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

Cr. Appeal No. 327 of 2010

Reserved on: April 08, 2016.

Decided on: April 13, 2016. State of Himachal Pradesh ……Appellant.

Versus

Raj Kumar …….Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?

1

Yes.

For the appellant: Mr. M.A.Khan, Addl. AG.

For the respondent: Ms. Archna Dutt, Advocate.

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Justice Rajiv Sharma, J.

This appeal is instituted at the instance of the State

against the judgment dated 31.12. 2009, rendered by the learned

Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No.

14-P/VII-2009, whereby the respondent-accused (hereinafter referred

to as accused), who was charged with and tried for offence punishable

under Section 302 IPC has been acquitted.

2. The case of the prosecution, in a nut shell, is that on

26.12.2008 at 11:00 PM at village Khurd-Patt (Bhawarna), the accused

committed the murder of Sunita Devi. The charge was framed against

the accused under Section 302 IPC on 19.5.2009, to which he pleaded

not guilty and claimed trial. The prosecution, in order to prove its case

has examined as many as 11 witnesses. The statement of the accused

was also recorded under Sectio n 313 Cr.P.C. The accused has

produced DW-1 Dr. Suresh Sankhyan in defence. The learned trial

1

Whether the reporters of the local papers may be allowed to see the judgment?

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Court acquitted the accused, as noticed hereinabove. Hence, this

appeal.

4. Mr. M.A.Khan, Addl. Advocate General, appearing on

behalf of the State, has vehemently argued that the prosecution has

proved the case against the accused under Section 302 IPC. On the

other hand, Ms. Archna Dutt, Advocate has supported the judgment of

the learned trial Court dated 31.12.2009.

5. We have heard learned coun sel appearing for the State and

gone through the judgment and records of the case carefully.

6. PW-1 Vikas alias Vicky testified that his brother was

working in a private concern at Jallandhar for the last 7-8 years. He

was also doing private job at Jallandhar and his mother was also

residing with them. The accused is his Uncle. Accused was married

and he has three kids from his first wife who was residing in her

parents’ house for the last 4-5 years with one kid. The other two

children are residing with accused. The accused had kept another lady

as his wife who was having one male child, aged about one and a half

years. On 22.12.2008, he along with his mother came to his native

village in order to see the bride. On 25.12.2008, he along with his

mother and grandfather visited village Khaniyara to see the girl. They

returned to their house on that very day. Thereafter, they again visited

village Khaniyara since they could not see the girl on the earlier

occasion. They returned from village Khaniyara at about 9:30 PM.

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After taking meals, he and his mother and his grand parents were

sitting in the room. They were talking with each other. At that time,

the accused went to sleep alongwith his wife and son. Two other

children of the accused were sleeping in the room of his grandmother.

He called the accused and the accused also came to the room of his

grandmother and started talking. After some time, his aunt left the

room for sleeping. Thereafter, he and his mother left their house. At

that time, the accused was sitting in the room of his grand parents.

After about 10-15 minutes, he heard the sound of door of the house of

the accused. He also heard the crying of children. His mother asked

him to see as to what was happening. He went to the room of the

accused first. He noticed the accused weeping and his wife Sunita was

on his lap. He touched the body of his aunt and found her body cold.

Thereafter, he called his grandfather. On his asking, firstly the accused

started weeping and thereafter he told that his aunt had committed

suicide by hanging herself with dupatta/scarf. Then he saw froth

coming out from her mouth. They started giving massage on the hands

and feet of the deceased but to no use. There was no pulse. In the

meantime, his mother also came there. He told his mother that his

aunt has died. Thereafter, her mother had gone to the house of Up

Pradhan Sh. Ashwani Sood. Thereafter, he along with his mother went

to the house of one person, namely, Kuku. He narrated the incident to

Kuku, who advised them to inform the police. The police was informed.

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The police came and recorded his statement vide Ext. PW-1/A. He was

declared hostile and cross-examined by the learned Public Prosecutor.

In his cross-examination, he denied the suggestion that the police has

read over statement Ext. PW-1/A to him. However, the police asked

him to sign the statement. He has studied upto 10

th standard. He

denied the suggestion that he told the police that when he entered the

room of the accused, he saw his aunt lying on the bed with face

downward and her hair were spread over and the accused was also

present in the room. Volunteered that his aunt was lying on the lap of

the accused and her hair were spread over. He denied the suggestion

that he told the police that on his inquiry from the accused, the

accused told him that he had killed his aunt by strangulating her and

he was ready to face the consequences. He also admitted in his cross-

examination by the learned defence counsel that the police had slapped

him twice before recording his statement. He was threatened to sign

the statement and he was not given time to read the same.

7. PW-2 Simro Devi also depose d that they heard the noise of

weeping of the accused and his child. She sent his son to see and

inquire as to what was happening there. At that time, she was

standing on the door of her house and she heard his son calling for his

grandfather who came down with a glass of water. She also came to

the room of the accused on his son’s calling her to that room. She saw

Sunita lying on her bed on the floor and her face was downwards and

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her hair were spreading. They asked the accused as to what had

happened and as to why he was crying. He told that something had

happened to Sunita (deceased) and also asked them to assist him to

take his wife to the hospital. Then, her son rubbed the hands and feet

of deceased. There was no pulse. The accused told them that the

deceased has committed suicide by hanging. Thereafter she informed

Up Pradhan Ashwani Sood and then she went to the house of Rakesh

Walia who asked her to inform the police. She was also declared

hostile and cross-examined by the learned Public Prosecutor. In her

cross-examination, she denied the suggestion that her son on coming

back told her that the accused had told him that he had killed his wife

by strangulating her and that he was ready to face the consequences.

She also denied the suggestion that she told Rakesh that the accused

had killed his wife by strangulating her.

8. PW-3 Rakesh Kumar depose d that during the intervening

night of 26/27.12.2008, he was present in his house. At about 1130 or

11:45 PM, during the night, Simro Devi and Vikas came to his house

and informed that accused had ki lled his wife and asked him to

accompany them to their house. He told them that his house is at

some distance and they should call their neighbours. He also asked

them to inform the police first. The police visited the spot and inquest

papers vide Ext. PW-3/A and PW-3/B were prepared. The police

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investigated the house of the accused. He denied the suggestion that

Vikas informed the police that his aunt committed suicide by hanging.

9. PW-4 Simro Devi wife of Thakur Chand deposed that she

went to the house of accused. The dead body of the wife of the accused

was lying on the floor.

10. PW-9 Dr. Munish Saroch has conducted the post mortem

examination on the dead body on the basis of inquest papers Ext. PW-

3/A and PW-3/B. The post mortem report is Ext. PW-9/A. According

to him, the cause of death was asphyxia and final opinion was

reserved. The probable time that elapsed between injury and death

could not be ascertained and the probable time between death and post

mortem was 15 hours. According to him, it could be a case of

strangulation by way of throttling. In his cross-examination, he

deposed that neck was not stretched. There was no bleeding from the

mouth, ears and nose. He denied the suggestion that ligature mark

was oblique, non continuous placed high up in the neck between the

chin and the larynx. He admitted that the ligature mark was visible in

the photograph Ext. PW-5/A-4. He admitted that there were no

scratches, abrasions and bruises on the face, neck and other parts of

the body. He also admitted that in case of hanging, there would be

dribbling of saliva from the mouth.

11. PW-11 SHO Sohan Lal was the I.O. He recorded the

statement of Vikas Kumar vide Ext. PW-1/A under Section 154 Cr.P.C.

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He arranged for the photographer and got the photographs of the dead

body of Sunita Devi and house of the accused vide Ext. PW-5/A-1 to

PW-5/A-6. He inspected the spot and prepared spot map Ext. PW-

11/B. The post mortem was got co nducted. He also recorded the

statement of Simro Devi. He sent the viscera of deceased to FSL,

Junga.

12. PW-1 Vikas alias Vicky deposed that the accused started

weeping and thereafter told him that his aunt had committed suicide

by hanging herself with dupatta/scarf. He saw froth coming out from

her mouth. He was declared hostile and cross-examined by the learned

Public Prosecutor. In his cross-examination by the learned defence

counsel, he deposed that the police had slapped him twice before

recording his statement. He was threatened the sign the statement and

was not given time to read the same. He denied the suggestion that he

told the police that on his inquiry from the accused, the accused told

him that he had killed his aunt by strangulating her and he was ready

to face the consequences. Similarly, PW-2 Simro Devi has not

supported the case of the prosecution. She was also declared hostile.

According to her, the accused told them that Sunita Devi (deceased)

had committed suicide by hanging. She also denied the suggestion in

her cross-examination by the learned Public Prosecutor after she was

declared hostile that her son on coming back told her that the accused

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had told him that he had killed his wife by strangulating her and that

he was ready to face the consequences.

13. The accused has also examined DW-1 Dr. Suresh

Sankhyan. He deposed that it was a case of hanging. He had gone

through the post mortem report Ext. PW-9/A. He was of the opinion

that keeping in view the colour, the course of ligature marks, absence

of nail marks around the neck, absence of petechial hemorrhages on

face and eyes, sclera & conjunctiva of eyes, absence of struggle, it could

be presumed to be a case of hanging. No poison was detected in the

viscera as per the report Ext. PW-11/F. PW-9 Dr. Munish Saroch has

also admitted in his cross-examination that there were no scratches,

abrasions and bruises on the face, neck and other parts of the body.

14. The entire case is based upon circumstantial evidence. In

the cases based on circumstantial evidence, the entire chain must be

complete and should not be broken. The circumstances should be of

conclusive nature. The circumstances must point exclusively towards

the guilt of the accused. In the cases based upon circumstantial

evidence, motive also plays an important role. The prosecution has

not attributed any motive to the accused.

15. Their lordships of the Hon’ble Supreme Court in the case of

Dandu Jaggaraju vrs. State of Andhra Pradesh, reported in (2011)

14 SCC 674, have held that in a case relating to circumstantial

evidence, motive is often a very strong circumstance which has to be

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proved by the prosecution. It is this circumstance which often forms

the fulcrum of prosecution story. It has been held as follows:

“9. It has to be noticed that the marriage between P.W. 1 and the

deceased had been performed in the year 1996 and that it is the

case of the prosecution that an earlier attempt to hurt the

deceased had been made and a report to that effect had been

lodged by the complainant. There is, however, no documentary

evidence to that effect. We, therefore, find it somewhat strange

that the family of the deceased had accepted the marriage for

about six years more particularly, as even a child had been born to

the couple. In this view of the matter, the motive is clearly

suspect. In a case relating to circumstantial evidence, motive is

often a very strong circumstance which has to be proved by the

prosecution and it is this circumstance which often forms the

fulcrum of the prosecution story.”

16. Their lordships of the Hon’ble Supreme Court in the case of

Sathya Narayan vrs. State rep. by Inspector of Police, reported in

(2012) 12 SCC 627, have held that in the case of circumstantial

evidence, motive also assumes significance since absence of motive

would put Court on its guard and cause it to scrutinize each piece of

evidence closely in order to ensure that suspicion, omissions or

conjectures do not take place of proof. It has been held as follows:

“42) In the case of circumstantial evidence, motive also

assumes significance for the reason that the absence of

motive would put the court on its guard and cause it to

scrutinize each piece of evidence closely in order to ensure

that suspicion, omission or conjecture do not take the

place of proof. In the case on hand, the prosecution has

demonstrated that initially, the deceased entered the

Ashram in order to assist the devotees and subsequently

became one of the Trustees of the Trust and slowly

developed grudge with the appellants. PWs 35 and 36,

sister and brother of the deceased Leelavathi deposed that

since then she became a Trustee, there was a dispute with

regard to the Management of the said Trust.”

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17. Their lordships of the Hon’ble Supreme Court in the case of

Majenderan Langeswaran vrs. State (NCT of Delhi) and another,

reported in (2013) 7 SCC 192, have held that onus lies on the

prosecution to prove that the chain of event is complete and not to

leave any doubt in the mind of the Court and all the circumstances

must lead to the conclusion that accused is the only one who has

committed crime and none else. It has been held as follows:

“3. On 30th November, 1996, an altercation is stated to have

taken place between the accused and the deceased L. Shivaraman.

As the accused had sustained some cut injuries on his hands, he

reported the matter to the officials. On 1st December, 1996 when

the ship was on high seas, the appellant took off from his duty as

helmsman on the ground of pain in his hands due to cut injuries

and another helmsman Baria was asked to do the duty as

replacement. As the accused and the deceased were staying in

Cabin No. 25, the accused was temporarily shifted from that cabin

to Cabin No. 23 due to the above incident of assault. At about 1510

hours, the accused allegedly approached IInd Officer Kalyan

Singh (PW-6) with a blood- stained knife in his hand and his

hands smearing in blood and is alleged to have confessed before

him that he had killed L. Shivaraman. On being asked by Kalyan

Singh (PW-6), the appellant handed over the blood-stained knife

to him which he placed in a cloth piece without touching the

same. Kalyan Singh (PW-6) then intimated the Captain and other

officers. The body of L. Shivaraman was found lying in Cabin No.

23 in such a way that half of it was inside the cabin and half of it

outside. The officials of Shipping Corporation of India were

informed. On incident being reported, pursuant to an instruction

from concerned quarter, the ship was diverted to Hongkong. On

being so directed by the Captain of the ship (PW-5), Kalyan Singh

(PW-6) got the body of the deceased cleaned up for being

preserved in the fish room with the help of Manjeet Singh Bhupal

(PW-4) and Chief Officer V.V. Muralidharan (PW-18) took

photographs. The blood-stained knife was kept in the safe custody

of PW-5. The accused was then apprehended, tied and disarmed

before being shifted to the hospital on board. Since the ship was

having Indian Flag, as per the International Treaty of which India

was a signatory, the act of the accused was subject to Indian laws.

Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered

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by the Central Bureau of Investigation (CBI) against the accused

on 6th December, 1996.

16. Now, we have to consider whether the judgment of conviction

passed by the trial court and affirmed by the High court can be

sustained in law. As noticed above, the conviction is based on

circumstantial evidence as no one has seen the accused

committing murder of the deceased. While dealing with the said

conviction based on circumstantial evidence, the circumstances

from which the conclusion of the guilt is to be drawn should in the

first instance be fully established, and all the facts so established

should also be consistent with only one hypothesis i.e. the guilt of

the accused, which would mean that the onus lies on the

prosecution to prove that the chain of event is complete and not to

leave any doubt in the mind of the Court.

17. In the case of Hanumant Govind Nargundkar vs. State of M.P.,

AIR 1952 SC 343, this Court observed as under:

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

circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should in the first instance be

fully established, and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused.

Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every hypothesis

but the one proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave any reasonable

ground for a conclusion consistent with the innocence of the

accused and it must be such as to show that within all human

probability the act must have been done by the accused. ….”

18. In the case of Padala Veera Reddy vs. State of A.P

., 1989 Supp

(2) SCC 706, this Court opined as under:

“10. Before adverting to the arguments advanced by the learned

Counsel, we shall at the threshold point out that in the present

case there is no direct evidence to connect the accused with the

offence in question and the prosecution rests its case solely on

circumstantial evidence. This Court in a series of decisions has

consistently held that when a case rests upon circumstantial

evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to

be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so

complete that there is no escape from the conclusion that within

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all human probability the crime was committed by the accused

and none else; and (4) the circumstantial evidence in order to

sustain conviction must be complete and incapable of explanation

of any other hypothesis than that of the guilt of the accused and

such evidence should not only be consistent with the guilt of the

accused but should be inconsistent with his innocence. (See

Gambhir v. State of Maharashtra, (1982) 2 SCC 351)”

19. In the case of C. Chenga Reddy & Ors. vs. State of A.P., (1996)

10 SCC 193, this Court while considering a case of conviction

based on the circumstantial evidence, held as under:

“21. In a case based on circumstantial evidence, the settled law is

that the circumstances from which the conclusion of guilt is

drawn should be fully proved and such circumstances must be

conclusive in nature. Moreover, all the circumstances should be

complete and there should be no gap left in the chain of evidence.

Further, the proved circumstances must be consistent only with

the hypothesis of the guilt of the accused and totally inconsistent

with his innocence. In the present case the courts below have

overlooked these settled principles and allowed suspicion to take

the place of proof besides relying upon some inadmissible

evidence.”

20. In the case of Ramreddy Rajesh Khanna Reddy vs. State of

A.P., (2006) 10 SCC 172, this Court again considered the case of

conviction based on circumstantial evidence and held as under:

“26. It is now well settled that with a view to base a conviction on

circumstantial evidence, the prosecution must establish all the

pieces of incriminating circumstances by reliable and clinching

evidence and the circumstances so proved must form such a chain

of events as would permit no conclusion other than one of guilt of

the accused. The circumstances cannot be on any other

hypothesis. It is also well settled that suspicion, however grave it

may be, cannot be a substitute for a proof and the courts shall

take utmost precaution in finding an accused guilty only on the

basis of the circumstantial evidence. (See Anil Kumar Singh v.

State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v.

State of A.P., (2005) 7 SCC 603).”

21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC

210, this Court held as under:

“10. We have thoughtfully considered the entire matter. It is

settled law that an offence can be proved not only by direct

evidence but also by circumstantial evidence where there is no

direct evidence. The court can draw an inference of guilt when all

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the incriminating facts and circumstances are found to be totally

incompatible with the innocence of the accused. Of course, the

circumstances from which an inference as to the guilt 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.” This Court further observed

in the aforesaid decision that:

“17. At this stage, we also deem it proper to observe that in

exercise of power underArticle 136

of the Constitution, this Court

will be extremely loath to upset the judgment of conviction which

is confirmed in appeal. However, if it is found that the

appreciation of evidence in a case, which is entirely based on

circumstantial evidence, is vitiated by serious errors and on that

account miscarriage of justice has been occasioned, then the

Court will certainly interfere even with the concurrent findings

recorded by the trial court and the High Court—Bharat v. State of

M.P., (2003) 3 SCC 106. In the light of the above, we shall now

consider whether in the present case the prosecution succeeded in

establishing the chain of circumstances leading to an inescapable

conclusion that the appellant had committed the crime.”

22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16

SCC 714, this Court reiterated the settled law that where a

conviction 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 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.

23. It would be appropriate to consider some of the recent

decisions of this Court in cases where conviction was based on the

circumstantial evidence. In the case of G. Parshwanath vs. State of

Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the

subject and held as under:

“23. In cases where evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is to be drawn

should, in the first instance, be fully established. Each fact sought

to be relied upon must be proved individually. However, in

applying this principle a distinction must be made between facts

called primary or basic on the one hand and inference of facts to

be drawn from them on the other. In regard to proof of primary

facts, the court has to judge the evidence and decide whether that

evidence proves a particular fact and if that fact is proved, the

question whether that fact leads to an inference of guilt of the

accused person should be considered. In dealing with this aspect

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of the problem, the doctrine of benefit of doubt applies. Although

there should not be any missing links in the case, yet it is not

essential that each of the links must appear on the surface of the

evidence adduced and some of these links may have to be inferred

from the proved facts. In drawing these inferences, the court must

have regard to the common course of natural events and to

human conduct and their relations to the facts of the particular

case. The court thereafter has to consider the effect of proved

facts.

24. In deciding the sufficiency of the circumstantial evidence for

the purpose of conviction, the court has to consider the total

cumulative effect of all the proved facts, each one of which

reinforces the conclusion of guilt and if the combined effect of all

these facts taken together is conclusive in establishing the guilt of

the accused, the conviction would be justified even though it may

be that one or more of these facts by itself or themselves is/are not

decisive. The facts established should be consistent only with the

hypothesis of the guilt of the accused and should exclude every

hypothesis except the one sought to be proved. But this does not

mean that before the prosecution can succeed in a case resting

upon circumstantial evidence alone, it must exclude each and

every hypothesis suggested by the accused, howsoever,

extravagant and fanciful it might be. 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, where various links in chain are in

themselves complete, then the false plea or false defence may be

called into aid only to lend assurance to the court.”

24. In the case of Rajendra Pralhadrao Wasnik vs. State of

Maharashtra, (2012) 4 SCC 37, while dealing with the case based

on circumstantial evidence, this Court observed as under:

“12. There is no doubt that it is not a case of direct evidence but

the conviction of the accused is founded on circumstantial

evidence. It is a settled principle of law that the prosecution has to

satisfy certain conditions before a conviction based on

circumstantial evidence can be sustained. The circumstances from

which the conclusion of guilt is to be drawn should be fully

established and should also be consistent with only one

hypothesis i.e. the guilt of the accused. The circumstances should

be conclusive and proved by the prosecution. There must be a

chain of events so complete as not to leave any substantial doubt

in the mind of the court. Irresistibly, the evidence should lead to

the conclusion which is inconsistent with the innocence of the

accused and the only possibility is that the accused has committed

the crime.

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13. To put it simply, the circumstances forming the chain of events

should be proved and they should cumulatively point towards the

guilt of the accused alone. In such circumstances, 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.”

25. Last but not least, in the case of Brajendrasingh vs. State of

M.P., (2012) 4 SCC 289, this Court while reiterating the above

principles further added that:

“28. Furthermore, the rule which needs to be observed by the

court while dealing with the cases of circumstantial evidence is

that the best evidence must be adduced which the nature of the

case admits. The circumstances have to be examined

cumulatively. The court has to examine the complete chain of

events and then see whether all the material facts sought to be

established by the prosecution to bring home the guilt of the

accused, have been proved beyond reasonable doubt. It has to be

kept in mind that all these principles are based upon one basic

cannon of our criminal jurisprudence that the accused is innocent

till proven guilty and that the accused is entitled to a just and fair

trial. (Ref. Dhananjoy Chatterjee v. State of W.B

., (1994) 2 SCC

220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713

and Shivaji v. State of Maharashtra, (2008) 15 SCC 269)”

26. As discussed hereinabove, there is no dispute with regard to

the legal proposition that conviction can be based solely on

circumstantial evidence but it should be tested on the touchstone

of law relating to circumstantial evidence as laid down by this

Court. In such a case, all circumstances must lead to the

conclusion that the accused is the only one who has committed

the crime and none else.”

18. Their lordships of the Hon’ble Supreme Court in the case of

Rishipal vrs. State of Uttarakhand, reported in (2013) 12 SCC 551,

have held that motive does not have a major role to play in cases based

on eye witnesses account of incident but it assumes importance in

cases that rest entirely on circumstantial evidence. Their lordships

have further held that circumstances sought to be proved against

accused be established beyond reasonable doubt, but also that such

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circumstances form so complete a chain, as leaves no option for court,

except to hold that accused is guilty of offences with which he is

charged. It has been held as follows:

“15. The second aspect to which we must straightaway refer is the

absence of any motive for the appellant to commit the alleged murder of

Abdul Mabood. It is not the case of the prosecution that there existed

any enmity between Abdul Mabood and the appellant nor is there any

evidence to prove any such enmity. All that was suggested by learned

counsel appearing for the State was that the appellant got rid of Abdul

Mabood by killing him because he intended to take away the car which

the complainant-Dr. Mohd. Alam had given to him. That argument has

not impressed us. If the motive behind the alleged murder was to

somehow take away the car, it was not necessary for the appellant to kill

the deceased for the car could be taken away even without physically

harming Abdul Mabood. It was not as though Abdul Mabood was

driving the car and was in control thereof so that without removing him

from the scene it was difficult for the appellant to succeed in his design.

The prosecution case on the contrary is that the appellant had induced

the complainant to part with the car and a sum of Rs.15,000/-. The

appellant has been rightly convicted for that fraudulent act which

conviction we have affirmed. Such being the position, the car was

already in the possession and control of the appellant and all that he was

required to do was to drop Abdul Mabood at any place en route to take

away the car which he had ample opportunity to do during all the time

the two were together while visiting different places. Suffice it to say

that the motive for the alleged murder is as weak as it sounds illogical to

us. It is fairly well-settled that while motive does not have a major role

to play in cases based on eye-witness account of the incident, it assumes

importance in cases that rest entirely on circumstantial evidence. [See

Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford

Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State

of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of

strong motive in the present case, therefore, is something that cannot be

lightly brushed aside.

19. It is true that the tell-tale circumstances proved on the basis of

the evidence on record give rise to a suspicion against the appellant but

suspicion howsoever strong is not enough to justify conviction of the

appellant for murder. The trial Court has, in our opinion, proceeded

more on the basis that the appellant may have murdered the deceased-

Abdul Mabood. In doing so the trial Court over looked the fact that there

is a long distance between ‘may have’ and ‘must have’ which distance

must be traversed by the prosecution by producing cogent and reliable

evidence. No such evidence is unfortunately forthcoming in the instant

case. The legal position on the subject is well settled and does not

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High Court of H.P. 17

require any reiteration. The decisions of this Court have on numerous

occasions laid down the requirements that must be satisfied in cases

resting on circumstantial evidence. The essence of the said requirement

is that not only should the circumstances sought to be proved against the

accused be established beyond a reasonable doubt but also that such

circumstances form so complete a chain as leaves no option for the

Court except to hold that the accused is guilty of the offences with

which he is charged. The disappearance of deceased-Abdul Mabood in

the present case is not explainable as sought to be argued before us by

the prosecution only on the hypothesis that the appellant killed him near

some canal in a manner that is not known or that the appellant disposed

of his body in a fashion about which the prosecution has no evidence

except a wild guess that the body may have been dumped into a canal

from which it was never recovered.”

19. The prosecution has failed to prove the case against the

accused beyond reasonable doubt. Thus, there is no occasion for us to

interfere with the well reasoned judgment of the learned trial Court

dated 31.12.2009.

20. Accordingly, there is no merit in this appeal and the same

is dismissed.

( Rajiv Sharma ),

Judge.

April 13, 2016, ( Sureshwar Thakur ),

(karan) Judge.

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