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Himachal Pradesh High Court · body

2013 DIGILAW 1035 (HP)

STATE OF H. P. v. Bhupinder Singh Alias Vicky

2013-12-19

KULDIP SINGH, MANSOOR AHMAD MIR

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JUDGEMENT KULDIP SINGH, J.- 1. THE acquittal of respondents by the learned Sessions Judge, Mandi on 29.6.2006 in Sessions Trial No. 30 of 2005 has been assailed by the State in the appeal. 2. THE prosecution case in brief is that on 31.12.2004 at about 12.05 a.m. a telephonic message was received by PW 11 HC Rajiv Kumar at Police Station, Sadar, Mandi from respondent No. 2, who requested that he wanted to talk to Station House Officer. Thereafter, respondent No. 2 told PW 17 N.K. Sharma, S.H.O., Police Station Sadar that his son respondent No. 1 had fired gunshots from gun Ext. P-9 killing Girdhari Lal and his wife Whether the reporters of the local papers may be allowed to see the Judgment? Yes Dumni Devi alias Kaushalya. The information given by respondent No. 2 was recorded in rapat rojnamcha vide entry Ext. PR. Thereafter PW 17 N.K. Sharma alongwith others rushed to spot i.e. Nichla Lot and found that dead-bodies of Girdhari Lal and Dumni Devi were lying in the verandah of respondent No.2. The respondent No. 1 was found inside the room, which was bolted from outside. The further case of the prosecution is that respondent No. 2 had informed relations of deceased Dumni Devi, next morning PW 1 Dile Ram brother of deceased Dumni Devi went to the house of respondents and found dead-bodies of his sister Dumni Devi and her husband Girdhari Lal lying in the verandah. On inquiry, he was told that respondent No. 1 shot them dead with gun Ext. P-9. The statement Ext. PA of PW 1 Dile Ram was recorded by PW 17 under section 154 Cr.P.C., rukka Ext. PA/1 was sent for registration of FIR, thereupon FIR Ext. PQ was registered and endorsement Ext. PQ/1 was made on the rukka. The Investigating Officer took photographs Ext. P-26 to P-49 of the dead-bodies with negatives Ext. P-50 to P-73. The inquest papers Ext. PK, Ext. PL, Ext. PM and Ext. PN were also prepared. The post mortem reports Ext. PX and Ext. PY of deceased Girdhari Lal and Dumni Devi were obtained. The recoveries were made, spot map was prepared, statements of the witnesses were recorded. The reports Ext. PAF and Ext. PAG from FSL Junga, Shimla were obtained. The inquest papers Ext. PK, Ext. PL, Ext. PM and Ext. PN were also prepared. The post mortem reports Ext. PX and Ext. PY of deceased Girdhari Lal and Dumni Devi were obtained. The recoveries were made, spot map was prepared, statements of the witnesses were recorded. The reports Ext. PAF and Ext. PAG from FSL Junga, Shimla were obtained. On completion of investigation, report under section 173 Cr.P.C. was submitted in the court, the respondents were committed to the court of Sessions. 3. THE charge was framed for offence punishable under section 302 IPC read with sections 25, 27 and 30 of Indian Arms Act. The respondents pleaded not guilty and claimed trial. The prosecution examined 17 witnesses. The respondents were examined under section 313 Cr.P.C, they denied the prosecution case and took the plea that they were falsely implicated. The respondents led no evidence in defence. On conclusion of trial, on 29.6.2006 the learned Sessions Judge acquitted both the respondents, hence appeal. 4. WE have heard the learned counsel for the parties and have also gone through the record. On behalf of the State, it has been argued that learned Sessions Judge has drawn wrong inferences and conclusions from the evidence. The evidence has been misconstrued and misinterpreted. The prosecution case, no doubt, is based upon circumstantial evidence, the prosecution has led enough evidence connecting various links, which lead to only inference that respondents have committed the offence for which they were charged. The law relating to circumstantial evidence has not been properly appreciated by the learned Sessions Judge while acquitting the respondents. The submission has been made for accepting the appeal and setting aside the impugned judgement. The learned counsel for the respondents has supported the impugned judgement. He has submitted that prosecution story is highly improbable. There are important and vital missing links in the prosecution case. There is no motive for the commission of the offence. The investigation is not fair. The respondents have been implicated falsely when investigating agency could not trace out the real culprit(s). The learned Sessions Judge has very capably scanned the evidence. The view taken by the learned Sessions Judge from the evidence cannot be faulted. There is no merit in the appeal. The prosecution case is based upon circumstantial evidence, therefore, it is profitable to refer to exposition of law of the apex court on circumstantial evidence. The learned Sessions Judge has very capably scanned the evidence. The view taken by the learned Sessions Judge from the evidence cannot be faulted. There is no merit in the appeal. The prosecution case is based upon circumstantial evidence, therefore, it is profitable to refer to exposition of law of the apex court on circumstantial evidence. In TULSHIRAM SAHADU SURYAWANSHI & ANR. Vs. STATE OF MAHARASHTRA (2012) 10 SCC 373 , it has been held as follows:- "8. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , this Court after referring to various earlier decisions, formulated the following conditions to be fulfilled before a case against an accused can be said to be fully established based on circumstantial evidence: (SCC p.185, paras 153-54) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] 19.........Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the. accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 5. accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 5. THE Supreme Court in G. Parshwanath vs. State of Karnataka (2010) 8 SCC 593 has held as follows:- "22. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". "23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. " 6. IN Birender Podder vs. State of Bihar (2011) 6 SCC 350 it has been held that for appreciating circumstantial evidence, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. It is well settled that if any hypothesis or possibility arises from the evidence which is incompatible with the guilt of the accused, in such case, the conviction of the accused which is based solely on circumstantial evidence is difficult to be sustained. The Supreme Court in Madhu vs. State of Kerala (2012) 2 SCC 399 has held that care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt. Thus keeping in view the law laid down by the Supreme Court, in the present case circumstantial evidence is to be appreciated. PW 17 N.K. Sharma, SHO, Police Station, Sadar Mandi has stated that at about 12.05 a.m. night, he attended telephone call of respondent No. 2 Raghubir Singh who told him that his son Bhupinder Rana alias Vicky respondent No. 1 had shot dead his uncle Girdhari Lal and aunt Dumni Devi alias Kaushalya Devi. This information was got recorded in daily diary at Sr. No. 35 Ext. PR. This information was got recorded in daily diary at Sr. No. 35 Ext. PR. He reached the spot at about 3.00 a.m. on 31.12.2004. He did not make any investigation between 3 a.m. to 9.30 a.m. on 31.12.2004. PW 1 Dila Ram brother of Dumni Devi came on the spot at 9.30 a.m. on 31.12.2004. He recorded his statement Ext. PA. PW 1 Dila Ram has stated that on being inquired he was told that accused Bhupinder alias Vicky had shot dead Girdhari Lal and his wife Kaushalya Devi. The deceased Girdhari Lal was the brother of Raghubir Singh respondent No. 2. In fact, Girdhari Lal, Raghubir Singh and Goverdhan were real brothers. The respondents were living in joint family with the deceased. The prosecution has not come forward imputing any motive to respondents for killing Girdhari Lal and Dumni Devi. The respondents have taken the plea of denial. Their defence is that since prosecution had failed to trace out the real culprits, therefore, they have been falsely implicated in the case. 7. THE respondent No. 2 was not in his house in village Nichla Lot at the time of occurrence. PW 2 Brestu Ram is immediate neghbour of respondents in village Nichla Lot. He has stated that on 30.12.2004 at about 9- 9.30 he heard report (sic sound) of the gun and in the meantime PW 13 Smt. Narbada Devi wife of younger brother of respondent No. 2 told him that some incident had taken place at her house or there was bursting of electricity meter. Moti Ram PW 5 also came there, who told that dead bodies of Girdhari Lal and his wife were lying in the house of accused. On this, he made a telephonic call to respondent No. 2 at Mandi and told him regarding the deaths of Girdhari Lal and his wife in his house. Thereafter Raghubir Singh came and he alongwith Raghubir Singh went to the place of occurrence and found the dead bodies of Girdhari Lal and his wife lying in the verandah. 8. THERE is no eye witness of the occurrence. PW 3 Kishan Chand uncle of deceased Girdhari Lal and also resident of village Nichla Lot has stated that on 30.12.2004 at about 9 p.m. he was at his home. 8. THERE is no eye witness of the occurrence. PW 3 Kishan Chand uncle of deceased Girdhari Lal and also resident of village Nichla Lot has stated that on 30.12.2004 at about 9 p.m. he was at his home. PW 5 Moti came to his house and told him that Girdhari Lal and his wife had died on account of some incident. He went to the house of accused and found dead-bodies of Girdhari Lal and his wife in the verandah. Bhupinder was weeping outside. He was declared hostile, in the cross-examination conducted by prosecutor, he denied that PW 5 Moti Ram told him that accused Bhupinder had killed Girdhari Lal and his wife with gun fire. PW 5 Moti Ram in his statement in the court has not stated that Bhupinder told him that he had killed Girdhari Lal and his wife. Pw 4 Kishan Singh came to the spot at about 6.00 a.m. on 31.12.2004, he is not an eye witness or a witness to the incident immediately after the occurrence. Pw 5 Moti Ram a resident of village Nichla Lot has stated that on 30.12.2004 at about 8.30 p.m. he left towards the house of accused to open the tap for collecting water. He found Smt. Khimi Devi weeping and dead-bodies of Girdhari Lal and his wife were lying there. Khimi Devi had not told him regarding the cause of death of deceased Girdhari Lal and his wife. He was declared hostile and cross-examined by the prosecutor. In the cross-examination conducted by the prosecutor, he has stated that he did not hear the report (sic sound) of gun when he left the house to open the tap. In cross- examination conducted by the defence he has stated that his house is at a distance of 150 meters from the house of the accused. 9. PW 6 Besar Singh is the son of deceased Girdhari Lal. He has stated that he came to know telephonically the death of his parents on 1.1.2005 at 4.30 p.m. at Shimla. He further stated that prior to the incident, there was a joint family and they were living amicably with the accused. The expenses of the marriage of his sister were borne by accused Raghubir and Goverdhan. PW 7 to PW 10 are formal witnesses. He further stated that prior to the incident, there was a joint family and they were living amicably with the accused. The expenses of the marriage of his sister were borne by accused Raghubir and Goverdhan. PW 7 to PW 10 are formal witnesses. PW 11 HC Rajiv Kumar has stated that on 30/31.12.2004 at 12.05 a.m. he received a telephonic message from Raghubir Singh, who told him that he wanted to talk to S.H.O. After talk, SHO told him that Raghubir Singh had telephonically informed him that his son Bhupinder alias Vicky had fired upon his uncle Girdhari Lal and aunt Dumni Devi resulting in their deaths. 10. PW 13 Narbada Devi is the sister-in-law of respondent No. 2 Raghubir Singh. She is married to Govardhan Singh younger brother of Raghubir Singh. She is an important witness. She has stated that in the year 2004 they were living jointly, she was nursery teacher. On 30.12.2004 she returned to her home at about 5.00 p.m. She, deceased Girdhari Lal, Dumni Devi alias Kaushalya, her mother-in-law and respondent No. 1 Bhupinder Singh were at home. All of them took meals. Her mother-in-law was watching TV in her room. After taking meals Girdhari Lal went outside, Dumni went to churn the milk. She went to see TV in the room of her mother-in-law after completing her kitchen work. Pw 13 continued, she heard the sound of an explosive, she went out and saw smoke in the verandah and went to the house of Barestu to inform him about the incident. On return alongwith Barestu she saw the dead-bodies of Girdhari Lal and Dumni in the verandah. She was declared hostile and was cross- examined by the prosecutor. A suggestion was put to her in the cross-examination by the prosecutor, which she admitted correct that after meals she alongwith Dumni Devi, Girdhari Lal and mother-in-law were watching TV in the room of her mother-in-law. She denied that the moment Dumni left her room and reached the verandah, she heard two gun fires one after other. She rather volunteered that report (sic sound) of the gun was heard after 25-30 minutes when Girdhari Lal and Dumni left the room. She also denied that at that time Bhupinder was inside his room and was openly claiming that if anybody come before him he would kill. 11. She rather volunteered that report (sic sound) of the gun was heard after 25-30 minutes when Girdhari Lal and Dumni left the room. She also denied that at that time Bhupinder was inside his room and was openly claiming that if anybody come before him he would kill. 11. PW 13 in the cross-examination conducted by the defence has stated that accused Bhupinder used to sleep in the room where there was TV and her mother-in-law also used to sleep. After taking meals accused Bhupinder came to the room where TV was kept. Raghubir and his wife used to sleep in the last room of the house. She answered in affirmative that when she heard the explosive sound, she and Bhupinder were watching TV. She also admitted that Raghubir had kept his gun in the almirah of his room. 12. PW 14 Dr. Jiwa Nand Chauhan, who conducted post mortem on the dead-body of Girdhari Lal has stated that there were multiple separate entry shot gun wounds, nearly round with narrow marginal abrasions, dry clotted blood over and around wounds scattered in left shoulder, upper part of chest left sides above fifth rib towards shoulder joint, of variable sizes and depth. He found other several injuries on the body of Girdhari Lal. The injuries were ante mortem in nature. In his opinion, the deceased died due to combined effect of shot gun injuries to vital organs and haemorrhagic shock within few minutes. The time between death and post mortem according to him was between 12 to 24 hours. Pw 14 also found on the body of Dumni Devi multiple separate entry shot gun wounds, nearly round with narrow marginal abrasions, dry clotted blood over and around wounds present on the whole of the right shoulder, lateral side of right upper arm, infrascapular region right side and inter scapular near 2nd, 3rd and 4th thorasic spine entering the body up to variable depths. He found other injuries also on the body of Dumni Devi. In his opinion, the deceased died due to combined effect of shot gun injuries to vital organs and haemorrhagic shock within few minutes. The time between death and post mortem according to him 12 to 24 hours. 13. THE presence of respondent No. 1 Bhupinder Singh alias Vicky at or around the time of occurrence in the joint house of the respondents and deceased has been established. The time between death and post mortem according to him 12 to 24 hours. 13. THE presence of respondent No. 1 Bhupinder Singh alias Vicky at or around the time of occurrence in the joint house of the respondents and deceased has been established. It has been proved that at the relevant time PW 13, deceased Girdhari Lal, Dumni Devi, Khimi Devi mother of respondent No. 2, Bhupinder Singh and respondent No. 1 were in the house. They took meals. Thereafter Girdhari Lal went outside, Dumni Devi went to churn the milk. PW 13 has stated that she heard the sound of the gun shot after 25-30 minutes when Girdhari Lal and Dumni Devi left the room. The prosecution case is that respondent No. 1 with gun Ext. P-9 for which respondent No. 2 had the licence, shot dead both Girdhari Lal and Dumni Devi. He fired gun shots from the ventilator of room-C shown in the site plan Ext. PY/1. Khimi Devi mother-in-law of PW 13 and others were watching TV in room-E shown in site plan Ext. PY/1. PW 13 has stated that after taking meals Bhupinder came to the room where TV was kept. She has also stated that when she heard the explosive sound, she and Bhupinder were watching TV. This version of PW 13 has completely demolished the prosecution case. PW 13 is closely related to respondents, but she was equally and closely related to deceased also. The deceased Girdhari Lal, respondent No. 2 Raghubir and Goverdhan Singh husband of PW 13 are real brothers. 14. IT is not necessary for the prosecution to prove the motive always to secure conviction but sometimes in order to appreciate the prosecution case motive becomes relevant and present case falls in that category. PW 6 Besar Singh, who is none else but son of the deceased Girdhari Lal has stated that prior to the incident there was a joint family and they were living amicably with the accused. The expenses of the marriage of his sister were borne by accused Raghubir and Goverdhan. The prosecution has not led any evidence that in the past or immediately prior to the occurrence some altercation took place between respondent No. 1 and deceased or there was any other dispute between the respondents and deceased or their families. The expenses of the marriage of his sister were borne by accused Raghubir and Goverdhan. The prosecution has not led any evidence that in the past or immediately prior to the occurrence some altercation took place between respondent No. 1 and deceased or there was any other dispute between the respondents and deceased or their families. It is not understandable in these circumstances why a close relative would kill another person of the same joint family with whom he has amicable relations. In the FSL report Ext. PAG, it has been opined that there was evidence of fire in the barrel of Ext-1 SBBL gun but it was not possible to fix the time when those fires were shot. The gun Ext. P-9 was recovered from room-C shown in site plan Ext.PY/1. In fact, the prosecution case is that gun shots were fired from gun Ext.P-9 through ventilator of the room-C. In normal circumstances, a ventilator in a room is fixed above the shoulder height of a normal height person. There is no worth believing evidence that respondent No.1 used some stool etc. for reaching up to the level of ventilator so that position of gun could come in line with the deceased. No doubt, in the photographs bed is lying in the room but there is no evidence that bed was used by respondent No. 1 for firing the gun shot. There is yet another unexplained circumstance, which creates suspicion in the prosecution story, according to which fires were shot through the ventilator. It is the case of the prosecution that deceased were fired at in the verandah. There is no evidence that for some reason the respondent No. 1 was prevented for using/ opening the door of room for firing at the deceased. Why the respondent No. 1 had chosen ventilator to fire at the deceased instead of opening the door etc. in case he wanted to actually kill the. deceased. This creates suspicion in the prosecution story. 15. IT has come in evidence that no finger prints were lifted from the gun which could have established whether the gun was actually handled by respondent No. 1. The conduct of respondent No. 1 is also relevant inasmuch as he did not abscond from the spot. He remained very much in the house. 15. IT has come in evidence that no finger prints were lifted from the gun which could have established whether the gun was actually handled by respondent No. 1. The conduct of respondent No. 1 is also relevant inasmuch as he did not abscond from the spot. He remained very much in the house. PW 5 Moti Ram has stated that he went to the house of accused and found dead bodies of Girdhari Lal and his wife in the verandah. Bhupinder was weeping outside. It means respondent No. 1 was also in grief on account of deaths of his real uncle and aunt. The statement of PW 5 also contradicts the prosecution story that after the occurrence, respondent No. 1 was bolted from outside in his own room from where he fired at the deceased. 16. PW 17 N.K. Sharma SHO, Police Station, Sadar Mandi or PW 11 did not state that they identified Raghubir Singh's voice on telephone, which Raghubir Singh had allegedly made to PW 11 or PW 17. The prosecution has also not produced record from telephone department connecting the talk of Raghubir Singh with PW 11 or PW 17 on 31.12.2004 at about 12.05 a.m. The respondent NO. 2 Raghubir Singh has denied that he informed the police at 12.05 a.m. on 31.12.2004 that his son Bhupinder alias Vicky had killed Girdhari Lal and his wife. The statements of PW 11 and PW 17 that Raghubir Singh stated on telephone that his son had killed Girdhari Lal and his wife cannot be believed.. There is yet another aspect of the case. PW 17 investigating officer has admitted that he reached the spot at 3.00 a.m. on 31.12.2004, but he recorded statement Ext. PA of PW 1 under section 154 Cr.P.C. at about 9.00 a.m. PW 1 is not an eye witness. There is no explanation why PW 17 waited for six hours for recording the statement of PW 1 under section 154 Cr.P.C. It is not the prosecution case that other persons who reached the spot almost immediately after the occurrence did not cooperate for recording statement under section 154 Cr.P.C. There is substance in the submission of defence that when investigating agency could not trace out the real culprit(s) then the respondents were falsely implicated in the case. 17. IT has come in evidence that gun Ext. 17. IT has come in evidence that gun Ext. P-9 used to be kept by respondent No. 2 in almirah, therefore, it can be safely inferred that respondent No. 2 took sufficient care and caution for proper and safe custody of the gun. Therefore, no offence under the Arms Act has also been proved against the respondents. The learned Sessions Judge has properly appreciated the evidence. In appeal against acquittal merely other view is possible is no ground to convert acquittal into conviction. The prosecution has miserably failed to prove chain of circumstances against the respondents so as to hold them guilty. In fact, there are no worth believing chain of circumstances on record to convert the acquittal of respondents into conviction. There is no merit in the appeal. 18. IN view of above, the appeal fails and is dismissed, the bail bonds of the respondents are discharged.