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2001 DIGILAW 135 (HP)

RAKESH KUMAR v. STATE OF H. P.

2001-07-06

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The appellant, hereinafter referred to as the accused, stands convicted by the learned Sessions Judge, Chamba, in Sessions Case No. 2/of 1998 vide judgment dated 3.11.1999 for the offence under Section 302, Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000. In default of payment of fine, the accused has been sentenced to undergo simple imprisonment for a further period of six months. 2. Briefly, the prosecution story is this. The deceased Km. Anju daughter of PW 1 Jagat Ram of village Salwan, Tehsil and District Chamba, was having a love affair with the accused, who is distantly related to her as a paternal uncle. Such affair was not to the liking of the parents of the deceased. The accused was also having friendly relations with PW 2 Manoj Kumar, the brother of the deceased. On 25.4.1998, the accused had visited the house of PW 2 Manoj Kumar and remained with him for about two hours. When the accused was still in the company of PW 2 Manoj Kumar at his house, the deceased left for the jungle to graze her cattle. After sometime the accused also left the house of PW 2 Manoj Kumar. In the meantime it started raining. PW 4 Smt. Tulsi, the mother of the deceased, went to the jungle in order to deliver a shawl to the deceased. She found the accused and the deceased sitting together and talking to each other. She inquired from the accused as to why he was sitting there, upon which the accused replied that he was having some work with the deceased. PW 4 Smt. Tulsi then reprimanded both the deceased and the accused and also directed the deceased to return home alongwith the cattle. She also asked the accused to go away. The deceased after some time returned home. The accused followed her to her house. PW 4 Smt. Tulsi again reprimanded the accused for his conduct and asked him to leave. On having been asked by her mother, the deceased told her that she was being harassed by the accused for the last about two hours. 3.. At about 7.30 p.m. when the meals were to be taken, PW Tulsi Devi found that the deceased was not present in the house. She asked her son PW 4 Manoj Kumar to search for her. 3.. At about 7.30 p.m. when the meals were to be taken, PW Tulsi Devi found that the deceased was not present in the house. She asked her son PW 4 Manoj Kumar to search for her. PW 4 Manoj Kumar accompanied by one Bittu went out in search of the deceased. She could not be found. 4. PW 1 Jagat Ram returned home from work at about 8 p.m. He was told by his wife PW 4 Smt. Tulsi about the deceased being missing from home since about 7.30 p.m. PW 1 Jagat Ram also carried out a search for the deceased the whole night but the deceased could not be found. A search was also carried out even on the following day, that is, 26.4.1998. It was at about 3 p.m. or 4 p.m. on 26.4.1998 that PW 3 Kartar Singh informed PW 1 Jagat Ram that he had seen the deceased lying dead in the field near a "Fig" tree in village Banasti. On such information, PW 1 Jagat Ram alongwith certain other persons went to the spot where he found the dead body of the deceased Km. Anju. A piece of wire was found wrapped around her neck and one end of such wire was found tied to a "Fig" tree. Thinking that the deceased might still be alive he unfastened the wire from the neck of the deceased but the deceased Was already dead. Information was given to the police telephonically, on the basis of which PW 15 Sub-Inspector Sadhu Ram, the then Additional Station House Officer of Police Station, Sadar Chamba came to the spot. Since it was quite late by then, the place where the dead body was found was secured and no further action was taken. 5. On 27.4.1998 at about 6.30 a.m. the statement (Ex. PA) of PW 1 Jagat Ram under Section 154, Code of Criminal Procedure was recorded wherein he expressed a suspicion that his daughter Km. Anju might have been murdered by the accused and Devinder Kumar alias Vicky. On the basis of such statement, a case for the offence under Section 302, Indian Penal Code, came to be registered vide FIR No. 99 of 1998 (Ex. P5). 6. The dead body of the deceased Km. Anju was sent for post mortem which was conducted by PW 10 Dr. D.P. Dogra and one Dr. Anju Puri. On the basis of such statement, a case for the offence under Section 302, Indian Penal Code, came to be registered vide FIR No. 99 of 1998 (Ex. P5). 6. The dead body of the deceased Km. Anju was sent for post mortem which was conducted by PW 10 Dr. D.P. Dogra and one Dr. Anju Puri. They found two circumfrential ligatures marks with inverted V near the occiput 12" in length and thickness of 1/4". The mark was in the form of a grove with pale base, hard, leathery, parchment like margins dark coloured chocolate brown. There was an abrasion near the ligature mark extending from hyoid cartilage area to 4 cm. below. The whole face was congested. Neck elongated with ligature groved 2 to 3 complete and 2 to 3 incomplete. 7. In the opinion of the doctors conducting the post mortem, the deceased had died due to asphyxiation. The injuries on the person of the deceased were opined to be homicidal in nature. 8. During the course of investigation it was revealed that the accused had sent a threatening letter Ex. PD to PW 4 Manoj Kumar the brother of the deceased. Such letter was taken into possession by the Investigation Officer on the same having been produced before him by PW 4. Specimen handwriting of the accused was taken in the presence of the Chief Judicial Magistrate, Chamba and on comparison by PW 16 Shri N.C. Sood, a handwriting expert, the letter Ex. PD was found to be in the hand of the accused. 9. At the time of preparation of the inquest report, the Investigation Officer found the shoes of the deceased stained with mud. He scratched the mud there from and took such mud in possession alongwith the soil from the spot. Iron wire found tied to a Fig tree" was also taken into possession. 10. During the course of the search of the house of the accused a pent of the accused was recovered, which the accused was allegedly wearing on the day of occurrence. The lower portion of such pent was soiled with mud. From the pocket of such pent one handkerchief Ex. P 2 and one steel bangle Ex. P 3, which were identified by PW 4 Smt. Tulsi Devi to be belonging to the deceased were recovered. The lower portion of such pent was soiled with mud. From the pocket of such pent one handkerchief Ex. P 2 and one steel bangle Ex. P 3, which were identified by PW 4 Smt. Tulsi Devi to be belonging to the deceased were recovered. Certain other articles, namely, a diary, purse, some pieces of paper and an inland letter were also recovered from the house of the accused. A piece of wire found lying outside the house of the accused was also taken into possession. 11. A search was also carried out at the house of Devinder Kumar alias Vicky (the co-accused) and during such search a diary, letter and one handkerchief as also a packet of "Mala-D" tablets were recovered from a small trunk. All such articles were also taken into possession. 12. At the time of arrest, the accused was found wearing a shirt whose all but one buttons were found missing. From the pocket of such shirt letter Ex. P 2, purported to have been written \^y the deceased to Devinder Kumar alias Vicky was recovered and taken into possession. 13. The abovenamed Devinder Kumar alias Vicky was arrested on 28.4.1998. He on 30.4.1998 is alleged to have made a statement Ex. PK to the investigation officer and in pursuance of such statement he pointed out the place where he had kept the wire which was used to wrap around the neck of the deceased. He also pointed out the place where he and the accused are alleged to have committed the murder of the deceased. He further pointed out the place where the dead body was taken and tied to the "Fig" tree with the help of a wire and from where the dead body was ultimately recovered. 14. After the completion of investigation, the accused and Devinder Kumar were sent up for trial for the offence under Section 302 read with Section 34, Indian Penal Code. Both pleaded not guilty and claimed trial. 15. The prosecution in support of its case examined 16 witnesses in all. The defence of Devinder Kumar alias Vicky and that of the accused was that of denial simpliciter. No evidence in defence was led. 16. The learned Sessions Judge on consideration of the material placed before him acquitted Devinder Kumar alias Vicky of the offence under Section 302, read with Section 34, Indian Penal Code. The defence of Devinder Kumar alias Vicky and that of the accused was that of denial simpliciter. No evidence in defence was led. 16. The learned Sessions Judge on consideration of the material placed before him acquitted Devinder Kumar alias Vicky of the offence under Section 302, read with Section 34, Indian Penal Code. He, however, convicted and sentenced the accused for the offence under Section 302, Indian Penal Code as aforesaid. 17. Be it stated that the acquittal of Devinder Kumar alias Vicky as recorded by the learned Sessions Judge has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has, thus, become final. 18. The case of the prosecution against the accused is entirely based on circumstantial evidence. 19. It is well established principle of law that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, only 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 and others v. The State of Himachal Pradesh, 1981 Cr. LJ. 298). 20. The Supreme Court in Jaharlal Das v. State of Orissa, 1991 Cr.L.J. 1809, while dealing with a case of rape and murder based on circumstantial evidence, has held:— "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 be drawn, 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 also be incapable of explanation on any other hypothesis than that of the guilt of the accused."; 21. 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 however so strong cannot be allowed to take the place 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. 22. 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 travelled between the expression "may be" and "must be". However, strong the emotional considerations may be, but the same cannot take the place of proof. 23. In convicting the accused, the learned Sessions Judge has relied upon the following circumstances:— (a) The accused was having a love affair with the deceased and he was with the deceased in the jungle on 25.4.1998; (b) The accused was reprimanded by PW 4 Smt. Tulsi Devi, the mother of the deceased; (c) Threatening letter Ex. PD having been sent by the accused to PW 2 Manoj Kumar, the brother of the deceased; and (d) Recovery of handkerchief Ex. P 2 and steel bangle Ex. P3, belonging to the deceased, from the pent of the accused. 24. In the light of the principles discussed above with regard to circumstantial evidence, we now proceed to consider and examine the circumstances relied upon by the learned Sessions Judge and the reasons given in coming to the conclusion that the accused alone had committed the murder of the deceased Km. Anju, and none else. Circumstance (a): 25. In establishing the fact that there was a love affair between the deceased and the accused, the prosecution has placed reliance on the letter Ex. P 21 alleged to have been written by the deceased to Devinder Kumar alias Vicky. Anju, and none else. Circumstance (a): 25. In establishing the fact that there was a love affair between the deceased and the accused, the prosecution has placed reliance on the letter Ex. P 21 alleged to have been written by the deceased to Devinder Kumar alias Vicky. In this letter the deceased apart from having expressed her love to Devinder Kumar alias Vicky, has stated that she loved the accused also in the same manner as she loved Devinder Kumar alias Vicky. The fact brought on the record by the prosecution itself shows that the deceased was carrying on an affair with both the accused and Devinder Kumar alias Vicky. She was two timing both. 26. The letter Ex. P 21, as per the prosecution own case, was written by the deceased to Devinder Kumar. However, the same is shown to have been recovered from the accused. Nothing has come on the record to show as to how and in what manner such letter came in possession of the accused. Besides, the letter is undated. Therefore, it cannot be known as to when such letter was written. At any rate, the letter Ex. P 21 establishes that the deceased was having a love affair with the accused and Devinder Kumar alias Vicky at the same time. 27. It is not the case of the prosecution that the accused on coming to know that the deceased was also having an affair with Devinder Kumar alias Vicky, felt offended and cheated and that for this reason he eliminated her. Circumstance (b): 28. Even if it be assumed that the accused was reprimanded by PW 4 Smt. Tulsi Devi on 25.4.1998 in the jungle as well as her house as alleged by the prosecution the same would not give a cause to the accused to eliminate the deceased since he was not having any grudge against her. The grudge, if any, could have been against the parents of the deceased and as such he would not eliminate the deceased with whom he was in love. Therefore, in our opinion the learned Sessions Judge has erred in pressing into service this circumstance against the accused. Circumstance (c): 29. Much reliance has been placed on the letter Ex. PD containing a threat and alleged to have been written by the accused to PW 2 Manoj Kumar, the brother of the deceased. Therefore, in our opinion the learned Sessions Judge has erred in pressing into service this circumstance against the accused. Circumstance (c): 29. Much reliance has been placed on the letter Ex. PD containing a threat and alleged to have been written by the accused to PW 2 Manoj Kumar, the brother of the deceased. This letter has been proved to be in the hand of the accused by PW 16 Shri N.C. Sood, a handwriting expert on the basis of the comparison with the specimen handwriting of the accused obtained during the investigation under the orders of the Chief Judicial Magistrate, Chamba. 30. It has been contended by the learned Counsel for the accused that the evidence of the handwriting expert cannot be relied upon since the Chief Judicial Magistrate, Chamba, had no power to order and direct the accused to give his specimen handwriting for the purpose of comparison with the disputed handwriting. 31. On the other hand, the learned Assistant Advocate General has contended that a Magistrate in respect of an offence triable by himself or by the Court of Sessions, has the power to direct the accused to give his specimen handwriting or signatures and he shall not be deemed to have exceeded his powers under Section 73, Evidence Act, if in the interest of justice, he directs an accused appearing before him to give his sample writing to enable the same to be compared by a handwriting expert. In support of his contention the learned Assistant Advocate General placed reliance on the decision of the Honble Supreme Court in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14. 32. In the case relied upon by the learned Assistant Advocate General, the facts show that at the time the learned Magistrate directed the accused to give his sample writing, some enquiry proceedings were pending before him against the accused. The ratio laid down in the said case was distinguished by the Honble Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791. Dealing with the scope and ambit of Section 73, Evidence Act, it was held : "The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. Dealing with the scope and ambit of Section 73, Evidence Act, it was held : "The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. The clear implication of the words for the purpose of enabling the Court to compare is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency to compare. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a Civil Suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?" 33. Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?" 33. The Honble Supreme Court also referred to Section 5 of the Identification of Prisoners Act, 1920, which provides:— "If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Cr.P.C. 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken as the case may be, by a public officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding." It was held:— "There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and, second finger impressions are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Section 73 of the Evidence Act." 34. The Honble Court also made a suggestion that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920, to provide for the investiture of Magistrates with the powers to issue directions to any person including an accused person to give specimen signatures and writings. 35. The Honble Court also made a suggestion that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920, to provide for the investiture of Magistrates with the powers to issue directions to any person including an accused person to give specimen signatures and writings. 35. The above ratio was reiterated by the Honble Supreme Court in Sukhvinder Singh and others v. State of Punjab, JT 1994 (4) SC 1. It was held : "The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing for the purpose of enabling the Court to compare such writings with writings alleged to have been written by such person. The obvious implication of the words for the purpose of enabling the court to compare is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of enabling the court to compare and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceeding are pending in any court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial Court before which proceedings are pending requires the writing for the purpose of enabling it to compare the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his \ specimen handwriting to enable the Court by which he may be subsequently tried to compare it with the disputed writings. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his \ specimen handwriting to enable the Court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion, the court which can issue a direction to the person to give his specimen writing can either be the Court holding the enquiry under the Code of Criminal Procedure or the Court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words any person present in the court in Section 73 has a reference only to such person who are parties to a cause pending before the Court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the Court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application." 36. In the said case, the specimen writings of the accused therein were taken under the directions of an Executive Magistrate. No enquiry or trial was admittedly pending before such Executive Magistrate. It was held that under these circumstances the directions given by the Executive Magistrate to the accused to give his specimen writings were clearly unwarranted and not contemplated or envisaged by Section 73, Evidence Act. Such specimen writings therefore, could not be made use of during the course of trial and that the report of handwriting expert when considered in the light of such facts, is rendered of no consequence at all and cannot be used against the accused. 37. To the similar effect it has been held by a Division Bench of the Punjab and Haryana High Court in State of Haryana v. Jagbir Singh alias Lilu, 1996 Cr.L.J. 2545. 37. To the similar effect it has been held by a Division Bench of the Punjab and Haryana High Court in State of Haryana v. Jagbir Singh alias Lilu, 1996 Cr.L.J. 2545. 38. In the present case as well, the specimen writings of the accused Ex. PP/1 to Ex. PP/8 were taken under the directions of the Chief Judicial Magistrate on 2.5.1998 on an application having been made to him by the investigation officer. Admittedly, no proceedings against the accused were pending before the learned Magistrate at that time. Therefore, the direction of the learned Magistrate were unwarranted and not contemplated by Section 73, Evidence Act. As such the evidence of the handwriting expert (PW 16) is of no consequence and cannot be used against the accused to hold that letter Ex. PD was written by him to PW 2 Manoj Kumar. 39. If the evidence of the handwriting expert is ignored, there is no other evidence to show that letter Ex. PD was written by the accused. As such this circumstance cannot be used against the accused. The learned Sessions Judge has committed an error in relying upon the evidence of the handwriting expert. Circumstance (d) : 40. The next circumstance relied upon by the learned Sessions Judge is the alleged recovery of handkerchief Ex. P 2 and steel bangle Ex. P 3 from the pent of the accused. The handkerchief Ex. P 2 and steel bangle Ex. P 3 is stated to have been identified by PW 4 Smt. Tulsi Devi, the mother of the deceased, as belonging to the deceased. A steel bangle similar to Ex. P 3 is also shown to have been found on one of the wrist of the deceased. 41. Admittedly, no test identification parade in respect of handkerchief Ex. P 2 or steel bangle Ex. P 3 was got conducted during the investigation. PW 4 Smt. Tulsi Devi is shown to have identified Ex. P 2 and Ex. P 3 immediately on the same having been allegedly recovered from the pent of the accused. In the absence of a test identification parade in respect of Ex. P 2 and Ex. P 3 no reliance can be placed on the evidence of PW 4 Smt. Tulsi Devi as to the identification thereof. 42. There is yet another aspect of the case. Admittedly, the handkerchief Ex. P 2 and the steel bangle Ex. In the absence of a test identification parade in respect of Ex. P 2 and Ex. P 3 no reliance can be placed on the evidence of PW 4 Smt. Tulsi Devi as to the identification thereof. 42. There is yet another aspect of the case. Admittedly, the handkerchief Ex. P 2 and the steel bangle Ex. P 3 were neither recovered at the instance of the accused nor from his person. The same are shown to have been recovered from the pocket of a pent, alleged to be belonging to the accused, which is stated to have been recovered from the house of the accused. Such pent though is shown to have been taken into possession vide memo Ex. PC, the same was never produced in evidence. Nor the same was put to the accused in his statement under Section 313, Code of Criminal Procedure that it belonged to him. There is also no evidence to show that the pent from the pocket of which Ex. P 2 and P 3 were recovered actually belong to the accused. Therefore, this circumstance has not been conclusively proved and as such cannot be used against the accused. 43. Since none of the circumstances relied upon by the learned Sessions Judge stands cogently and firmly proved, the conviction and sentence imposed upon the accused cannot be sustained and the same are liable to be set aside. 44. As a result, the present appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge are set aside and the accused is acquitted of the offence under Section 302, Indian Penal Code. 45. The accused, who is in jail undergoing sentence, shall be set at liberty forthwith, if not required in any other case. The amount of fine, if already paid, shall be refunded to him forthwith. The case property shall be dealt with as per the directions of the learned Sessions Judge. Appeal allowed.