga Dass. The sketch of axe

Ext.PW-14/G was prepared. The accused allegedly has identified

the place as per the identification memo Ext.PW-3/C and a

cellphone black in colour LAVA, KKT 345 make lying inside the dry

leaves of ‘Baan’ having one sim of idea, whereas, other of Reliance

belonging to the deceased was taken in possession vide memo

Ext.PW-3/B. The rucksack of accused he was carrying when went

to attend the marriage with the deceased was also taken in

possession vide memo Ext.PW-3/B. PW-5 Maghu Ram allegedly

handed over one jean and shirt of the accused which were worn by

him on the day of occurrence. The same were also taken in

possession vide memo Ext.PW-3/E. The spot map of the place of

recovery of axe, Ext.PW-14/H was also prepared. The statement of

Maghu Ram (PW-5) Ext.PS-5 was recorded as per his version. The

statements made by Jitender Kumar and Durga Dass, HC Chaman

Lal and HC Inder Dev were also recorded as per their version.

5. On 9.5.2013, PW-14 recorded the statements of Bhagat

Ram, Chet Ram and Gulab Chand as per their version. On

3.6.2013, he recorded the statements of Leeladhar and Tara

Chand. On 14.7.2013, the report Ext. P-X was received from the

Forensic Science Laboratory and on 16.7.2013, the weapon of

offence axe was produced before Dr. Vivek Modgil and his opinion

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on the post-mortem Ext.PW-6/B was obtained. The reports Ext.P-Y

and Ext.P-Z were also received from the Forensic Science

Laboratory. The photographs Ext.PP-4 and Ext.PP-5 were taken at

the time of recovery of the weapon of offence, whereas, the

photograph Ext.PP-6 is taken at the time of recovery of the

cellphone. On completion of investigation, PW-14 has prepared

the challan and filed the same in the Court.

6. Learned trial Court on consideration of the final report filed

by the investigating agency and also the documents annexed

therewith has found a prima-facie case for the commission of the

offence punishable under Section 302 and 201 IPC made out

against the accused. Therefore, charge against him was

accordingly framed. He, however, pleaded not guilty to the

charge and claimed trial. The prosecution, in turn, has examined

14 witnesses in all and placed reliance on the documentary

evidence referred to hereinabove.

7. The material prosecution witnesses are Narainu (PW-1), the

complainant, Hukam Chand (PW-2), a witness of the spot, Chet

Ram (PW-4) and Maghu Ram (PW-5). They have been associated

and examined by the prosecution to prove its case to the extent

that the accused and deceased went to the house of Dhani Ram

for attending the marriage of his daughter there. According to PW-

1, they left the house of Dhani Ram at about 7.00 p.m, whereas,

he came back therefrom at about 8.45 p.m. On way back, he

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heard cries of his brother, the accused. He went to the ‘nallah’

and found the accused lying on a stone. On inquiry, the accused

told that he had fallen from the path. When inquired from him

about his wife, the accused told that she had gone to her parent’s

house. He has also supported the prosecution case so as to he

called his father Maghu Ram (PW-5) and nephew Dev Raj and they

all lifted the accused from the place where he was lying and

brought him to the road. Thereafter, Hukam Chand, Tara Chand,

Leeladhar also came there. Hukam Chand (PW-2) has not

supported the prosecution case and turned hostile. Chet Ram

(PW-4) has been associated to support the prosecution case that

the accused not only slapped his wife, the deceased but also

dragged her in the courtyard of Dhani Ram, when they had gone to

attend the marriage. Maghu Ram (PW-5), the father of the

accused has also not supported the prosecution case so as to it is

the accused who killed his wife. Bhagat Ram (PW-11), is the

grand-father of bride Nitu Devi. According to him, the accused and

his wife also attended the marriage of his grand-daughter and

returned to their home at about 5.30-6.00 p.m.

8. The remaining prosecution witnesses are formal as Durga

Dass (PW-3) is a witness to seizure memos Ext.PW-3/A and Ext.PW-

3/B, whereby axe Ext.P-8 and Pithu Ext.P-10 were taken in

possession by the police. The cellphone Ext.P-12 was also stated

to be taken in possession in his presence vide recovery memo

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Ext.PW-3/D, whereas jean pant Ext.P-14 and shirt Ext.P-15 vide

recovery memo Ext.PW-3/E. PW-6 is Dr. Vivek Modgil of Civil

Hospital, Sundernagar. He conducted the post-mortem of the dead

body and submitted report Ext.PW-6/B. PW-7 HC Chaman Lal

posted in police station BSL Colony, Sundernagar at the relevant

time has witnessed the disclosure statement Ext.PW-7/A, whereby

axe Ext.P-8 was got recovered by the accused. He also discharged

the duties of MHC and the parcel containing axe Ext.P-8 was

deposited with him. He made the entries in the malkhana register.

PW-8 HC Nand Lal had entered rapat Ext.PW-8/A in the daily dairy

on receipt of information from the hospital. PW-9 Constable Chet

Ram had taken the case property vide RC Ext.PW-9/A and

deposited the same in R.F.S.L. Mandi. PW-10 Dharam Chand is

Patwari concerned who on demand had supplied the copy of

jamabandi Ext.PW-10/A and tatima Ext.PW-10/B to the police. PW-

12 ASI Trilok Chand had made endorsement Ext.PW-12/B on the

back side of statement Ext.PW-1/A. He also recorded the

statement of Dharam Chand and obtained the copy of jamabandi

Ext.PW-10/A and Aks tatima Ext.PW-10/B from this witness. PW-13

remained posted as MHC Police Station, BSL Colony, Sundernagar.

He has stated about the deposit of case property before him and

sending the same to Forensic Science Laboratory for examination.

PW-14 is the Investigating Officer. He tells us the manner in which

the investigation was conducted by him in this case.

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9. On the other hand, the accused in his statement recorded

under Section 313 Cr.P.C has denied the entire prosecution case

either for want of knowledge or being incorrect. According to him,

he has been implicated in a false case as his wife deceased

Manjeet Kaur died due to fall from the hill. He, however, not opted

for producing any evidence in his defence.

10. Learned trial Judge on appreciation of the oral as well as

documentary evidence available on record has convicted and

sentenced the accused vide judgment under challenge as pointed

out at the very out set.

11. The legality and validity of the impugned judgment has

been questioned on the grounds inter-alia that the evidence

available on record has not been appreciated in its right

perspective and rather learned trial Court has based its findings on

conjectures, surmises and hypothesis. The present, according to

appellant-convict is a case where no iota of evidence is there to

connect him with the commission of offence. Therefore, the

conclusion drawn by learned trial Judge that he has committed the

offence punishable under Section 302 and 201 IPC are not

trustworthy. The material prosecution witnesses have made

inconsistent statements and contradicted each other. The

contradictions and improvements in their version goes to the very

root of the case. The findings that PWs 1, 2, 4 and 5 have

supported the prosecution case are stated to be contrary to the

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record. PW-1, the complainant while in the witness box has denied

any statement Ext.PW-1/A he made to the police, therefore, the

very genesis of the occurrence and also registration of FIR Ext.PW-

12/A on the basis thereof, looses its significance. It has come in

the prosecution evidence itself that the accused was not only

under fear but also perturbed because they both fallen into gorge.

The prosecution evidence also reveals that they both were living

happily. The motive that the accused had relations with another

lady Ashu is not at all proved as the prosecution has failed to

produce any evidence in this regard. Even the I.O as per his

version in cross-examination has not opted for associating said

Ashu in the investigation of the case. In the absence of eye

witness count to the occurrence, the prosecution has placed

reliance on the circumstantial evidence which is not worthy of

credence on account of missing links nor sufficient to arrive at a

conclusion that it is the accused alone who had killed his wife, the

deceased. The impugned judgment, as such, has been sought to

be quashed and set aside.

12. Dr. Lalit K. Sharma, learned counsel representing the

appellant-convict while drawing our attention to the evidence

available on record has vehemently argued that the impugned

judgment is not legally sustainable because the prosecution has

failed to prove its case against the accused beyond all reasonable

doubt. The prosecution story that the accused has killed his wife,

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the deceased on account of his extra marital relations is not at all

proved. On the other hand, the plea of the accused he raised in

his defence that his wife slipped away from the path leading

through hill top and fallen into gorge and died thereby, according

to Mr. Sharma finds support even from the prosecution evidence

itself. When the statement Ext.PW-1/A is not proved to be made

by the complainant PW-1, therefore, the very genesis of the

occurrence is stated to be doubtful. The prosecution witnesses

have clarified while in the witness box that on seeing the accused

under fear and also perturbed, they suspected that it is he who

may have killed his wife. The alleged recovery of axe Ext.P-8 is

also of no help to the prosecution case. According to Mr. Sharma,

the medical evidence is also not suggestive of that fatal injury has

been caused on the forehead of deceased with axe Ext.P-8 alone

as the doctor has not ruled-out the possibility of such injury likely

to be caused by way of fall through a ‘Dhank’ on stone.

13. On the other hand, Mr. Narinder Guleria, learned Additional

Advocate General has pointed out from the testimony of PW-4

Chet Ram that the accused slapped the deceased in the house of

Dhani Ram and also dragged her there in the courtyard. According

to him, this alone is sufficient to believe that it is he who had

murdered her. Also that, his contradictory answers to the query of

PW-1 Narainu and PW-2 Hukam Chand and whereabouts of his wife

that “she had gone to the house of her parents” and “she had

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gone to her house” irrespective of she was lying unconscious in

the ‘nallah’ lead to the only conclusion that it is he alone who had

killed her and by making contradictory statements qua her

whereabouts, tried to conceal this fact from the persons including

the complainant present there. It is also pointed out that the extra

marital relations of the accused with another lady Ashu stand

established, therefore, he, according to learned Additional

Advocate General, had the motive to kill his wife, the deceased.

14. We have carefully analyzed the rival submissions and also

the evidence available on record.

15. The present is a case where no eye witness count of the

occurrence has come on record as the commission of alleged

offence has not been witnessed by anyone. The present,

therefore, is a case hinges upon the circumstantial evidence. In a

case of this nature, the facts and circumstances of the case should

be conclusive in nature and consistent only with the hypothesis of

the guilt of the accused and not explainable on any other

hypothesis except that the accused is guilty. Therefore, an

onerous duty is casted 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 the commission of an offence punishable

under Section 302 IPC against the accused or not. However,

before coming to answer this poser, it is desirable to take note of

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the legal provisions constituting an offence punishable under

Section 302 IPC. A reference in this regard can be made to the

provisions contained under Section 300 IPC. As per the Section

ibid, culpable homicide is murder firstly if the offender is found to

have acted with an intention to cause death or secondly with an

intention of causing such bodily injury knowing fully well that the

same is likely to cause death of someone or thirdly intention of

causing bodily injury to any person and such injury intended to be

inflicted is 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.

16. Culpable homicide has been defined under Section 299

IPC. Whoever causes death by way of an act with the 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 have committed the offence

of culpable homicide. Culpable homicide is murder if the act by

which death is caused is done with the intention of causing death.

Expression “intent” and “knowledge” postulate the existence of a

positive mental attitude which is of different degree. We are

drawing support in this regard from the judgment of Apex Court in

Jagriti Devi vs. State of Himachal Pradesh, AIR 2009 SC

2869.

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17. The ingredients of culpable homicide amounting to murder,

therefore, are: (i) causing death intentionally and (ii) causing

bodily injury which is likely to cause death. In case the accused

had motive to cause death of 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 the testimony of eye witnesses.

18. The present being a case of circumstantial evidence, the

Court seized of the matter has to appreciate such evidence with all

care and circumspection and rely upon only if establishes the guilt

of the accused alone and rule out all possibilities leading to the

presumption of innocence of the accused. The law is no more res

integra as support can be drawn from the judgment of a Division

Bench of this Court in Sulender vs. State of H.P., Latest HLJ

2014 (HP) 550. The relevant extract of this judgment reads as

follows:

[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, 1952 AIR(SC) 343 has laid down

the following principles:

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

is of a circumstantial nature, the circumstances from

which the conclusion of guilt is to be drawn should 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

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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.”

[22] The five golden principles, discussed and laid down, again

by the 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.”

19. Similar is the ratio of the judgment rendered again by this

Bench in State of Himachal Pradesh vs. Rayia Urav @ Ajay,

ILR 2016 (5) (HP) 213. The relevant text of this judgment also

reads as follows:

“[10] As noticed supra, there is no eye-witness of the

occurrence and as such, the present case 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

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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 LC 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 AND

5. There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.

[11] It has also been held by the Hon’ble Apex Court in Akhilesh

Halam V. State of Bihar , 1995 Supp3 SCC 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 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 be 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

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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……….”

20.This Court has again held in State of Himachal Pradesh

Vs. Sunil Kumar, Cr. Appeal No. 326 of 2011 decided on

15.6.2017 as under:

“13. It is more than settled that in case of circumstantial

evidence, the circumstances from which inference as to the

guilt of the accused is drawn, have to be proved beyond

reasonable doubt and there be a complete chain of

evidence consistent only that the hypothesis of guilt of the

accused and totally inconsistent with his innocence and in

such a case if the evidence relied upon is capable of two

inferences then one which is in favour of the accused must

be accepted. It is clearly settled that when a case rests on

circumstantial evidence such evidence must satisfy three

tests:

.The circumstance from which an inference of guilt

is sought to be drawn must cogently and firmly

established.

.Those circumstances should be of a definite

tendency un-erringly pointing out towards the guilt

of the accused.

.The circumstances taken cumulatively, should form

a complete chain so that to come to the conclusion

that the crime was committed by the accused.

14.Equally well settled is the proposition that where the

entire prosecution case hinges on circumstantial evidence

the Court should adopt cautious approach for basing the

conviction on circumstantial evidence and unless the

prosecution evidence point irresistible to the guilt of the

accused, it would not be sound and safe to base the

conviction of accused person.

15. In case of circumstantial evidence, each

circumstances must be proved beyond reasonable doubt

by independent evidence and the circumstances so proved,

must form a complete chain without giving room to any

other hypothesis and should be consistent that only the

guilt of the accused (See: Lakhbir Singh vs. State of Punjab,

1994 Suppl. (1) SCC 173).”

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other hypothesis and should be consistent that only the

guilt of the accused (See: Lakhbir Singh vs. State of Punjab,

1994 Suppl. (1) SCC 173).”

21.The Hon’ble Supreme Court in Sharad Birdhichand

Sarda vs. State of Maharashtra, AIR 1984 Supreme Court

1622, has held as under:

“150.It is well settled that the prosecution must stand or

fall on its own legs and it cannot derive any strength from

the weakness of the defence. This is trite law and no

decision has taken a contrary view. What some cases have

held is only this: where various links in a chain are in

themselves complete than a false plea or a false defence

may be called into aid only to lend assurance to the Court.

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

proved that all the links in the chain are complete and do

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

any infirmity or lacuna in the prosecution case, the same

could be cured or supplied by a false defence or a plea

which is not accepted by a Court.

… … … … … …

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

account the absence of explanation or a false

explanation did hold that it will amount to be an

additional link to complete the chain but these

observations must be read in the light of what this Court

said earlier, viz., before a false explanation can

be used as additional link, the following essential

conditions must be satisfied:

(1) various links in the chain of evidence led by the

prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the

accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and

situation.”

22. The Apex Court again in Kanhaiya Lal vs. State of

Rajasthan, (2014) 4 SCC 715 has held as to how and under

what circumstances the commission of an offence can be inferred

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on the basis of circumstantial evidence and last seen theory. This

judgment reads as follows:-

“8. The prosecution case is that the appellant-accused Kanhaiya

Lal committed the murder of Kala by strangulation and threw

the body in the well. Nobody witnessed the occurrence and the

case rests on circumstantial evidence. It has been consistently

laid down by this Court that where a case rests squarely on

circumstantial evidence, the inference of guilt can be justified

only when all the incriminating facts and circumstances are

found to be incompatible with the innocence of the accused or

the guilt of any other person. The circumstances from which an

inference as to the guilt of the accused is drawn have to be

proved beyond reasonable doubt and have to be shown to be

closely connected with the principal fact sought to be inferred

from those circumstances.

12. The circumstance of last seen together does not by itself

and necessarily lead to the inference that it was the accused

who committed the crime. There must be something more

establishing connectivity between the accused and the crime.

Mere non-explanation on the part of the appellant, in our

considered opinion, by itself cannot lead to proof of guilt against

the appellant.”

23. Now, if adverting to the prosecution case, admittedly, the

deceased was legally wedded wife of the accused. It is established

from the prosecution evidence that on 29.4.2013, the accused and

deceased had gone to attend the marriage of the daughter of one

Dhani Ram, grand-daughter of PW-11 Bhagat Ram at village

Khushla. They had their meal in the marriage and as per

statement under Section 154 Cr.P.C Ext.PW-1/A, returned to their

house at 6.45 p.m, whereas, as per version of complainant PW-1 at

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about 7.00 p.m. and that of PW-11 Bhagat Ram at about 5.30-6.00

p.m. Irrespective of the contradiction qua timing of their return,

the fact remains that they returned to their house together

because the accused has also not disputed this aspect of the

matter, as is apparent from the trend of cross-examination of the

prosecution witnesses conducted by learned defence counsel. The

complainant had also gone to attend the marriage and he came

back after the accused and deceased left the house of Dhani Ram.

As per his version, on the way to the house, he heard cries of his

brother, the accused who was asking ‘ Niche Aao, Niche Aao ’

(come down). On recognizing that his brother, the accused is

crying, he went down and noticed the accused lying on a stone in

the nallah. His wife, as per prosecution case itself, was also lying

in an unconscious condition at a distance of 10 feet from the place

where the accused was lying in an injured condition on the stone.

24. The further case of the prosecution that on inquiry by PW-5

from the accused that where was his wife and the reply that she

had gone to her parent’s house and thereafter that she had gone

to her house and the accused allegedly was not frightened but

perturbed also, therefore, suspected to have killed his wife does

not find support from the prosecution case. PW-5 has supported

the prosecution case only up to the stage of he found the accused

lying in an injured condition on a stone in the gorge and on inquiry

about his wife, he told that she had gone to her parent’s house

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and also that he called his father Maghu Ram (PW-5) and nephew

Dev Raj to the spot. No doubt, he has also supported the

prosecution case that sometime the accused was telling that his

wife had gone to her parent’s house and sometime that she had

gone to her house, however, denied that it is due to such conduct

of the accused, they apprehended he having killed his wife. He

had denied any such statement made to the police. The

prosecution has not opted for cross-examining him qua this part of

its case. Therefore, its case that in view of the contradictory

statements made by the accused, PW-1 believed that he had killed

his wife stand falsified. Though, he admitted the statement

Ext.PW-1/A having been made by him before the police and also

identified his signature thereon, however, when cross-examined

stated that he had reported to the police that his brother and his

wife had fallen down the hill. It has also come in his cross-

examination that the accused was living with his wife, the

deceased happily. The forest where the accused and deceased

had fallen is stated to be at a walkable distance of 20 minutes. He

also admits that the accused was under fear and also disturbed

and lying in a semi conscious condition in the nallah. The

deceased was also lying in unconscious condition there. He admits

that the accused remained disturbed for 3-4 days after the

incident. He admits that the path in the forest at that place

crosses through a ‘Dhank’ (mountain) and the accused and

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deceased were lying at a distance of 200 meters below the path.

He also admits that the accused did not speak with anyone. He

had not suspected that it is the accused who had killed his wife nor

made any such statement to the police.

25. Therefore, as per evidence having come on record by way

of the testimony of complainant, PW-1 the prosecution case that

on contradictory statement qua whereabouts of the deceased the

accused made he and other persons present there suspected that

it is he who had killed her, is not at all proved and rather as per his

testimony both the accused and deceased fell into gorge from the

path situated in the hill side. About the so called motive that the

accused had relations with another lady Ashu and that it is for this

reason he had killed his wife is also not proved at all. On the other

hand, as per his version the accused and deceased were living

happily. He has not even been cross-examined also on behalf of

the prosecution as he has partly resiled from his statement

Ext.PW-1/A qua material aspects while in the witness box, as

pointed out hereinabove.

26. The another material prosecution witness is PW-2 Hukam

Chand. He has not supported the prosecution case at all and

rather turned hostile. He was declared hostile and cross-examined

by learned Public Prosecutor. He tells us that on being told by

Narainu, PW-1 that his brother, the accused had fallen into gorge

and is lying in an injured condition there, he went to the spot.

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When inquired from the accused as to how he had fallen, no reply

was given by him. Though as per this witness when asked the

whereabouts of his wife, the deceased sometime had been telling

that she had gone to her parent’s house and sometime to her

house, however, it is denied that on account of such conduct of the

accused, they suspected that it is he who had killed her. The

suggestion that he was not in a position to explain the injuries the

accused sustained and that the accused was also lying in semi

conscious condition have been admitted being correct. His further

statement that it was a love marriage and that the accused and

deceased both were living happily belies the case of the

prosecution for the reason that if it is so, the accused had no

occasion to kill his wife, particularly, when the so called motive to

kill her is not proved at all. Therefore, PW-2 has also not

supported the prosecution case at all. No doubt that part of the

statement of a hostile witness which supports the prosecution case

has to be relied upon and cannot be ignored. Therefore, if it is

believed that the deceased and accused were lying in an injured

condition on the spot and the deceased ultimately declared dead

when taken to hospital, does not implicate the accused for the

commission of her murder because nothing has come in his

statement that he killed her by inflicting blow with axe Ext.P-8. On

the other hand, when the accused himself was lying in an injured

and unconscious condition on the spot with injuries on his person,

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how he could have killed the deceased, his own wife with whom as

per the prosecution case itself he was living happily.

27. Another material prosecution witness PW-4 Chet Ram

though claims that he cooked food in the house of Dhani Ram and

even had been serving the guests came there to participate in the

marriage and that he noticed the accused having slapped his wife

2-3 times in the courtyard of said Dhani Ram and dragged her

there. His testimony in cross-examination that he is also the

resident of same village to which the accused belongs, however,

not in speaking terms with him, leads to the only conclusion that

his alleged statement qua slapping and dragging the deceased by

the accused is not correct and rather made for some ulterior

motive may be on account of enmity between him and the

accused as there can’t be any other and further reason of their

non-speaking terms, irrespective of belongs to same village. It is

unbelievable that this witness had any occasion to see the accused

slapping his wife at a distance of 150 feet in the courtyard, that

too, when he having cooked the food and even serving the same

to the guests also. He, therefore, had no occasion to see any such

activity going on there. Above all, as per his statement in cross-

examination in the marriage about 200 persons were present,

therefore, it is not known as to why anyone else has not noticed

the accused having slapped his wife and also dragged her and why

effort to associate any other person(s) to support this part of the

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prosecution case has not been made. When this witness admits

that ladies were having food separately, whereas, the gents

separately and that the wife of PW-1 Narainu was also with the

deceased, it is she who would have thrown some light qua this

aspect of the matter. However, it is not known as to why she has

not been examined. Interestingly enough, his statement was not

recorded by the police as he stated while in the witness box. If it is

so, his statement while in the witness box cannot be relied upon

and has to be ignored because he was not associated during the

investigation of the case by the police.

28. PW-5 Maghu Ram is the father of the accused. He has also

not supported the prosecution case and was declared hostile. It

has come in his cross-examination conducted on behalf of the

prosecution that he went to the place where the accused and

deceased were lying on hearing noise. When reached there, he

noticed that the accused and deceased both had fallen through a

‘Dhank’ into gorge. On inquiry from the accused as to where his

wife was, he told that she had gone to her parent’s house. The

accused and deceased, according to him, both had gone to attend

the marriage of daughter of Dhani Ram. Though he admits the

relations between the accused and another lady Ashu and that

accused used to beat his wife, the deceased. He has also admitted

that this was the cause of killing the deceased by the accused.

However, when further cross-examined by learned defence

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counsel, it is stated that his memory is weak. Also that, he is

illiterate. The marriage of the accused and deceased was love

marriage. As per his further version, his statement was not

recorded by the police. Both the accused and deceased were lying

on the spot in unconscious condition. Both were taken to civil

hospital, Sundernagar for treatment. The deceased was declared

as brought dead in the hospital by the doctor on duty, whereas,

the accused gained consciousness after two days. He has also

admitted that path at that place is narrow and is through forest. If

one does not walk cautiously, may fall down into gorge. Therefore,

PW-5 has also not supported the prosecution case at all. His

statement in cross-examination conducted on behalf of the

prosecution that the accused had relations with another lady Ashu

and it is for this reason he has killed his wife, the deceased cannot

be believed to be true, particularly when it has further come in his

cross-examination conducted by learned defence counsel that he

is illiterate and his memory is weak. According to him, his

statement was not recorded by the police. However, the

prosecution has not associated said Ashu during the course of

investigation of the case nor cited her as a witness. Had it been

so, the defence would have an opportunity to cross-examine her.

Therefore a passing reference in the statement of this witness and

also in the prosecution case is not sufficient to arrive at a

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conclusion that illicit relations of the accused with said Ashu was

the cause of killing the deceased by him.

29. The another circumstance which the prosecution has

pressed in service against the accused is the recovery of alleged

weapon of offence, axe Ext. P-8, consequent upon the so called

disclosure statement Ext.PW-7/A he allegedly made in the

presence of HC Chaman Lal (PW-7) and HC Inder Dev of Police

Station, BSL Colony, Sundernagar. There is, however, no grain of

truth in this part of the prosecution case because from the

testimony of HC Chaman Lal (PW-7) who was posted in police

station, BSL colony, Sundernagar itself, it cannot be believed by

any stretch of imagination that the accused has made the

disclosure statement Ext.PW-7/A. As a matter of fact, the

disclosure statement and recovery effected on the basis thereof

otherwise is also a weak type of evidence. The statement under

Section 27 of the Act leading to discovery of facts exclusively in

the knowledge of maker thereof and if such facts ultimately

discovered in consequence of the statement so made, some

guarantee should be there that information given by the accused

was true and it is only in that situation such evidence can be relied

upon to fasten liability on the accused. In the case in hand, PW-7

no doubt has stated while in the witness box that the disclosure

statement Ext.PW-7/A was made by the accused in his presence

while in custody in the police station. The prosecution, however,

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has failed to explain as to what necessitated to record the

statement only in the presence of official witnesses i.e. two Head

Constables posted in the same police station. On the other hand,

BSL colony, Sundernagar is a thickly populated area which falls

under the Municipal Committee, Sundernagar and it cannot be

believed by any stretch of imagination that no other person from

the locality or from the area which falls within the jurisdiction of

this police station came there in connection with some work or

otherwise. PW-7 when cross-examined has expressed his inability

to tell as to how many persons visited the police station on that

day. He has not denied that no-one from the general public came

to the police station on that day. Meaning thereby that the I.o. has

intentionally and deliberately fabricated the disclosure statement

Ext.PW-7/A which was not made by the accused. In order to show

that the same has been made by the accused two official

witnesses have been associated, again intentionally and

deliberately to ensure that the prosecution case which to his own

knowledge was false supportedby them during the course of trial.

The testimony of HC Chaman Lal (PW-7), therefore, can’t be

believed to be a genuine and acceptable evidence qua this aspect

of the matter.

30. Above all, axe like Ext. P-8 is generally available in every

house, particularly in rural areas. When the prosecution witnesses

themselves have stated that the accused was lying in an injured

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and semi unconscious condition, whereas, the deceased at a

distance of 10 feet therefrom in an unconscious condition, which

as per the findings recorded hereinabove by way of fall into gorge

through ‘Dhank’ from the path, the accused had no occasion to

have assaulted the deceased with the axe Ext.P-8. Otherwise also,

as per the prosecution case itself, the accused and deceased were

on there way to home from the marriage. The house was away

from the spot where both were lying in the nallah in injured

condition. It is not understandable as to when and how the axe

was brought by him which was in the house. The prosecution

case, as a matter of fact, qua this aspect of the matter is palpably

false. There is no question of using axe by the accused to kill the

deceased as it is for this reason, no blood was detected thereon,

as is apparent from the perusal of the report of seriologist Ext.P-X.

Though it has come in the disclosure statement Ext.PW-7/A that

the axe was washed by the accused with water after the

commission of offence, however, when the prosecution story is

silent. On the other hand, as per the prosecution case itself, he

was taken to hospital along with the deceased from the spot itself.

When he washed the axe and kept the same in the roof of

slateposh house, no plausible explanation is forthcoming qua this

aspect also. It is also doubtful that the injury on the forehead of

the deceased was caused with axe Ext.P-8 alone. No doubt, in the

opinion of Dr. Vivek Modgil (PW-6), the two injuries marked as star

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on the person of deceased could have been caused by a sharp

edged weapon, whereas, the remaining with blunt trauma. In his

cross-examination, the suggestion that such injuries can also be

caused by way of fall on a sharp edged stone though was denied

at the first instance being wrong, however, in the same breath

clarified that the injury on the skull which as a matter of fact was

fatal could have also been caused by way of fall on stone from

height. Therefore, the opinion of doctor is also not conclusive that

fatal injuries on the person of deceased could have not been

caused otherwise and only with the axe Ext.P-8. The I.O. with a

view to book the accused by hook and crook in a false case had

fabricated the evidence which approach is not at all appreciated.

The accused, a member of weaker section of the society, hence a

poor man has been implicated falsely in this case to the reasons

best known to the I.O, PW-14.

31. When the disclosure statement Ext.PW-7/A is not proved as

discussed in para supra, the discovery of axe Ext.P-8 vide memo

Ext.PW-3/A is also not proved. No doubt, Ext.PW-3/A has been

witnessed by Durga Dass (PW-3) and one Jitender Kumar. Jitender

Kumar has not been examined. As regards, Durga Dass (PW-3), he

has only stated that the accused got recovered one axe at village

Khushla where he was brought by the police. What to speak of

recovery of axe Ext.P-8 from the roof of a room of house, this

witness has not even deposed that the same was recovered from

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the house of the accused and rather as per his statement recorded

hereinabove, the recovery was effected in village Khushla. Above

all, it has come in his cross-examination that he did not go inside

the house of the accused. He admits that spot is a secluded place

and the path is narrow. The nallah is deep from the path. His

testimony, therefore, supports the defence version that they fell

down through ‘Dhank’ from path. Even if the recovery of cellphone

and watch etc., is on the spot the same is hardly of any help to the

prosecution case because the accused and deceased had fallen

from ‘Dhank’ into gorge and lifted in injured condition therefrom.

The cellphone, watch and chappal etc. may have been recovered

therefrom, but such recovery does not connect the accused with

the commission of offence.

32. As regards the recovery of jean pant and shirt of the

accused, he allegedly worn at the time when brought in injured

condition from the nallah to the road, according to PW-5 Maghu,

the father of the accused, the same were handed over by him to

the police in the police station on asking by them. Therefore,

though PW-3 has stated about the same produced by PW-5 on the

spot, however, the evidence to the contrary having come on

record by way of testimony of PW-5 belies the statement of PW-3.

Above all, even if jean pant and shirt of the accused soiled with

blood etc. were taken in possession, again is of no consequence

for the reason that after having fallen down through ‘Dhank’, he

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may have received injuries on his person and the blood oozed out

as well as the same soiled. The recovery of pant and shirt of the

accused is, therefore, also of no help to the prosecution case.

33. The remaining prosecution witnesses HC Nand Lal and

Constable Chet Ram PW-8 and PW-9 respectively are formal

because PW-8 has entered rapat rojnamcha Ext.PW-8/A on receipt

of information qua a woman brought to the hospital and has been

declared dead, whereas, PW-9 has taken the case property to the

Forensic Science Laboratory on being handed over by Inder Dev

(PW-13), MHC police station. PW-10 Dharam Chand is the Patwari

concerned who has issued the jamabandi Ext.PW-10/A and tatima

Ext.PW-10/B to the police. PW-12 ASI Trilok Chand has made an

endorsement Ext.PW-12/B on the back side of statement Ext.PW-

1/A. He has also recorded the FIR Ext.PW-13/A. During the

investigation of the case, he has recorded the statement of

Dharam Chand (PW-10) and collected the copy of jamabandi

Ext.PW-10/A and tatima Ext.PW-10/B. Inder Dev (PW-13) was

posted as MHC in police station, BSL colony Sundernagar at the

relevant time. He has deposed about the case property handed

over to him from time to time and the entries thereof made by him

in the malkhana register. He has also deposed about the case

property having been sent to Forensic Science Laboratory and the

report(s) received therefrom. PW-14 Inspector Binny Minhas, the

then SI/SHO police station, BSL, colony Sunderngar is the

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Investigating Officer. He has deposed about the manner in which

he conducted the investigation. When cross-examined it is,

however, stated by this witness that statement of lady namely,

Ashu was not recorded by him. Also that, he has not collected any

evidence regarding the relations of the accused with said Ashu. It

is denied that the accused also received injuries on his person.

Though the suggestion that the accused had multiple fracture in

his leg, he expressed his inability to answer this question,

however, in the same breath admitted that the accused was

limping. Meaning thereby that the accused had also received

injuries on his person but the I.O. has avoided to answer the

suggestions so put to him by learned defence counsel deliberately

to the reasons best known to him. He admits that the distance

between spot and the house of the accused was about 1-½

kilometer. Such distance, according to him was covered by the

residential houses of the people. Being so, how the accused could

have killed the decesed in view of ‘Abadi’ nearby. His version that

there was no path at the place where the deceased was lying is

absolutely baseless for the reason that the spot as per the

prosecution evidence itself is inside the jungle and the path was on

hill side from where she had fallen. Therefore, the version of the

I.O. in his cross-examination conducted by learned defence

counsel leaves no manner of doubt that the investigation was not

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conducted in a fair manner and rather with a view to implicate the

accused by hook or crook in this case falsely.

34. On the other hand, the accused in his statement recorded

under Section 313 Cr.P.C has denied the entire prosecution case

either being wrong or for want of knowledge and rightly so

because, in our opinion, he has not murdered his wife and rather

she died by way of fall through ‘Dhank’ into gorge from the path

while on the way back to her house in the company of accused

after attending the marriage in the house of Dhani Ram. The plea,

the accused raised in his defence that his wife Manjeet Kaur had

died due to fall from the hill finds support from the prosecution

evidence itself, which has come on record by way of the testimony

of PW-1, the complainant, Hukam Chand (PW-2) and Maghu Ram

(PW-5), the father of the accused has also substantiated the same

while in the witness box.

35. In view of the discussion hereinabove, the material

prosecution witnesses i.e. the complainant PW-1 Narainu, PW-2

Hukam Chand and PW-5 Maghu Ram have not supported the

prosecution case and rather their testimony substantiates the plea

that the accused and deceased slipped from the path on hill top

and fallen into gorge through ‘Dhank’ and received injuries on

their person. The alleged case of prosecution that the accused

immediately before the commission of offence slapped and also

dragged the deceased in the courtyard of the house of Dhani Ram

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in the presence of PW-4 Chet Ram for the reason hereinabove also

inspires no confidence. The recovery of axe Ext.P-8 and other

articles consequent upon the alleged disclosure statement made

by the accused is not at all established as the testimony of sole

official witness PW-7 HC Chaman Lal associated to prove this part

of the prosecution case lends no assurance thereto. Therefore,

when the accused and deceased as per prosecution itself were

leading happy married life, there was no occasion to the former to

have killed the latter in the manner as claimed by the prosecution.

The alleged prosecution story that the accused had love affairs

with another lady Ashu is not at all proved on record. Even as per

the testimony of the I.O. PW-14, he neither associated said Ashu

nor was she interrogated during the investigation of the case. The

alleged recovery of paper slip having written “Dev love Ashu” from

inside the pen recovered from the spot is also not worthy of

credence for the reason that in which portion of pen, the paper slip

was kept inside it, remained unexplained. On the other hand, in

our considered opinion, in the pen, there is no space for keeping

any paper slip.

36. The present in view of above is, therefore, a case where

learned trial Court has not appreciated the evidence available on

record in its right perspective and to the contrary recorded the

findings of conviction against the accused on the basis of

conjecture and surmises. Such an approach has certainly resulted

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into miscarriage of justice to the accused because he has not only

been convicted on the basis of highly inadmissible evidence but

also sentenced to undergo imprisonment for life. The impugned

judgment, as such, is neither legally nor factually sustainable. It

is, therefore, not possible to sustain the impugned judgment and

sentence.

37. In view of what has been said hereinabove, this appeal

succeeds and the same is accordingly allowed. Consequently, the

conviction and sentence imposed on the appellant-convict Devi

Ram are set aside and he is acquitted of the charge framed

against him under Section 302 and 201 IPC, by giving him benefit

of doubt. He is directed to be released from the custody forthwith

unless required otherwise. The Registry to prepare the release

warrants accordingly.

(Dharam Chand Chaudhary)

Judge

September 02, 2019 (Jyotsna Rewal Dua)

(naveen) Judge

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