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2013 DIGILAW 365 (HP)

State of Himachal Pradesh v. Pawan Kumar

2013-04-30

RAJIV SHARMA, SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J. (oral) The acquittal of the respondent for the offence of murder of Sh. Rachhpal Singh is challenged by the State by High Court of H.P. filling the present appeal. 2. Heard and gone through the record of the case. The entire case of the prosecution hinges on the circumstantial evidence of ‘last seen’. For that the prosecution has mainly relied upon the statements of PW.4 Sh. Ashok Kumar, PW.10 Sh. Ram Krishan Sharma and PW.11 Smt. Raj Rani. 3. Precisely, the case of the prosecution is that on 13.4.2003, at about 9 P.M., the respondent (hereinafter to be referred as ‘accused’) after having liquor bout with Rachhpal (deceased) took him to a lonely place near to their village, known as Badotar-band, where he allegedly assaulted him with stones, kick and fist blows to death. Thereafter, the accused left the place and went missing. 4. The dead body of the deceased was subjected to autopsy. Deceased clothes found on the body were taken into possession and sent for chemical examination. Viscera of the deceased was also preserved and sent for chemical examination, which contained the alcohol. After amount 10 months, ultimately on 6.2.2004, the accused was arrested by the police after laying a Naka. The police banked upon the identification of the place of the alleged incident and that was the only evidence against the accused, on which the police investigation concluded that the accused was connected with the alleged commission. 5. After completing investigation, challan was presented in the Court for trial of the accused. Accordingly, the accused was charge sheeted under Section 302 Indian Penal Code to which he pleaded not guilty and claimed trial. 6. To prove its case prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. No incriminating circumstance was found attended against him, and as such he was acquitted of the offence under Section 302 Indian Penal Code. Hence, the challenge in the present appeal by the State. 7. The entire case of the prosecution hinges upon the circumstantial evidence. No incriminating circumstance was found attended against him, and as such he was acquitted of the offence under Section 302 Indian Penal Code. Hence, the challenge in the present appeal by the State. 7. The entire case of the prosecution hinges upon the circumstantial evidence. In Sharad Birdhichand Sarda versus State of Maharashtra, AIR 1984 SC 1622 , Supreme Court laid down certain conditions which must be fulfilled before a case against accused, based on circumstantial evidence, can be said to be fully established which has also been relied upon in Param Jeet Singh @ Pamma versus State of Uttarakhand, (2010) 10 SCC 439 and can be summed up as under which are considered to be the golden principles:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (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 explained on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) That 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. 8. The case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 9. To sum up, it can be said that the principle for basing a conviction on the basis of the circumstantial evidence is, each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of evidence from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. 10. 10. It is also well settled as held by the Apex Court in more than one decision that the Courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometime; unconsciously it may happen to be a short step between moral certainty and legal proof. In this behalf, reference can be made to the judgment of the Apex Court in Wakkar and another versus The State of U.P. JT 2011 (2) SC 502. 11. In Param Jeet Singh’s case (supra), while discussing the standard of proof, the Supreme Court observed that a criminal trial is not a fairy tale wherein one is free to give flight to one’s imagination and fantasy. Crime is an even in real life and is the product of interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The Court must bear in mind that “human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.” Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the Court to punish the accused on the basis of a moral conviction or suspicion alone. 12. “The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence”. In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. 13. Therefore, the circumstances put forth by the prosecution have to be examined dispassionately on the well settled judicial parameters, as discussed above. 14. 13. Therefore, the circumstances put forth by the prosecution have to be examined dispassionately on the well settled judicial parameters, as discussed above. 14. PW.4, Sh. Ashok Kumar stated that on 13.4.2003 at about 12.15 P.M., when he was present at Talwada, deceased Rachhpal and accused met him in the bazaar. Deceased Rachhpal expressed desire to have liquor together, but he refused, as he had to purchase certain items from the bazaar. Thereafter, he boarded the bus and went away. He further stated that the accused and deceased Rachhpal had also boarded the same bus at around 2.15 P.M. and they were under the influence of liquor. When the bus reached near Kudhre, he got down from the bus and accused and decease, both remained sitting in the bus. Later on, he came to know that Rachhpal was taken to hospital and on the intervening night of 14/15.4.2003, died. In cross examination, he stated that there was no enmity between the deceased and the accused. He further stated that he could not tell the dates and day of visiting Talwada prior to 13.4.2003. 15. PW.10, Sh. Ram Krishan Sharma stated that about two years back, he had seen the accused and deceased Rachhpal proceeding towards Gulaldhar on the road. The time was around 5 P.M. and in addition he had no idea of any occurrence. 16. PW.11, Smt. Raj Rani stated that she was running a tea and Karyana shop at Kotla. The accused and deceased had visited her shop 2-3 years back in the evening at about 4 P.M. Both were under the influence of liquor and asked her to prepare eggs, but she refused to do so and asked them to leave the place immediately. Thereafter, they left towards their houses. In cross examination, she stated that police had called her in February, 2004 in connection with the case. 17. In addition, the prosecution has also placed reliance on the statement of PW-2, Sh. Rajneesh Sharma, Pradhan of Gram Panchayat. He stated that on 13.4.2003, at around 9.15 P.M. he was present at his house, Ashok Kumar and Jodh Singh came to his house and informed him that deceased Rachhpal Singh was lying unconscious at Badotar in injured condition. He along with Dharam Pal, Ward Panch and some other persons visited the spot and took the injured to CHC, Dehra for medical treatment. He along with Dharam Pal, Ward Panch and some other persons visited the spot and took the injured to CHC, Dehra for medical treatment. He had made an attempt to know about the persons involved in the alleged offence, but he could not get any clue, as such he made the statement under Section 154 Cr.P.C. Ext.PW.2/A to the police. On the basis of which, FIR was lodged and on 14.4.2003. The police visited the spot and during investigation took into possession blood stained earth from the spot, vide seizure memo Ext.PW.2/C. They also took into possession a big stone lying on the spot, which was near the dead body. He further stated that accused was arrested by the police and in his presence the accused had admitted that he had committed the murder of Rachhpal Singh by hitting him with a stone. The statement of accused Pawan Kumar was recorded in his presence and in the presence of Subhash Chand, vide Memo Ext.PW.2/E. 18. The aforesaid increment statement is hit by Section 25 of the Indian Evidence Act. Therefore, these statements cannot be taken into consideration at all to link the accused with the alleged offence. Further the place to which the accused is stated to have been pointed out pursuant to statement Ext.PW.2/A was already known to the police prior to his pointing out and is thus hit by Section 162 of the Code of Criminal Procedure. Thus, this evidence is of no avail to the prosecution in any manner. Insofar as the medical evidence is concerned, it is not disputed that the accused had not died because of the serious injuries. 19. Taking into consideration the aforesaid critical discussion of the evidence in the light of the well settled principle of law, we are of the considered opinion that in the instant case, the prosecution has failed to link the accused with the alleged offence by legal evidence. The evidence of last seen is also very dicey and they have only given the probable time even not with certainty of having seen the deceased and the accused together. There was no enmity inter se the deceased and accused and nothing has been brought on record. Rather it appears that both of them were fast friends and had taken liquor together on the alleged day of incident and about 5 hours the deceased was found dead. There was no enmity inter se the deceased and accused and nothing has been brought on record. Rather it appears that both of them were fast friends and had taken liquor together on the alleged day of incident and about 5 hours the deceased was found dead. The autopsy of the dead body was conducted on 15.4.2003. The probable time between the death and injury was 1-2 days and time of death and postmortem was 10-12 hours. The time gap between the commission of alleged offence and last seen with the deceased, is not so small that there would have been any occasion for intervening by any other agency. 20. Therefore, in our considered opinion, the findings of acquittal, as recorded by the trial Court are borne out from the record. The appeal sans merit and is accordingly dismissed. 21. The bail bonds entered upon by the accused during the proceedings of the case are hereby discharged.