High Court of H.P. 1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr.A. No. 326 of 2011

Judgments reserved on: 19.05.2017

Date of decision: 15th June, 2017

State of H.P. …Appellant

Versus

Sunil Kumar …Respondent/accused

Coram

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

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting? Yes.

For the Appellant : Mr. V.S. Chauhan, Addl. A.G. with Mr.

Puneet Rajta, Deputy A.G. and Mr. J. S.

Guleria, Asstt. A.G.

For the Respondent/ : Mr. Hoshiar Kaushal, Advocate.

Accused

Justice Tarlok Singh Chauhan, Judge.

This criminal appeal under Section 378 (3) of the

Cr.P.C. has been filed by the State against the judgment of

acquittal passed by the learned Additional S essions Judge,

Ghumarwin, District Bilaspur, H.P. (Camp at Bilaspur), on

21.4.2011, in Session Trial No. 25/7 of 2010, wherein the accused

was charged and stood tried for an offence under Section 302 of

the IPC.

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2. The case of the prosecution is that Shri Ramesh Soni,

Pradhan, Gram Panchayat Gatwad, lodged a daily diary rapat

(DDR) No. 8(A) Ext. PW-22/A, on 26.3.2010, the translated version

whereof reads thus:-

“At this time Sh. Ramesh Soni, Pradhan, Gram Panchayat

Gatwad, telephonically informed that Mad an Lal of village

Lethwin, informed him on telephone that a person is lying near

Lethwin and there is no moment in his body. He requested the

police to visit the spot for conducting the proceeding. Acting

on this information SI/SHO Prem Singh, ASI Ludar Mani, H.C.

Amar Singh, No. 91, HHC Ramesh, No. 292, HHG Prittam Singh,

HHG Yogesh Kumar and HHG Ashok Kumar left to Lethwin in

vehicle No. HP-07A-0371 being driven by C. Brikam Ram, No.

448.”

3. Pursuant to such report PW-22 S.I. Prem Singh went to

the spot and recorded the statement of PW1 Sanju under

Section 154 Cr.P.C. Ext.PW-1/A. The relevant portion whereof as

translated reads as follows:-

“Raj Kumar @ Raju was younger son of his uncle late Sh. Suraj

Bhan Chaudhary. Raju was having one elder brother and two

sisters and both sisters are married. On 26.3.2010 he was present

on the spot where the dead body of Raju was hanging with

the tree. Body had sustained marks of injuries on his face and

nose and smeared with the blood. He had a suspicion that Raj

Kumar had not committed suicide but he was murdered. He

made the inquiry on his own level and came to know later on

that in the evening on 25.3.2010 that Sunil Kumar @ Jonny, r/o

village Muhana, was accompanying Raj Kumar. He had

suspicion that the accused Sunil Kumar had done away with

the life of the deceased Raj Kumar.”

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4. The statement Ext.PW-1/A was sent to the Police

Station, Bharari through C. Parveen Kumar, No. 311 for

registration of FIR and FIR Ext.PW-20/B came to be registered. PW-

22 S.I. Prem Singh was entrusted with the investigation and found

that the body of the deceased Raj Kumar was hanging from

eucalyptus (Safeda) tree. The investigator clicked the

photographs Ext.P-14 to Ext.P-30 from his official camera and

prepared the inquest paper Ext.PW18/B to Ext.PW-18/D and also

prepared the spot map Ext.PW-20/D. The papers for conducting

the post-mortem of the dead body of the deceased were

prepared and thereafter post-mortem was got conducted at

C.H. Ghumarwin. The blood which was found lying at a distance

of 50-60 meters from the place where the dead body was found

hanging was lifted and put in a plastic container and sealed with

seal bearing impression ‘D’ in a cloth parcel and it was taken

into possession vide seizure memo Ext.PW-8/A. At the same time,

a passbook of UCO Bank of deceased Raj Kumar , an empty

bottle of liquor ‘Lalpari’, half filled packet of Sudershan

(tobacco), a pair of bathroom chapal, two keys and one lock

were also found lying at a distance of 50-60 meters from the

dead body and were taken into possession vide memo Ext.PW-

18/B.

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5. During the course of investigation, it was revealed

that, on 25.3.2010, deceased Raj Kumar and the accused joined

together at Dhadhol where deceased told the accused that he

was going to bring his wife and had already withdrawn Rs.8000/-

from the bank. They purchased one bottle of liquor from the

liquor vend at Dadhol and proceeded towards Lethwin on foot.

At Bhater the accused purchased a packet of Sundershan

(Tobacco) from the shop of Asha Mahajan (PW2) and at that

time deceased was also accompanying him. Both of them went

on foot towards upper side of the road which leads to Lethwin

and on the way they consumed liquor. After consuming liquor,

the accused attacked deceased Raj Kumar on his face, as a

result whereof, he fell down and became unconscious. Accused

then took out Rs.7000/- from his pocket and assuming him to be

dead hanged him eucalyptus tree with the piece of cloth to give

it a colour that the deceased had committed suicide whereas, in

fact, he had been murdered by the accused, after taking out

the money as aforesaid.

6. It is the further case of the prosecution that while the

accused was in police custody he made a disclosure statement

under Section 27 of the Evidence Act Ext.PW-20/K in presence of

witnesses Neeraj and Desh Raj to the effect that he had

concealed his pant and shirt which he had worn at the time of

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occurrence having blood stains, which had been washed by him

and kept in his bedroom. He also concealed Rs.1410/- in the quilt

which he could get recovered and led the police to his bed

room and got recovered pant and shirt alongwith currency

notes of Rs.1410/- which were taken into possession by the

police.

7. On 6.4.2010, the accused further made disclosure

statement Ext.PW5/A, this time in the presence of witnesses

Narinder Singh and Rajinder Singh to the effect that he had

purchased two cell phones, on 26.3.2010, with the money which

he had taken out from the pocket of Raj Kumar. One cell phone

was purchased for Rs.2000/- from Krish Communication and

another cell phone was purchased from Manoj Electronics for

Rs.2000/- and he had concealed the cell phones in the almirah

of his bed room, which he could get recovered and led the

police party and witnesses to his bed room and got recovered

both the cell phones alongwith cash memo which were taken

into possession.

8. On completion of the investigation, a report under

Section 173 Cr.P.C. together with the relevant documents was

submitted in the Court and thereafter charges were framed

against the accused under Section 302 IPC, to which he

pleaded not guilty and claimed trial.

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9. The prosecution in support of its claim had

examined, as many as, 22 witnesses.

10. At the outset, it may be observed that the case of

the prosecution rests entirely on circumstantial evidence based

upon the theory of “last seen together”.

11. The last seen theory comes into play where the gap

between the point of time when the accused and the deceased

were last seen alive and when the deceased is found dead is so

small that possibility that any person other than the accused

being the author of the crime becomes impossible.

12. The “last seen together” theory is an important link in

the chain of circumstances that would point towards the guilt of

the accused with some certainty. The “last seen theory” holds

the court to shift the burden of proof to the accused and to all a

reasonable explanation as to the cause of the death of the

deceased. It is well settled that it is not prudent to base the

conviction solely on “last seen theory” which should be applied

taking into consideration the case of the prosecution in its

entirety and keeping in mind the circumstances that preceded

and follow the point of being so last seen.

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

evidence, the circumstances from which interference as to the

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

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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:

i) The circumstance from which an inference of guilt

is sought to be drawn must cogently and firmly

established.

ii) Those circumstances should be of a definite

tendency un-erringly pointing towards the guilt of

the accused.

iii) 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.

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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).

16. Factors to be taken into account in adjudication of

cases of circumstantial evidence have been laid down by the

Hon’ble Supreme Court as under:

(i) The circumstances from which the conclusion

of guilt is to be drawn should be fully established;

(ii) The circumstances concerned “must” or

“should” and “not” may be established. The facts so

established should be consistent only with the

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

this should not be explainable on any other

hypothesis except with the accused guilt;

(iii) The circumstances should be of conclusive

nature and tendency;

(iv) They should exclude every possible hypothesis,

except they want to be proved;

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(v) There must be a chain of evidence so

complete as not to leave any reasonable ground for

the reasons consisting that the innocence of the

accused and must so that in all humane probability

the act must have been done by the accused. (See:

Sharad Birdhichand Sarda vs. State of Maharashtra,

(1984) 4 SCC 116, M.G. Agarwal vs. State of

Maharashtra (1963) SCC 200).

17. In Brij Lala Pd. Sinha vs. State of Bihar, 1998 (5) SCC

699, the Hon’ble Supreme Court held as under:-

“9.In a case of circumstantial evidence, the prosecution is

bound to establish the circumstances from which the

conclusion is drawn must be fully proved; the

circumstances should be conclusive in nature; all the

circumstances so established should be consistent only with

the hypothesis of guilt and inconsistent with innocence;

and lastly, the circumstances should to a great certainty

exclude the possibility of guilt of any person other than the

accused. The circumstances proved should lead to no

other inference except that of the guilt of the accused, so

that the accused can be convicted of the offences

charged. Before the court records conviction on the basis

of circumstantial evidence, it must satisfy itself that the

circumstances from which inference of guilt could be

drawn have been established by unimpeachable

evidence and the circumstances unerringly point to the

guilt of the accused and further, all the circumstances

taken together are incapable of any explanation on any

reasonable hypothesis save the guilt of the accused.”

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18. In Bodh Raj @ Bodha & others vs. State of J&K 2002

(8) SCC 45, the Hon’ble Supreme Court has observed under:

“31.The last-seen theory comes into play where the time-gp

between the point of time when the accused and the

deceased were seen last alive and when the deceased is

found dead is so small that possibility of any person other

than the accused being the author of the crime becomes

impossible. It would be difficult in some cases to positively

establish that the deceased was last seen with the

accused when there is a long gap and possibility of other

persons coming in between exists. In the absence of any

other positive evidence to conclude that the accused and

the deceased were last seen together, it would be

hazardous to come to a conclusion of guilt in those cases.

In this case there is positive evidence that the deceased,

A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15

and 18; in addition to the evidence of PWs 1 and 2.”

19. Elaborating on the principle of last seen together,

the Hon’ble Supreme Court in State of Rajasthan vs. Kanshi Ram,

2006 (12) SCC 254, held as under:

“23. It is not necessary to multiply with authorities. The

principle is well settled. The provisions of Section 106 of the

Evidence Act itself are unambiguous and categoric in

laying down that when any fact is especially within the

knowledge of a person, the burden of proving that fact is

upon him. Thus, if a person is last seen with the deceased,

he must offer an explanation as to how and when he

parted company. He must furnish an explanation which

appears to the court to be probably and satisfactory. If he

does so he must be held to have discharged his burden. If

he fails to offer an explanation on the basis of facts within

his special knowledge, he fails to discharge the burden

cast upon him by Section 106 of the Evidence Act. In a

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case resting on circumstantial evidence if the accused fails

to offer a reasonable explanation in discharge of the

burden placed on him, that itself proves an additional link

in the chain of circumstances proved against him. Section

106 does not shift the burden of proof in a criminal trial,

which is always upon the prosecution. It lays down the rule

that when the accused does not throw any light upon

facts which are specially within his knowledge and which

could not support any theory or hypothesis compatible

with his, innocence, the court can consider his failure to

adduce any explanation, as an additional link which

completes the chain. The principle has been succinctly

stated in Naina Mohd., AIR 1960 Nad 2018 : 1960 Cri LJ

620.”

20. The legal position pertaining to appreciation of

circumstantial evidence of last seen has been succinctly

summarized by a Division Bench of the Hon’ble Delhi High Court

in case titled Arvind @ Chottu vs. State ILR (2009) Supp. (Delhi) 704

in the following words:

(i) Last seen is a specie of circumstantial evidence and the

principles of law applicable to circumstantial evidence are

fully applicable while deciding the guilt or otherwise of an

accused where the last seen theory has to be applied.

(ii) It is not necessary that in each and every case

corroboration by further evidence is required.

(iii) The single circumstance of last seen, if of a kind, where

a rational mind is persuaded to reach an irresistible

conclusion that either the accused should explain, how

and in what circumstances the deceased suffered death,

it would be permissible to sustain a conviction on the

solitary circumstance of last seen.

(iv) Proximity of time between the deceased being last

seen in the company of the accused and the death of the

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deceased is important and if the time gap is so small that

the possibility of a third person being the offender is

reasonably ruled out, on the solitary circumstance of last

seen, a conviction can be sustained.

(v) Proximity of place i.e. the place where the deceased

and the accused were seen alive with the place where the

dead body of the deceased was found is an important

circumstance and even where the proximity of time of the

deceased being last seen with the accused and the dead

body being found is broken, depending upon the

attendant circumstances, it would be permissible to sustain

a conviction on said evidence.

(vi) Circumstances relating to the time and the place have

to be kept in mind and play a very important role in

evaluation of the weightage to be given to the

circumstance of proximity of time and proximity of place

while applying the last seen theory.

(vii) The relationship of the accused and the deceased, the

place where they were seen together and the time when

they were last seen together are also important

circumstances to be kept in mind while applying the last

seen theory. For example, the relationship is that of

husband and wife and the place of the crime is the

matrimonial house and the time the husband and wife

were last seen was the early hours of the night would

require said three factors to be kept in mind while applying

the last seen theory.

21. The circumstances of last seen together cannot by

itself form the basis of holding accused guilty of the offence. In

kanhaiya Lal vs. State of Rajasthan (2014) 4 SCC 715, the Hon’ble

Supreme Court held as under:

“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

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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.

15. The theory of last seen-the appellant having gone with the

deceased in the manner noticed hereinbefore, is the singular

piece of circumstantial evidence available against him. The

conviction of the appellant cannot be maintained merely on

suspicion, however strong it may be, or on his conduct. These

facts assume further importance on account of absence of

proof of motive particularly when it is proved that there was

cordial relationship between the accused and the deceas ed

for a long time. The fact situation bears great similarity to that in

Madho Singh v. State of Rajasthan (2010) 15 SCC 588.”

22. The legal position on the subject has been

elucidated in a recent judgment of the Hon’ble Supreme Court

in Pawan Kumar @ Monu Mittal vs. State of Uttar Pradesh and Ant,

2015 (7) SCC 148, wherein it was observed as under:-

“36. In case where the direct evidence is scarce, the

burden of proving the case of the prosecution is bestowed

upon motive and circumstantial evidence. It is the chain of

events that acquires prime importance in such cases.

Before analyzing the factual aspects it may be stated that

for a crime to be proved it is not necessary that the crime

must be seen to have been committed and must, in all

circumstances be proved by direct ocular evidence by

examining before the court those persons who had seen its

commission. The offence can be proved by circumstantial

evidence also. The principal fact or factum probandum

may be proved indirectly by means of certain inferences

drawn from factum probans, that is, the evidentiary facts.

To put it differently, circumstantial evidence is not direct to

the point in issue but consist of evidence of various other

facts which are so closely associated with the fact in issue

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that taken together they form a chain of circumstances

from which the existence of the principal fact can be

legally inferred or presumed (see Bodhraj v. State of J&K). In

the case on hand, the evidence adduced by the

prosecution as discussed above, clearly proves the chain

of events connecting the accused to the guilt of the

commission of the offence. The entire evidence brought on

record by the prosecution, is not only convincing, but is

also trustworthy. Even if the confession of Accused 4 and 7

made before PW 1 and PW 2, which is barred by Section 25

of the Evidence Act, is not taken into account, the other

evidence on record adduced by the prosecution, is

sufficient to hold the accused guilty of the offence.

37. This court has been consistently taking the view 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. In the present, on scrutiny of

evidence on record, we are convinced that the

prosecution had established beyond reasonable doubt the

complete chain of events which points at the guilt of the

accused.”

23. Thus, it can be taken well settled that in the absence

of proof of other circumstances, the only circumstance of last

seen together and absence of satisfactory explanation cannot

be made the basis of conviction.

24. Having set out the legal position, we now proceed

to determine as to whether the prosecution has been able to

prove his case beyond reasonable doubt.

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25. Indubitably, there is no direct evidence to connect

the accused with the crime alleged to have been committed.

The entire prosecution case rests on circumstantial evidence. It is

well settled that when dealing with the question of guilt of person

charged with a crime, there must be a clear and unequivocally

proof of the “corpus delicti” and the hypothesis of delinquency

should be consistent with all the fact proved.

26. It is vehemently argued by Mr. J.S. Guleria, learned

Asstt. Advocate General that the impugned judgment rendered

by the learned Additional Sessions Judge suffers vice of

perversity, inasmuch as, the statements of witnesses, more

particularly, PW2, PW10, PW20 and PW22 have not been

appreciated in a right perspective and would it have been so

then there was no question of the accused being acquitted.

27. Whereas, Shri Hoshiar Kaushal, learned counsel for

the accused would vehemently argue that as the prosecution

has failed to prove its case beyond all reasonable doubt, the

findings recorded by the learned Court below call for no

interference.

We have heard the learned counsel for the parties

and have gone through the records of the case. We have also

minutely examined the testimonies of the witnesses and other

documentary evidence placed on record.

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28. According to Mr. J.S. Guleria, learned Asst.

Advocate General, two circumstances prove the guilt of the

accused beyond reasonable doubt:-

i) The accused was last seen in the company of

the deceased.

ii) That the deceased had withdrawn Rs.8000/ -

on 25.3.2010 to which the accused was well

aware and committed the murder and

thereafter purchased two cell phones on

26.3.2010.

Circumstance No. 1

29. In order to prove that the accused was last seen in

the company of deceased, strong reliance is placed upon the

testimonies of PW2 Asha Mahajan and PW3 Anil Kumar. As

regards PW2 Asha Mahajan, she in her examination in chief has

stated that she was running a Karyana and stationery shop at

Bhater. On 25.3.2010 at about 9:15 -9:30 p.m. deceased Raj

Kumar came to her STD shop and asked her to allow him to

make call to Rohru but she refused as he was drunk. The

accused then purchased a packet of Sudershan (Tobacco) from

her and thereafter both the ac cused and the deceased

proceeded on foot towards the upper side of the road which

leads to Lethwin. In her cross-examination, she clarified that the

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accused was also known as Jonny and was known to her for last

3-4 years but she was not in a position to state whether five roads

lead to the village of the accused from her shop. She admitted

that from 100 meters ahead of her shop a road leads to village

Gahar. She further stated that she was not in a knowledge

whether there was a short cut about 200 meters ahead of shop

which lead to the house of the accused. She admitted that it

was night, therefore, dark and she is not in a position to state

about the colour of the clothes that Raj Kumar was wearing on

that date but clarified that he was covered with chadder .

According to her the distance to Lethwin from her shop is half

kilometer. She lastly stated that the deceased and the accused

were not talking with each other.

30. Coming to the testimony of PW3 Anil Kumar, he

deposed that he is working as a Class-IV employee at Ayurvedic

Dispensary, Ghumarwin and had gone to Shimla on 24.3.2010 as

he had been called by his sister. On 25.3.2010, he alongwith his

sister and her son came back from Shimla in the Shimla-Chamba

bus and alighted at Dadhol at 10:30 p.m. From D adhol, they

boarded another bus Rampur to Katra and alighted from the

same at Lethwin. From Lethwin, they started on foot towards their

home and at some distance from the Lethwin they saw two

persons sitting on the side of the road, whom he could not

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identify. At this stage, the witness was declared hostile by the

prosecution. Therefore, in such circumstances, it could be purely

co-incidence that both these persons had come together. It

would not be so to Court to jump to conclusion that the

deceased and the accused were last seen together, particularly

when PW3 Anil Kumar has categorically stated that though he

had seen two persons sitting on the side of the road at about

10:30 p.m. at a little distance from Lethwin bridge but he could

not identify any one of them.

31. Notably, this witness was cross-examined at length

by the Public Prosecutor but he refused to support the case of

the prosecution. At the same time this witness was cross -

examined by the learned defence counsel and he admitted

that on 26.3.2010 he had come to know from the people that Raj

Kumar had committed suicide.

32. Now adverting to the testimony of PW6 Desh Raj, this

witness admitted that to go to village Mohana from the shop of

Asha Mahajan there are 5-6 paths. He further admitted that from

200 meters ahead from her house one path leads towards the

house of the accused. Even PW22 SI Prem Singh has admitted

that pucca motorable road is also towards village Mohana to

the house of the accused from the distance of about 100 meters

from the house of PW2 Asha Mahajan. She further stated that

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accused was accompanying the deceased Raj Kumar but she

emphatically stated that deceased and the accused were not

talking with each other.

33. That apart PW16 Daulat Ram, the salesman of the

liquor vend from the where the liquor was alleged to have been

purchased had categorically deposed that on 25.3.2010 Raj

Kumar had visited the liquor vend at 4:30 – 5:00 p.m. and

purchased one liquor bottle ‘Lalpari’ and thereafter left the

place. This witness nowhere stated that at that time the accused

was accompanying him.

34. In addition to the aforesaid, it would be noticed that

as per the statements PW PW1 Sanju, Vinod Kumar r/o village

Bhater had disclosed to him that on 25.3.2010 accused was seen

with Raj Kumar but the said Vinod Kumar had not at all been

associated during the investigation nor his statement under

Section 161 Cr.P.C. had been recorded. Not only this PW1 had

further deposed that even Tinku had disclosed this factum to him

but this person too had not been associated in the investigation

nor his statement recorded under Section 161 Cr.P.C.

35. Adverting to the testimony of Desh Raj, who

appeared as PW6, it would be noticed that in his entire

statement he has no where stated that he disclosed to Sanju that

on the date of occurrence he had seen the deceased and

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accused together. Rather, this witness was declared hostile by

the prosecution as he had not supported the case so set up by

the prosecution.

36. Adverting to the testimony of PW22 S.I. Prem Singh, it

would be noticed that he in his deposition has stated that

accused had made a disclosure statement under Section 27 of

the Evidence Act Ext. PW20/B , leading to the recovery of his

pant and shirt which were worn by him on 25.3.2010 and had

further led to the recovery of Rs.1410/-, which was concealed in

the quilt. This disclosure statement was allegedly made in

presence of witnesses Desh Raj and Neeraj. The clothes and

currency notes were taken into possession vide seizure memo

Ex.PW17/A and signed by the aforesaid Neeraj and Desh Raj.

However, when Neeraj appeared as PW 7 and deposed that

accused did not make any statement in his presence and was

accordingly declared hostile by the prosecution. During cross-

examination by Public Prosecutor, he maintained that the

accused did not give any statement in his presence and denied

having made statement portions A to A, B to B, C to C and D to

D of his statement Mark-G later on exhibited as Ext. PW-20/H.

However, he did admit that the accused had taken the police

and witnesses to village Mohana and got recovered one pant

and shirt from his bedroom which was already washed, but he

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denied the recovery of currency notes amounting to Rs.1410/-

and stated that he had only seen 500 rupees note only. On

being cross-examined by the defence counsel PW-7 maintained

that he had not gone inside the room when the currency note

was recovered and stayed outside. He further stated that the

pant and shirt were brought from inside the room but he could

not say from which part of the room the pant and shirt were

taken out.

37. Adverting once again to the testimony of PW6 Desh

Raj, who was supposed to be another witness of disclosure

statement, he in his statement maintained to have

accompanied Neeraj to the house of the accused. According to

him, the police had reached the house of the accused and

prepared the parcel which according to SHO contained the

currency notes recovered from the house of the accused and

was asked to put his signatures on the memo and papers. Even

this witness was declared hostile by the prosecution as he has

also not supported its case. He was though cross-examined by

the prosecution but nothing material could be elicited there

from.

Circumstance No. 2

38. The only other circumstance, which is strongly relied

upon by the prosecution is that the deceased has withdrawn

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Rs.8000/- on 25.3.2010 from his account in UCO Bank which fact

the deceased has disclosed to the accused and both of them

purchased one bottle of country liquor, consumed it and

thereafter accused and deceased reached Lethwin Bridge

where the accused attacked Raj Kumar (deceased), who

became unconscious, as assuming him to be dead the

deceased was hanged by the accused on the Eucalyptus tree

and also removed Rs.7000/- from his pocket.

39. The learned Asstt. Advocate General, would

vehemently argue that there is ample amount of evidence to

establish that after removing of Rs.7000/- from the pocket of

deceased, the accused on the very next day purchased two

cell phones for Rs.2000/- each and this fact stands established by

PW10 Pradeep Kumar and PW20 Sanjeev Kumar.

40. The aforesaid allegations are sought to be

substantiated on the basis of testimonies of PW6 Desh Raj and

PW7 Neeraj Kumar, the witnesses of the disclosure statement

allegedly given by the accused on 3.4.2010 with respect to the

blood stained clothes which he was wearing at the time of

occurrence and its recovery. Reliance is also placed on the

statement of PW10 Pradeep Kumar and PW20 Sanjeev Kumar

from whom the accused purchased two cell phones on

26.3.2010.

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41. PW9 Parkash Chand, Manager, UCO Bank Dadhol

has proved the statement of account Ex.PW9/A, which proves

that a sum of Rs.8000/- have been withdrawn from the account

by the deceased on 25.3.2010. However, there is no further proof

that this amount was personally withdrawn by deceased and this

fact stands admitted even by PW22 SI Prem Singh.

42. Much reliance is placed on the testimony of PW22

S.I. Prem Singh, who deposed that on 6.4.2010, the accused had

made another disclosure statement under Section 27 of the

Evidence Act Ex.PW-5/A that he had purchased two cell phones

with the money which he had taken out from the pocket of Raj

Kumar (deceased), which portion of the statement was rightly

discarded by the learned Court below as not admissible under

the Evidence Act. But, that apart, it would be noticed that this

fact has not even recorded in the Statement of Ex.PW-5/A. One

cell phone was disclosed to have been purchased for Rs.2000/-

from Krish Communication and other for Rs.2000/- from Manoj

Electronics, Berthin. The accused has further disclosed that he

had concealed the cell phones in almirah of his room beside the

deck and would get the same recovered. This statement is

alleged to have been given by the accused in presence of PWs

Narinder Singh and Ravinder Singh witnesses. Thereafter, the

accused led the police party and the witnesses to his bedroom

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and got recovered both the cell phones and thereafter sealed

the same into cloth parcel and taken into possession vide memo

Ex.PW5/B.

43. PW5 Narender Singh, in his statement has fully

supported the version of the investigation to this effect.

According to him, the house of the accused is situated in the

centre of the village whereas this fact was specifically denied by

PW2, who had stated that it is towards the side.

44. The accused is alleged to have purchased two cell

phones from PW10 and PW20. To prove that accused has

purchased cell phones from them for Rs.2000/- each. However,

their testimonies have been discarded by the learned Court

below as the same according to it does not inspire confidence

or faith to place any reliance on either of them.

45. Adverting to the testimony of PW10, he had

deposed that he was running Krish Communication shop at Bus

Stand, Ghumarwin and at on 26.3.2016 sold one cell phone of

Lemon Duo for Rs.2000/- to Sunil Kumar r/o village Bharari, aged

between 20 to 26 years and had issued receipt Ex.PW10/A. The

bill book and bill Ex. PW10/A was presented by him to the police

on 6.4.2010 and taken into possession vide seizure memo

Ex.PW10/B. However, since, he did not identify the person to

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whom he had sold his cell phone, he was declared hostile by the

prosecution and did not thereafter support their case.

46. PW20 Sanjeev Kumar admitted that he had sold one

cell phone of Sigma Tel Company to the accused on 26.3.2010

who was present in the Court. During cross-examination he

admitted that the accused was not personally known to him. He

also did not know his name prior to 26.3.2010 and was not even

aware where the accused was residing, however, importantly,

this witness clearly admitted that the name of the accused was

disclosed to him by the police.

47. Having discussed in detail the statements of

witnesses alongwith exhibited documents, it would be apparent

that the evidence so led by the prosecution does not prove the

guilt of the accused beyond doubt. It has come on record that

deceased was having strain relations with his wife and had been

consuming excess liquor during the period in question. Moreover,

even if the prosecution story assumed to be true for a moment

even then the same is totally improbable as it would be

impossible for a person to firstly murder the deceased and

thereafter carry his body single handedly on a tree and

thereafter put a cloth (parna) around his neck so as to give it a

colour of suicide.

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48. More importantly, PW22 SI Prem Singh had himself

moved an application Ex.PW18/A to the Medical Officer for

conducting the post-mortem and in this application after

narrating the spot position in detail alongwith articles lying near

the dead body, the investigator concluded that the spot position

revealed that the deceased under influence of liquor had

committed suicide and earlier also the deceased always

remained drunk.

49. The fact that the deceased being a drunkard has

been proved even by PW1 Sanju who in his statement

maintained that elder brother of Raj Kumar was mentally

retarded. He further admitted that Raj Kumar was not having

cordial relations with his wife and always remained disturbed. He

also admitted that on the next day it had been published in the

newspaper that it was a case of suicide.

50. PW18 Dr. Sunil Verma, conducted the post-mortem

of the deceased and proved on record the report issued by him

Ex.PW17/A and thereafter gave his final opinion Ex.19/F, which is

as under:-

1. After going through the FSL report No. 646A SFSL

Chem. (211) 10 dated 18.5.2010, attached with post

mortem report. Quantity of ethyl alcohol in blood of

said deceased was 43.92 mg%.

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No other poison could be detected in liver, kidney,

stomach and blood of the deceased.

2. After performing the post-mortem of said deceased I

am of the opinion that the deceased died as a

result of pressure on neck leading to cardiac arrest

due to vasvogal inhibition mediated through

parasympathetic system.

3. The injuries over body of deceased are Ante mortem

in nature including ligature mark.

4. Deceased had consumed alcohol before death.

5. Stomach was empty.

51. While being cross-examined PW18 had clearly

admitted to be correct that the pressure on neck leading to

cardiac arrest due to vasovagal inhibition mediated through

parasympathetic system could be due to self hanging. If that be

so, then already observed earlier, the entire case of prosecution

becomes difficult to believe, as admittedly prior to the cardiac

arrest suffered by the deceased as a result of pressure on neck,

he was very much alive and therefore, it would be impossible in

such circumstances to believe that it was the accused who

hanged him from the tree when he was very much alive.

52. It was no more res integra that suspicion cannot

take the legal proof for some time, unconsciously it may happen

to be a short step between merely certainty and legal proof. At

times, it can be a case of “may be true” and “must be true”, but

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there is a long mental distance between “may be true” and

“must be true” and same devoid conjectures from sure

conclusion (See: Jahar Lal vs. State of Orissa (1991) 3 SCC 27).

53. Judged in the light of the exposition of law as laid

down by Hon’ble Supreme Court, the various judgments referred

to hereinabove, we are of the considered view that the

prosecution has miserably failed to establish the charge against

the accused and on the basis of the evidence so led in the

Court, it is impossible to convict him. The circumstances relied

upon by the prosecution, are merely conjectural and are

capable of being explained on hypothesis other than the guilt of

the accused. The evidence as discussed above does not

substantiate the charge and suffers very serious infirmity and lack

of credibility.

54. It is more than settled that interference with the

judgment of acquittal by the trial Court is unwarranted except

when it suffers from vice of perversity (See: Brahm Swarup & Anr.

vs. State of U.P., (2011) 6 SCC 288).

55. We have no hesitation to conclude that the entire

prosecution story is based only on suspicion, which in no event

can take place of truth. The judgment rendered by the learned

courts below neither suffers from illegality or infirmity much less

perversity calling for interference by this Court.

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56. In view of the detailed aforesaid discussion, we find

no merit in this appeal and the same is accordingly dismissed.

(Tarlok Singh Chauhan)

Judge.

(Chander Bhusan Barowalia)

June 15, 2017 Judge.

Sanjeev

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