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Himachal Pradesh High Court · body

2000 DIGILAW 284 (HP)

HARJINDER SINGH v. STATE OF H. P.

2000-11-01

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M.R. Verma, J: - This appeal has been preferred by the appellant/convict Harjinder Singh (hereafter referred to as the accused) against the judgment dated 28/30.12.1999 whereby he has been convicted under Section 302 IPC and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/and in default of payment of fine, to undergo simple imprisonment for one year. 2. Case of the prosecution, in brief, is that the accused alongwith Smt. Neelam (since deceased) came to Bombay Picnic Spot (hereafter referred to as BPS) on 22.8.1998 at about 10 P.M. and booked room No. 202 in BPS for stay for the night. Entries were accordingly made in the Hotel Register Ex.PU/1 at Sr. No. 5530. The room was duly occupied by the accused and the deceased. The check out time was 12 noon. On 23.8.1998 at 12.30 P.M., Keshav Chauhan (PW-24), the then General Manager BPS asked waiter Sandhya Dass (PW-4) to enquire from the accused and the deceased whether they wanted to further stay in the room or to check out. PW-4 found room No. 202 locked from outside and accordingly informed PW-24. Presuming that the accused and the deceased might have gone to Chintpurni, PW-24 awaited their return for about an hour but when they did not return, he handed over the duplicate key of the room to PW-4 Sandhya Dass and asked him to check the room. On checking, PW-4 found the dead body of the deceased in a semi naked condition lying in the bath room of the said room and informed PW-24 accordingly. Keshav Chauhan (PW-24) then reported the occurrence at Police Station, Amb vide report Ex .PO. Kailash Walia, the then SHO, Police Station, Amb (PW-25) went to BPS and inspected the place of occurrenece. After making inquiries on the spot, he sent ruqua Ex. PN/1 to Police Station, Amb for registration of a case whereupon formal FIR Ex. PN under Section 302 IPC was recorded at the Police Station. A dog squad was requisitioned by PW-25 to the spot. However, it proved of no help. Photographs of the dead body were taken by Ashwani Kumar (PW-2), the negatives whereof are Exs. P-4 to P-6 and the developed photographs are Exs. P-l to P-3. PW-25 prepared the site plan Ex. PX and inquest reports Exs. PA and PB. A dog squad was requisitioned by PW-25 to the spot. However, it proved of no help. Photographs of the dead body were taken by Ashwani Kumar (PW-2), the negatives whereof are Exs. P-4 to P-6 and the developed photographs are Exs. P-l to P-3. PW-25 prepared the site plan Ex. PX and inquest reports Exs. PA and PB. The post mortem of the dead body was conducted by Dr. S.K. Nanda (PW-16) who prepared and issued the post mortem report Ex. PS. He, however, reserved his opinion regarding cause of death till the chemical examination of viscera which was sent to State Forensic Science Laboratory for analysis. Vide report Ex. PP given by the Assistant Director of the said Laboratory, aluminium phosphide and nitrazapam were found in the viscera. After receipt of this report, PW-16 opined that the cause of death of the deceased was poisoning. A party headed by ASI Avtar Singh (PW-18) was deputed to verify the address as given by the accused in the Hotel Register but on verification, it was found that the given address was incorrect. On 24.8.1988, the investigating officer took in possession Salwar Ex.P-9, chappal Ex.P- 10, water bottle Ex.P-11, packet of condom Ex.P-12, strip of diaband Ex.P-13, Hajmola Ex.P-14, a phial of liquid Gelusil Ex.P-15, empty cigarette packet Ex.P-16 and Chuni Ex.P-17 from room No. 202 of BPS vide memo Ex. PD. One glass (Ex.P-8) which was giving foul smell was also taken in possession vide recovery memo Ex. PC. The extract of the registercontaining the entry of the accused Ex. PB was also taken in possession vide memo Ex. PQ. On the basis of the photographs, Exs. P-l to P-3, the identity of the deceased was established as Neelam Kumari, resident of Dhuri Line, Muradpura, Ludhiana. On further investigation, it was found that the father of the accused and the accused had illicit relations with the deceased. PW-25 went to Ludhiana on 28.8.1998 but the house and factory of the accused were found locked. It was also found that on 22.8.1998 accused had gone to the house of the deceased. On 29.8.1998, the accused was arrested from the house of his uncle Kuldip. It was further found that the accused was also involved in the murder of two daughters of the deceased, namely, Mamta and Puja for which the cases against him were registered at Ludhiana. On 29.8.1998, the accused was arrested from the house of his uncle Kuldip. It was further found that the accused was also involved in the murder of two daughters of the deceased, namely, Mamta and Puja for which the cases against him were registered at Ludhiana. During the course of investigation, the investigating agency made an application Ex. PJ to the Additional Chief Judicial Magistrate, Amb for conducting the identification parade of the accused. Initially, the accused agreed to take part in the identification parade vide his statement Ex.PJ/3 but subsequently, refused to take part in such test identification parade on the ground that the witness who was to identify him had seen him on the day prior to the date fixed for his identification parade. On the basis of another application Ex. PK moved by the police, specimen signatures of the accused Ex.PK/1 to Ex.PK/6 were obtained in the presence of the Additional Chief Judicial Magistrate and were sent to the handwriting expert for comparison with the signatures of the accused as in the Hotel Register. However, as per the report of the handwriting expert, no opinion could be given on the basis of the writings sent to him. The accused, however, refused to give further specimen writings/signatures on the ground that he has already given such writings/signatures. On interrogation during investigation, accused made a disclosure statement Ex .PF that the key of room No. 202 of BPS alongwith its ring. 8 medicine tablets, one dabbi containing tablets meant for preserving wheat seed and a polythene bag had been thrown by him in the bushes by the side of the road a little ahead of JCT Mill, Chohal while he was travelling in the bus to Ludhiana on 23.8.1998 and could get the same recovered. Pursuant to the said statement, the said articles were recovered by the police in the presence of witnesses on 5.9.1998 vide memo Ex. PG. Except the key of the hotel room, other articles were sealed on the spot. The key was applied to the lock of room No. 202 whereby the lock of the said room could be opened and locked. Thereafter, the said key was also sealed vide memo Ex. PH. PG. Except the key of the hotel room, other articles were sealed on the spot. The key was applied to the lock of room No. 202 whereby the lock of the said room could be opened and locked. Thereafter, the said key was also sealed vide memo Ex. PH. On being satisfied of the commission of murder of the deceased by the accused, the police submitted a charge sheet against the accused, who was tried by the learned Sessions Judge, Una on a charge under Section 302 IPC. 3. To prove the charge against the accused, the prosecution examined as many as 25 witnesses. 4. Statement of the accused under Section 313 Cr. P.C. was recorded wherein he denied the prosecution case as a whole and claimed that the present case has been engineered against him because of the hostility of the Ludhiana police against him and his brother. The accused led defence evidence and produced documents Ex.D-1 to Ex.D-3 in evidence. The learned Sessions Judge held the accused guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as aforesaid. Hence the present appeal. 5. We have heard the learned counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the records. 6. Be it stated at the very outset that there is no eye witness of the occurrence and to prove the charge against the accused, the prosectuion has led circumstantial evidence. 7. In convicting the accused under Section 302 IPC, the learned trial Judge relied on the following circumstances: (i) That the deceased and the accused were last seen together when they stayed in room No. 202 of BPS; and (ii) that the key of room No.202 of BPS, eight tablets of Aluminium Phosphide 56%(F) quickphos and eight tablets of Nitrazapam, contents whereof were found in the viscera of the deceased were recovered at the instance of the accused under Section 27 of the Evidence Act. 8. It is well established that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, those circumstances must, in the first place, be cogently established. 8. It is well established that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, those circumstances must, in the first place, be cogently established. Further, these circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. (See: Rama Nand & Ors. v. The Slate of Himachal Pradesh 1981 Cr. L.J. 298. 9. The Supreme Court in Jaharlal Dass v. State of Orissa 1991 Cr. L.J. 1809 while dealing with a case of rape and murder based on circumstantial evidence, has held as follows : "It is well settled that the circumstantial evidence in order to sustain Conviction must satisfy three conditions: (i) the circumstances from which an inference of guilt is sought to bedrawn, must be cogently and firmly established: (ii) those circumstances, should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should be incapable of explanation on any other hypothsis than that of the guilt of the accused." 10. The Supreme Court further sounded a word of caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the palce of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of innocence of the accused. 11. In Akhilesh Hajam v. State of Bihar 1995 Supp. (3) SCC 357, it has further been held that from the evidence it may appear that in all probability the accused may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. 11. In Akhilesh Hajam v. State of Bihar 1995 Supp. (3) SCC 357, it has further been held that from the evidence it may appear that in all probability the accused may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travellled between the expression "may be" and "must be". However strong the emotional considerations may be, but the same cannot take place of proof. 12. Bearing the above principles in mind, we now proceed to examine the circumstances relied upon by the learned Sessions Judge in convicting the accused for the commission of the offence of murder of the deceased. Circumstance No. 1 13. According to the prosecution the accused alongwith the deceased came to BPS on 22.8.1998 at about 10 P.M. and booked room No. 202 in BPS for stay for the night and they occupied the said room and were served supper and tea by PW-4. On the next day at about 1.30 P.M. the dead body of the deceased was found lying in semi naked condition in the bath room attached to said room No. 202 and the accused was found missing therefrom. To establish that the accused is the person who stayed in BPS with the deceased as aforesaid the prosecution examined the general manager of BPS (PW-24) and the waiter (PW-4) who attended upon the deceased and her companion. Both of these witnesses have stated that accused is the person who stayed in BPS with the deceased on the night intervening 22nd and 23rd August, 1998. There is no dispute that the accused was earlier not known to these witnesses. Therefore, it requires determination whether the accused has rightly been identified by the witnesses or not. 14. It is case of the prosecution that test identification parade of the accused could not be conducted as he refused to take part in the test identification parade. It is not disputed for the accused that he declined to take part in the test identification parade. In the ordinary circumstances, refusal of the accused to take part in the test identification parade may lead to inference adverse to the accused. It is not disputed for the accused that he declined to take part in the test identification parade. In the ordinary circumstances, refusal of the accused to take part in the test identification parade may lead to inference adverse to the accused. In the case at hand, however, the accused has explained his refusal to take part in the test identification parade on the ground that at one stage he was ready and willing to participate in the parade but at a later stage he refused because he was seen by the witness who was to identify him. This explanation offered by the accused does not appear to be unfounded. A perusal of the records reveals that PW-25 moved application Ex.PJ in the court of the learned Additional Chief Judicial Magistrate, Amb for conducting test identification parade and also produced the accused before him. In this situation, the learned Additional Chief Judicial Magistrate was expected to maintain record of the orders passed by him regarding the condition in which the accused was produced before him, fixing date and time for test identification parade, remanding him to judicial custody and directing the concerned authorities to ensure that the witness who was to identify the accused had no opportunity to see him before the test identification parade. However, there it-nothing on record which may show that the accused was produced before the learned Additional Chief Judicial Magistrate with covered face, that any date and time was fixed for conducting the parade after remanding the accused to judicial custody or that appropriate directions were given to ensure that the witness who was to identify the accused could not see the accused before the test identification parade. There is only an undated statement of the accused Ex.PJ/3 to the effect that the accused had no objection and was willing to take part in the parade. The statement Ex.PJ/3 thus clearly reveals that when initially produced before the Magistrate, the accused was ready and willing to take part in the parade. However, it appears from the contents of Ex.PJ/1 that when the learned Additional Chief Judicial Magistrate visited Sub Jail, Una on 31.8.1998 at 4.25 P.M. to conduct the parade the accused vide his statement Ex.PJ/2 refused to take part in the parade on the ground that the witness had seen him while he was in police custody. 15. However, it appears from the contents of Ex.PJ/1 that when the learned Additional Chief Judicial Magistrate visited Sub Jail, Una on 31.8.1998 at 4.25 P.M. to conduct the parade the accused vide his statement Ex.PJ/2 refused to take part in the parade on the ground that the witness had seen him while he was in police custody. 15. It was contended by the learned Additional Advocate General that refusal of the accused to take part in the test identification parade was without basis and he has not led any evidence to prove that he was seen by the concerned witness before the test identification parade could be held. The contention is liable to be rejected for the reason that it is for the prosecution to prove that the concerned witness had no occasion to see the accused nor he was shown to such witness after his arrest till the time fixed for test identification parade. The prosecution, however, has not led any cogent and trustworthy evidence to prove it. Therefore, no adverse inference can be drawn against the accused because of his refusal to take part in the test identification parade. 16. To establish the identity of the accused as the person who stayed in BPS on the fateful night with the deceased the prosecution further relied on his identification as such person by PW-4 and PW-24 at the police station respectively on 2.9.1998 and 1.9.1998. It is so stated by the investigating officer (PW-25). It is, however, not the case of the prosecution that such identification was in the presence of and before the punch witnesses. Thus the alleged identification being in the presence of and to the satisfaction of the investigating officer tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the bar of Section 162 of the Code of Criminal Procedure, hence inadmissible in evidence. 17. It was further contended by the learned Additional Advocate General that in any case the accused was identified by the material witnesses at the trial and there is no reason to disbelieve their version about the identification of the accused and that the learned trial Judge has rightly held the identity of the accused as established. 18. As already stated, admittedly the accused was earlier not known to the concerned witnesses i.e. PW-4 and PW-24. 18. As already stated, admittedly the accused was earlier not known to the concerned witnesses i.e. PW-4 and PW-24. Therefore, identification of the accused by them at the trial cannot be readily accepted. PW-25 has stated that PWs 4 and 24 had given the description of the person who stayed with the deceased. However, at the trial none of these witnesses had stated about such description nor their having identified the accused as such person on the basis of such description. On the contrary, PW-4 in his cross-examination has stated as follows: "I cannot identify all the customers who had stayed in the hotel on that day. It is correct that I can only identify by guessing that such and such customers happened to stay in our hotel. I cannot say that what had been ordered for supper by the other customers who had stayed in the hotel on that day. I do not remember that at what time I had supplied tea and meals to the customers staying in the hotel in other rooms than room No. 202. It is correct that the customer when enters the hotel goes to the receiptionist of the hotel. Keshan Chauhan was receptionist - cum -Manager on that day. It is correct that I have stated today that the accused was the same person at the behest of the policemen." 19. In view of the above admission of PW-4, particularly the admission that he had identified the accused at the behest of police, his statement could not be relied upon to establish the identity of the accused. 20. PW-24 admittedly booked room No. 202 for a couple and one kid. It is admittedly so entered in the Register. He has identified the accused as the person who booked the room for his wife and child also. It is not the case of the prosecution that any child also stayed in room No. 202 for the relevant night. Admittedly, this witness is not in a position to identify other persons who stayed in BPS on the fateful night. In view of these admitted facts, the identification of the accused by this witness is also untrustworthy and unreliable. 21. Admittedly, this witness is not in a position to identify other persons who stayed in BPS on the fateful night. In view of these admitted facts, the identification of the accused by this witness is also untrustworthy and unreliable. 21. The above discussion leads us to the conclusion that the prosecution has failed to establish that it was the accused and accused alone who stayed with the deceased in room No. 202 on the fateful night and was last seen with her before her death. Circumstance No.2 22. Be it stated at the very outset that it is a rule of caution and prudence not to accept the evidence of recovery if the investigating officer does not seal the recovered article at the spot or the link evidence is not adduced during the trial to prove that the article produced before the Court is the same which was recovered at the instance of the accused. 23. In the case in hand, the version of the prosecution is that while in custody the accused made disclosure statement Ex. PF to PW-25 in the presence of PW-8 Bidhi Chand and one Nanak Singh. As per the contents of Ex. PF, the accused disclosed that key of room No. 202 of BPS alongwith key ring, 8 tablets of medicine 10 No. and one "Gol Dabbi Kanak men dalne wali golian" which were in a polythene bag had been thrown by him at a place at some distance from two PCOs ahead of JCT Mill Chohal. This statement had been recorded on 5.9.1998 i.e. after about two weeks of the occurrence and on the 7th day of the arrest of the accused. Disclosure statement made after the delay as aforesaid cannot be readily accepted as voluntarily made and has to be read with caution. It is more so in view of the fact that the names of the medicines (tablets) are not specifically given in the said disclosure statement. 24. The recovery pursuant to the statement Ex. PF is stated to have been made vide memo Ex.PG. in the presence of PW-8 and one Nanak Singh. As per the contents of Ex.PG accused got recovered a black polythene bag Ex.P-18 containing tube of aluminium phosphate Ex. P-19, strip of Nitrazapam Ex.P-20 and key alongwith key ring Ex.P-21. 24. The recovery pursuant to the statement Ex. PF is stated to have been made vide memo Ex.PG. in the presence of PW-8 and one Nanak Singh. As per the contents of Ex.PG accused got recovered a black polythene bag Ex.P-18 containing tube of aluminium phosphate Ex. P-19, strip of Nitrazapam Ex.P-20 and key alongwith key ring Ex.P-21. However, the key and ring were not sealed on the spot but were handed over to Nanak Singh and other articles were sealed and the seal was handed over to Nanak Singh. According to the prosecution, key and ring Ex.P-21 were then taken from Nanak Singh, they were got applied from the accused to the lock of room No. 202 which was opened, then locked and the key was thereafter sealed. Nanak Singh has, however, not been produced to state on oath about this version. PW-8 has not stated that this key was ever sealed or identified as key of room No. 202 by anyone. 25. It is admitted case of the prosecution that there were duplicate keys of room No. 202, one of which was used to open the lock of the room on 23.8.1998. However, the second key had not been taken in possession to lend credibility to the version. Thus non sealing of the key Ex.P- 21 on the spot at the time of recovery, non production of Nanak Singh, and the seal used for sealing the recovered articles, there being no mention of the medicines in the disclosure statement and no attempt by the investigating agency to get the allegedly recovered medicines chemically analysed to find out the composition thereof, render this circumstance also of highly doubtful nature, hence unreliable. 26. It was contended by the learned counsel for the accused that according to the prosecution the Gilas recovered by the police from room No. 202 vide memo Ex. PC contained fingerprints and some other articles of glass were also recovered from the room vide memo Ex. PD. However, no attempt was made to compare the fingerprints thereon with those of the accused, therefore, adverse inference ought to have been drawn by the trial Court against the prosecution. 27. It is admitted case of the prosectuion that during investigation, a few glass articles viz. PD. However, no attempt was made to compare the fingerprints thereon with those of the accused, therefore, adverse inference ought to have been drawn by the trial Court against the prosecution. 27. It is admitted case of the prosectuion that during investigation, a few glass articles viz. a Gilas admittedly having finger prints, water bottle, vial of hazmola tablets and vial of gelucil MPs were taken in possession from room No. 202. However, no evidence has been led to show that any attempt was made by the investigating agency to establish that fingerprints on these articles particularly the Gilas having such prints were of the accused. An inference adverse to the prosecution has thus to be drawn. 28. It was also contended by the learned counsel for the accused that phosphorus is a foul smelling substance and cannot be administered to a person unless force is used. However, no injury was found on the person of the deceased. Therefore, contended the learned counsel, the prosecution has failed even to prove that it was a case of homicide and not of suicide. 29. In view of the conclusions already recorded by us, it is not necessary to go into a detailed examination of the contention raised. Suffice to say that the contention does create a doubt about the version of the prosecution. 30. For the reasons recorded hereinabove, the accused could not be held guilty of the commission of murder on the basis of the circumstances relied upon by the learned Sessions Judge, therefore, the impugned conviction and sentence cannot be sustained. 31. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. The accused be set at liberty forthwith if not required to be detained in custody in any other case.