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Himachal Pradesh High Court · body

2014 DIGILAW 1268 (HP)

Rajesh Kumar v. State of H. P.

2014-09-15

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against the judgment dated 24..9.2012 rendered by the learned Addl. Sessions Judge, Fast Track Court, Shimla, in Sessions Trial No. 1-R/7 of 2011, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offences under Sections 302, 201 and 392 IPC, was convicted and sentenced for the offence punishable under Section 302 IPC to undergo imprisonment for life and to pay fine of Rs. 5,000/-. He was also sentenced to undergo rigorous imprisonment for a period of five years for the commission of offence under Section 392 IPC and also sentenced to undergo rigorous imprisonment for a period of one year for commission of offence under Section 201 IPC. All the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that on 18.8.2011 some unidentified person informed the police that the dead body was floating in Pabbar river near Mandli Bridge. The police reached the spot. The photographs of the dead body inside the river were clicked and it was taken out from the river. The dead body was sent to C.H.C. Sandhasu, for post mortem. The viscera and sample of blood were also preserved. The wife of the deceased, Sunita Devi got her statement recorded with the police that on 17.8.2011 her husband went to Chirgaon for gambling. Her husband disclosed to her son Prince that he was taking Rs. 45,000/- alongwith him. At about 1:00 PM her son received call from her husband whereby the deceased instructed him to look after the orchard properly. At about 4:00 PM, her husband again rang up Prince and told him that he is playing cards in the rented place of Sethi at Sandshu. On 18.8.2011 at about 6:30 AM, her husband again instructed her son to protect the orchard from the menace of monkeys and also gave instructions that he should tie a dog in the orchard. On 19.8.2011, the local residents and her other relatives asked her to accompany to hospital. She saw the dead body of her husband. The dead body was having injury on the back side of the head. In order to destroy the evidence, somebody had thrown the body in the Pabbar river. On the basis of statement of PW-1 Sunita Devi FIR Ext PW-21/A was also registered. The police investigated the matter. She saw the dead body of her husband. The dead body was having injury on the back side of the head. In order to destroy the evidence, somebody had thrown the body in the Pabbar river. On the basis of statement of PW-1 Sunita Devi FIR Ext PW-21/A was also registered. The police investigated the matter. Site plan was prepared. The police took into possession the disposable cups, blood stained soil and leaves of the apple plants. The investigation was competed and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 21 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. According to him, he was falsely implicated in the case and claimed to be innocent. He also deposed that the police took all money which he brought from Delhi after selling the apples. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. N.S. Chandel, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, learned Addl. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Fast Track Court, Shimla, H.P. dated 24.9.2012. 5. We have heard learned counsel for the parties and gone through the judgment and records of the case carefully. 6. The statement of Sunita Devi, PW-1 was recorded under Section 154 Cr.P.C. vide memo Ext. PW-1/A. According to the averments contained in the ‘rukka’, her husband used to gamble. On 17.8.2011, her husband left the house at 9:30 AM telling them that he was going to Chirgaon. Her son Prince Kumar, PW-2 told her that her husband had taken Rs. 30,000/- from the house and Rs. 15,000/- were already in his pocket. On the same day at about 1:00 PM, her husband telephoned Prince Kumar that he was at Sandashu. He asked to take care of the orchard and protect it from the parrots. Her husband again gave a telephonic call from Sandashu that he is in the quarter of Sethi and they were playing cards. On 18.8.2011, in the morning at 6:30 AM, her husband told her son PW-2, Prince that he should take care of the orchard from the monkey menace. Her husband again gave a telephonic call from Sandashu that he is in the quarter of Sethi and they were playing cards. On 18.8.2011, in the morning at 6:30 AM, her husband told her son PW-2, Prince that he should take care of the orchard from the monkey menace. On 19.8.2011, she was told to visit Chirgaon Sandashu hospital. She went to the hospital. She came to know that her husband has died. The dead body was kept in the hospital. She noticed injury on the back side of her husband’s head and blood was oozing out. According to her, somebody has killed her husband by hitting him on the back of his head and the body was disposed of in Pabbar river to destroy the evidence. 7. Sunita Devi has appeared as PW-1. According to her, on 17.8.2011 at about 9:00 AM, her husband told her that he was going to Chirgaon. He disclosed to her son Prince that he is having Rs. 15,000/- and is also taking Rs. 30,000/- from the house. At about 6:00 PM, her husband informed prince that he was at Sandashu in the house of Sethi, Forest Guard. He also told to her son that he will come in the morning as he was betting money on cards in the house of Sethi. He gave instructions to her son that he should convey his mother to prepare local eatables for him. He also instructed Prince on 18.8.2011 at 7:00 AM on telephone to take the dog to the orchard. Her husband did not return on 18.8.2011. On 19.8.2011, the villagers asked her to accompany them to Sandhasu hospital alongwith her son. She alongwith her son reached at hospital and found her husband dead. He was having wound on his head. The police recorded the statement under Section 154 Cr.P.C. vide memo Ext. PW-1/A. In her cross-examination, she testified that on 18.8.2011, they received telephone call from the residence of Sethi, Forest Guard, Sandhasu. Her husband and son, both were having mobile phones. 8. PW-2, Prince Kumar deposed that on 17.8.2011, at about 9:00 AM, his father told him that he was going to Chirgaon. His father used to gamble a lot. At about 1:00 PM, his father asked to look after the orchard properly and to protect it from the parrots. He told him that he was at Sandhasu. 8. PW-2, Prince Kumar deposed that on 17.8.2011, at about 9:00 AM, his father told him that he was going to Chirgaon. His father used to gamble a lot. At about 1:00 PM, his father asked to look after the orchard properly and to protect it from the parrots. He told him that he was at Sandhasu. At about 4:00 PM he received another call from his father and his father disclosed to him that he was in the house of Forest Guard, Sethi. He also gave instructions that he should convey to his mother that she should prepare a local dish for him. He also instructed him on 18.8.2011 at 6:30 AM on telephone, to take the dog to the orchard. On 18.8.2011, his father did not return. On 19.8.2011, the villagers asked them to accompany them to Sandhasu hospital. He went to the hospital alongwith his mother. His father was dead having injury on the head. It appeared from the wound that some heavy object was struck against his head. In his cross-examination, he has categorically admitted that all the telephonic calls were received by him from the house of Sethi situated at Sandhasu. He did not know where his father had gone on 18.8.2011. He admitted that his father had altercation with Manoj and Mehar Chand of their village for betted amounts. He denied that his father was intoxicated when his body was recovered. 9. PW-3, Shashi Kant deposed that on 17.8.2011, he handed over the keys of his official accommodation to his friend Virender Sethi and came to Rohru. He came back from Rohru in the night. He saw some persons including Virender Sethi gambling in his official accommodation. He asked them not to play cards in his room but they replied that they were playing cards just for time pass. He took the meals and went for sleep. Those persons kept on playing the cards. When he woke up in the morning at about 6:30 AM, he found no one in his quarter. In the evening, he came to know that Khem Singh who was playing cards in his room was found dead on the banks of river Pabbar. He inquired from the villagers about the dead body. In his cross-examination, he admitted that he used to visit the government accommodation of Virender Sethi situated at Sandhasu. 10. In the evening, he came to know that Khem Singh who was playing cards in his room was found dead on the banks of river Pabbar. He inquired from the villagers about the dead body. In his cross-examination, he admitted that he used to visit the government accommodation of Virender Sethi situated at Sandhasu. 10. PW-4, Jai Pal deposed that he was staying with Virender Sethi in his room for the last 5-6 months. On 17.8.2011, Virender Sethi called him at Jangla in the quarter of Shashi Kant. There were 6-7 persons in the room of Shashi Kant. They were talking to each other. He was declared hostile and cross-examined by the learned Public Prosecutor. He did not remember whether the accused was amongst those persons who were playing cards in the house of Shashi Kant. He remained in the house of Shashi Kant for some time and thereafter he kept on roaming on the road for 3-4 hours. He admitted that he went to his house on a motorcycle at 11:00 PM. He admitted that Virender Sethi called him on 18.8.2011 at 6:00 AM and asked him to come on motorcycle to take him back to the room. When he was coming to Jangla, then he saw Khem Singh coming alongwith another person about 1 km ahead of Jangla and they were going towards Badiara. He denied the suggestion that the person who was alongwith Khem Singh was also present in the room of Shashi Kant on 17.8.2011. Volunteered that, there were about 6-7 persons in the house of Shashi Kant, but he did not recognize them. Khem Singh requested him to give him lift to village Badiara but he told him that he was going to pick up Virender Sethi from Jangla. He did not disclose the name of second person to the police. 11. PW-5, Virender Sethi deposed that he had hired accommodation at Sandhasu and earlier Jai Pal was sharing accommodation with him. Now-a-days, he was residing alone. They used to gamble. They were 9-10 friends and they used to remain in contact with each other on telephone. On 17.8.2011, they contacted each other at about 5:00 PM and planned to assemble at the accommodation of Shashi Kant. They all reached by 8:00 PM in the quarter of Shashi Kant. Now-a-days, he was residing alone. They used to gamble. They were 9-10 friends and they used to remain in contact with each other on telephone. On 17.8.2011, they contacted each other at about 5:00 PM and planned to assemble at the accommodation of Shashi Kant. They all reached by 8:00 PM in the quarter of Shashi Kant. He alongwith Panna Lal, Suresh, Rajesh alias Guddu alias Lagnu, Naresh, Baldev, Satish, Khem Singh and Hari Krishan assembled in the house of Shashi Kant. Jai Pal dropped him at Jangla on motorcycle and returned back to Sandhasu. They continued playing cards at 8:00 PM till 3:00 AM. Jai Pal went to Sandhasu after 10:00 PM after taking meals. Khem Singh won most of the games and collected huge amount of money in that gambling. The accused lost almost all his money in gambling. He also lost Rs. 10,000/-. Khem Singh and Lagnu left that place in between 5:30 to 6:00 AM. At about 6:00 AM, he rang up his room mate to pick him up from Jangla.He came on his motorcycle towards Sandhasu side. Jai Pal told him that Khem Singh and Rajesh met him 1 Km away from Jangla and they were going towards Badiara. Panna Lal and Hari Krishan disclosed to him on telephone that Secretary Dev Raj told them that Khem Singh met them at about 6:00 AM near Village Badiara. He was associated by the police on 29.8.2011 alongwith Panna Lal and Hari Krishan. Manita, the sister of accused produced his washed clothes. The accused admitted that he wore those clothes on the date of incident and he also identified those clothes worn by the accused on the date of incident. These were taken into possession by the police vide recovery memo Ext. PW-5/A. Ext. P2 is the pant and Ext. P-3 is the shirt. Thereafter, Panna Lal handed over 30 currency notes of Rs. 500/- each to the police which he won from accused Lagnu at about 1:00 PM on 18.8.2011 in gambling bet. Panna Lal also told him that when he inquired from accused that from where he brought the money, when he lost all his money in gambling at Jangla. The accused disclosed to Panna Lal that the money was taken from Aharati. In his cross-examination, he admitted that Jai Pal did not tell him about the name of second person walking alongwith Khem Singh. The accused disclosed to Panna Lal that the money was taken from Aharati. In his cross-examination, he admitted that Jai Pal did not tell him about the name of second person walking alongwith Khem Singh. His statement qua this effect in examination-in-chief that Jai Pal told him about the name of the accused was not correct to that extent. 12. PW-6, Padam Singh deposed that on 18.8.2011 at about 9:00 AM accused Rajesh alias Lagnu came to his house and handed over Rs. 20,000/- to him in the denomination of Rs. 500/- and 1000/-. The accused also handed over documents related to sale purchase of apple which he brought from Delhi alongwith that money. He also handed over to him Rs. 20,000/-. 13. PW-7, Dev Raj deposed that at about 7:15 AM on 18.8.2011 when he reached near Badiara godown, then two persons met him. One of them was Khem Singh resident of Kharshali. They were going from Badiara to Chirgaon. The second person who was accompanying Khem Singh was not identified by him anywhere after 18.8.2011. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that his statement was recorded by the police on 22.8.2011. 14. PW-8, Panna Lal deposed that he was running a meat shop at Chirgaon bazaar. On 17.8.2011, at about 5:00 PM Sethi Guard called him to Jangla for playing cards. At about 8:00 PM, they all reached in the house of Shashi Kant, Forest Guard. They continued playing cards till 3:00 AM. He alongwith Raju Shop-keeper came back in his own vehicle. He lost Rs. 10,000/- to Rs. 11,000/-. Lagnu also lost all his money in gambling. Lagnu picked Rs.2500/- for meeting out expenses. On 18.8.2011 at about 12.45 Hari Krishan and Guddu reached at his house and again started playing cards. Guddu alias Rajesh lost Rs.15,000/- and thereafter he left his house. In his cross examination, he admitted that they were called to the Police Station for 5-6 days continuously. He admitted that the accused has told them that he was coming from Delhi after selling his apples. 15. PW-9, Gian Devi is the wife of the accused. She deposed that her husband went to Delhi with consignment of apple on 13.8.2011. He retuned back from Delhi on 17.8.2011 at 8.30 PM. 16. He admitted that the accused has told them that he was coming from Delhi after selling his apples. 15. PW-9, Gian Devi is the wife of the accused. She deposed that her husband went to Delhi with consignment of apple on 13.8.2011. He retuned back from Delhi on 17.8.2011 at 8.30 PM. 16. PW-10, Hari Krishan deposed that he alongwith Up Pradhan Raj Kumar of Sundha Gaura came to the Police Station. In their presence, the accused made disclosure statement to the police that he could identify the place where he committed the murder. The disclosure statement was recorded vide memo Ext. PW-10/A. They started from the police station on two vehicles, one official and one private and went to Mandli. The accused in their presence identified the place where he killed Khem Singh by the side of river Pabbar. Memo to this effect Ext. PW-10/B was prepared. The police also picked up three stones from that place having blood stains. The accused also disclosed that he killed him with those stones. Three stones were taken into possession vide recovery memo Ext. PW-10/C. The police also took into possession six other stones having blood stains vide recovery memo Ext. PW-10/D. The soil was also lifted from the bank of the river Pabbar vide recovery memo Ext. PW-10/E. He was declared hostile. In his cross examination by the learned Public Prosecutor, he admitted that his statement was recorded by the police on 22.8.2011. In his cross examination by the learned defence counsel, he admitted that the signatures on all the memos, identification memo and disclosure statement were taken at the Police Station, Chairgaon after preparing all the documents within two hours. He also admitted that the police had called him telephonically to the Police Station. He visited the spot on 18.8.2011 and then he did not notice any stone or hair etc. on the spot. Volunteered that, he only identified the dead body on that day. 17. PW-11, Narayan Singh deposed that he gave Rs.17,000/- to accused Rajesh Kumar. The accused met him on 19.8.2011 at village Jagholi. He asked him to return his money but he showed his inability to return the whole amount. In his cross examination, he admitted that accused used to earn Rs.70,000/- to Rs.80,000/- by selling apple crops. 18. 17. PW-11, Narayan Singh deposed that he gave Rs.17,000/- to accused Rajesh Kumar. The accused met him on 19.8.2011 at village Jagholi. He asked him to return his money but he showed his inability to return the whole amount. In his cross examination, he admitted that accused used to earn Rs.70,000/- to Rs.80,000/- by selling apple crops. 18. PW-12, H.H.C. Sheeshi Ram has deposed that on 14.9.2011, wife of the accused handed over 40 currency notes of Rs.500/- denomination i.e. Rs. 20,000/- to the I.O. The currency notes were taken into possession vide recovery memo Ext. PW-9/A. 19. PW-13, Shamsher Singh has taken the photographs of stones, disposable cups, dry leaves and the soil having blood stains. The police also took into possession the disposable cups having blood stains and dried leaves. All the articles were wrapped in a parcel and taken into possession by the police. 20. PW-14, Surinder Singh is a formal witness. 21. PW-15, Constable Rajesh Kumar deposed that Narayan Singh in his presence handed over 20 currency notes of Rs. 500/- denomination to the police and disclosed that the alleged money was handed over to him by Rajesh alias Guddu on 20.8.2011. He also disclosed to the police that Rajesh borrowed Rs.17,000/- from him. 22. PW-16, Constable Arun Kumar is a formal witness. 23. PW-17, Dr. Mahesh Jaswal has conducted the post mortem. The post mortem report is Ext. PW-17/C. According to him, the deceased died due to intracranial hemorrhage with excessive blood loss leading to hypovolemic shock. The probable time between injury and death was instantaneous to a few minutes. The time between death and post mortem was 18 to 30 hours. In his cross examination he has admitted that he has not gone through the FSL report nor it was shown to him at any time by the police, so he could not say that deceased was drunk at the relevant time. 24. PW-18, H.C. Balbir Singh deposed that he deposited the Punlidas in the Malkhana after making relevant entries. 25. PW-19, A.S.I. Kalil Ahmad deposed that on 18.8.2011 some unknown person informed the police telephonically that a dead body was lying in the river Pabbar near Mandli bridge. He visited the spot and found the dead body near Forest Rest House in river Pabbar. The dead body was taken out from river Pabbar to the bank. 25. PW-19, A.S.I. Kalil Ahmad deposed that on 18.8.2011 some unknown person informed the police telephonically that a dead body was lying in the river Pabbar near Mandli bridge. He visited the spot and found the dead body near Forest Rest House in river Pabbar. The dead body was taken out from river Pabbar to the bank. The photographs of the dead body were again clicked and the dead body was identified by the local inhabitants. The dead body was taken to C.H.C. Sandashu for conducting the post mortem. The post mortem was conduced on 20.8.2011. The viscera was preserved. In his cross-examination, he admitted that it has come in his investigation that the deceased was chronic gambler. Khem Singh went to Sandhasu side for gambling at about 9:30 PM on 17.8.2011. He admitted that the son of the deceased told him that he received telephonic call at about 4:30 PM on 17.8.2011 from his father that he is playing cards in the quarter of Sethi at Sandhasu. He also admitted that the son of the deceased told him that he is still playing cards in the quarter of Sethi and asked him to tie a dog in the orchard at about 6:30 AM on 18.8.2011. 26. PW-20, S.I.Kanshi Ram deposed that the wife of the accused associated the police. She handed over Rs. 20,000/-given to her by her husband. 27. PW-21, Rajinder Singh deposed that he received the statement of Sunita Devi through Constable Rajesh Kumar at about 4:30 PM. FIR Ext. PW-21/A was registered by him. He prepared the site plan. On conducting search of nearby places where the dead body was recovered, he found stones having blood stains and disposable glasses in the apple orchard near the road. In the presence of Hari Krishan and Raj Kumar the accused made the disclosure statement Ext. PW-10/A that he could identify the place where he killed the deceased on 18.8.2011. The accused led the police party and the witnesses to that place where he committed the offence. The identification memo Ext. PW-10/B was prepared. He also prepared the site plan Ext. PW-21/E. The police also noticed blood stains on the stones lying by the side of river Pabbar. The stones were also taken into possession. The accused was arrested on 22.8.2011. The identification memo Ext. PW-10/B was prepared. He also prepared the site plan Ext. PW-21/E. The police also noticed blood stains on the stones lying by the side of river Pabbar. The stones were also taken into possession. The accused was arrested on 22.8.2011. In his cross-examination, he admitted that it has come in the investigation that the accused returned from Delhi with money after selling his apple crop. 28. According to Ext. PW-1/A, PW-2 Prince Kumar received telephonic call at 1:00 PM from his father that he was at Sandhasu on 17.8.2011 and he should take care of the orchard. He again received a telephonic call at 4:00 PM on the same day from his father informing him that he was at Sandhasu in the house of Sethi and they were playing cards. He again received a telephonic call on 18.8.2011 at 6:30 AM from her husband and he told his son to save the orchard from monkey menace. PW-1, Sunita Devi in her cross-examination has also deposed that at about 6:00 PM her husband informed Prince that he was at Sandhasu in the house of Sethi, Forest Guard. He also told her son that he would come in the morning as he was gambling in the house of Sethi. In her cross-examination, she has also reiterated that on 18.8.2011, they received telephone from the residence of Sethi Forest Guard, Sandhasu. PW-2, Prince Kumar has also deposed that on 17.8.2011 at about 1:00 PM, her father asked to look after the orchard and to save them from Parrots. His father told him that he was at Sandhasu. At about 4:00 PM on the same day, he received another call from his father who disclosed to him that he is in the house of Forest Guard, Sethi. He also gave him instructions that he should convey to his mother that she should prepare food for him. He also instructed him on 18.8.2011 at 6:30 AM to take the dog to the orchard. In his cross-examination, he admitted that all the telephonic calls were received by him from the house of Sethi situated at Sandhasu. However, PW-3 Shashi Kant, deposed that he handed over the keys of his official residence to his friend Virender Sethi and came to Rohru. He returned from Rohru and reached in the house at night. He saw some persons gambling in his official accommodation. However, PW-3 Shashi Kant, deposed that he handed over the keys of his official residence to his friend Virender Sethi and came to Rohru. He returned from Rohru and reached in the house at night. He saw some persons gambling in his official accommodation. He took meals and went for sleep but they kept on playing the cards. When he woke up at about 6:30 AM, he found no one in the quarter. In his cross-examination he admitted that he used to visit the government accommodation of Virender Sethi which was situated at Sandhasu. PW-4 Jai Pal deposed in his cross-examination that on 17.8.2011, Virender Sethi called him at Jangla in the quarter of Shashi Kant. There were 6-7 persons in the room of Shashi Kant. It discloses that the house of Shashi Kant was at Jangla. PW-5, Virender Sethi deposed that he had accommodation at Sandhasu and earlier Jai Pal was sharing accommodation with him. Now-a-days, he was residing alone. In the adjoining beat Shashi Kant was posted as Forest Guard. He hired accommodation at Jangla. They used to play cards. They were 9-10 friends and remained in contact with each other on telephone. On 17.8.2011, they contacted each other at about 5:00 PM and planned to assemble at the accommodation of Shashi Kant. 29. What emerges from the statements of the witnesses is that there are two versions. According to the contents of PW-1/A, the statement of PW-1 Sunita Devi and PW-2 Prince Kumar, the deceased was playing cards in the house of Virender Sethi (PW-5) at Sandhasu. However, as per the statements of PW-3 Shashi Kant, PW-4 Jai Pal and PW-5 Virender Sethi, they were playing cards in the house of Shashi Kant at Jangla. Virender Sethi PW-5 had hired accommodation at Sandhasu and Shashi Kant PW-4 at Jangla. It has also come in the statement of PW-19 ASI Kalil Ahmad that the son of deceased told him that he received telephonic call at about 4:30 PM on 17.8.2011 from his father that he was playing cards in the quarter of Sethi at Sandhasu. He admitted that the son of the deceased told him that he is still playing cards in the quarter of Sethi and asked him to tie a dog in the orchard at about 6:30 AM on 18.8.2011. He admitted that the son of the deceased told him that he is still playing cards in the quarter of Sethi and asked him to tie a dog in the orchard at about 6:30 AM on 18.8.2011. PW-21, Rajinder Singh in his cross-examination has deposed that he was not told by the son of the deceased that he was playing cards in the quarter of Virender Sethi at Sandhasu but that statement was made to ASI Khalil Ahmad, by the son of the deceased. 30. The learned Trial Court has taken into consideration the statement made by the accused under Section 313 Cr.P.C. that he was playing cards at Jangla. The statement recorded under Section 313 Cr.P.C. is not a substantive piece of evidence. The purpose of statement under Section 313 Cr.P.C. is to put the entire incriminating circumstances gathered by the prosecution to the accused. Their lordships’ of the Hon’ble Supreme Court in the case of Ashok Kumar vrs. State of Haryana, reported in (2010) 12 SCC 350 , have held that the prosecution case must stand on its own legs. It cannot take weakness of the defence case. Their lordships’ have held that the statement of the accused under Section 313 Cr.P.C. cannot be regarded as substantive evidence but it can be used to corroborate prosecution case. The use of the statement under Section 313 Cr.P.C in evidence is permissible. The Courts’ may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. The conviction of the accused cannot be based merely on the statement made under Section 313 Cr.P.C. as it cannot be regarded as a substantive piece of evidence. Their lordships’ have held as under : “29. Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made under Section 313, Cr.PC. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made under Section 313, Cr.PC. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement under Section 313 of the Cr.PC can be used by the Court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 of the Cr.PC. 30. Let us examine the essential features of this section and the principles of law as enunciated by judgments of this Court, which are the guiding factor for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. 31. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 32. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313 (4) of the Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 of Cr.PC as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. 33. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. 33. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay [ AIR 1953 SC 247 ], the Court held as under : "3. ..........As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown." 32. The statement of the accused under Section 313 Cr.P.C. was required to be read in conjunction with the statements of PW-1 Sunita Devi, PW-2 Prince Kumar, PW-4 Jai Pal, PW-5 Virender Sethi and PW-7 Dev Raj. 33. The learned trial Court has also relied upon the theory of ‘last seen together’ to convict the accused and has relied upon the statements of PW-4 Jai Pal, PW-5 Virender Sethi and PW-8 Panna Lal. PW-4 Jai Pal, deposed that on 17.8.2011, Virender Sethi called him at Jangla in the quarter of Shashi Kant. There were 6-7 persons in the room of the Shashi Kant. They were talking with each other. He was declared hostile. PW-4 Jai Pal, deposed that on 17.8.2011, Virender Sethi called him at Jangla in the quarter of Shashi Kant. There were 6-7 persons in the room of the Shashi Kant. They were talking with each other. He was declared hostile. He did not tell the police that Virender disclosed him that they were gambling. He also denied the suggestion that some persons also came to the house of Shashi Kant and they also started playing the cards. He did not remember whether accused was amongst them or not. He admitted that Khem Singh deceased was there in the house of Shashi Kant. According to him, he was called by Virender Sethi on 18.8.2011 at 6:00 AM. He asked him to come on motorcycle to take him back to the room. When he came back to Jangla, he saw Khem Singh coming alongwith another person about 1 Km ahead of Jangla and they were going towards Badiara. He denied the suggestion that the person who was alongwith Khem Singh was also present in the room of Shashi Kant on 17.8.2011. Volunteered that, there were 6-7 persons in the house of Shashi Kant, but he did not recognize them. He admitted that Khem Singh told him that the person accompanying him is related to him and they were going to the house of the relative of that person. He has not disclosed the name of second person to the police. 34. PW-5, Virender Sethi deposed that they continued playing cards from 8:00 PM till 3:00 AM. Jai Pal went to Sandhasu at about 10:00 PM after taking the meals. He did not play cards with them. Khem Singh won most of the games and collected huge amount of money in that gambling. The accused lost the entire money. He also lost Rs. 10,000/-. Khem Singh and Lagnu left that place in between 5:30 to 6:00 AM. He rang up Jai Pal to pick him up from Jangla at about 6:00 AM. He along with Baldev and Jai Pal went on the same motorcycle towards Sandhasu side. Jai Pal told him that Khem Singh and Rajesh met him 1 Km away from Jangla and they were going towards Badiara. PW-4, Jai Pal has categorically deposed that he has only seen another person with the deceased when he was coming to Jangla. He along with Baldev and Jai Pal went on the same motorcycle towards Sandhasu side. Jai Pal told him that Khem Singh and Rajesh met him 1 Km away from Jangla and they were going towards Badiara. PW-4, Jai Pal has categorically deposed that he has only seen another person with the deceased when he was coming to Jangla. However, he has denied the suggestion that the person alongwith Khem Singh was also present in the room of Shashi Kant on 17.8.2011. PW-4, Jai Pal has also deposed that he has not disclosed the name of second person to the police. PW-5 Virender Sethi, in his cross-examination has admitted that Jai Pal did not tell him about the name of the second person walking alongwith Khem Singh deceased and his statement qua this fact in examination-in-chief that Jai Pal told him about the name of the accused was not correct to that extent. 35. PW-8, Panna Lal has testified that at about 8:00 PM, they all reached in the house of Shashi Kant Forest Guard. They continued playing cards till 3:00 AM. He alongwith Raju, Shopkeeper came back in his own vehicle. He lost Rs. 10,000/- to 11,000/-. Lagnu also lost all his money in gambling. Lagnu picked Rs. 2500/- for meeting out his expenses. On 18.8.2011, at about 12:45 PM, Hari Krishan and Guddu reached at his house and again started playing cards. Guddu alias Rajesh lost Rs. 15,000/- and thereafter he left his house. In his cross-examination, he admitted that the police has summoned them to the Police Station for 3-4 days. It is not believable that the accused after committing murder would visit the house of PW-8, Panna Lal and again gamble. According to the prosecution evidence, the accused has lost the entire money. However, PW-8 Panna Lal deposed, as noticed hereinabove, that Hari Krishan and Guddu again started playing cards and Guddu alias Rajesh lost Rs. 15,000/-. 36. PW-7, Dev Raj has deposed that at about 7:15 AM, when he reached near Badiara godown, then two persons met him. One of them was Khem Singh resident of Kharshali. They were going from Badiara to Chirgaon. The second person who was accompanying Khem Singh was not identified by him anywhere after 18.8.2011. He was declared hostile. He denied the suggestion that he identified the accused at Police Station Chirgaon, when he was alongwith other person. One of them was Khem Singh resident of Kharshali. They were going from Badiara to Chirgaon. The second person who was accompanying Khem Singh was not identified by him anywhere after 18.8.2011. He was declared hostile. He denied the suggestion that he identified the accused at Police Station Chirgaon, when he was alongwith other person. He also denied the suggestion that the accused disclosed his name as Rajesh alias Lagnu. PW-7, Dev Raj has merely stated that he has seen a person with Khem Singh but he has not seen that person after 18.8.2011. Thus, the theory of ‘last seen together’ has not been proved by the prosecution. 37. PW-5, Virender Sethi deposed that the sister of the accused produced his washed clothes from her house and the same were taken into possession by the police vide recovery memo Ext. PW-5/A. Ext. P-2 is the pant and shirt is Ext. P-3. PW-10, Hari Krishan deposed that the accused made disclosure statement Ext. PW-10/A to the effect that he could get the place identified where he has committed the murder. Memo Ext. PW-10/B was prepared identifying the place. The police also picked up three stones from the spot and these were taken into possession vide recovery memo Ext. PW-10/D. In his cross-examination, he admitted that the signatures on all the memos, identification memo and disclosure statement were taken at the Police Station Chirgaon, after preparing all the documents within two hours. The documents were prepared by one Hawaldar. He was called to the Police Station telephonically. When he visited the spot on 18.8.2011, he did not notice any stone or hair on the spot. Volunteered that, he had only identified the dead body on that day. 38. The statement of PW-10, Hari Krishan makes the identification of the spot and recovery of stones doubtful. The defence taken by the accused was that he had gone to Delhi to sell his apple and has come back with the money. PW-8, Panna Lal has admitted in his cross-examination that accused had told him that he was coming from Delhi after selling his apples. PW-9, Gian Devi is the wife of the accused. She has also deposed that her husband had gone to Delhi with the consignment of apple on 13.8.2011 and came back from Delhi on 17.8.2011 at 8:30 PM. PW-11 Narain Singh, in his cross-examination, has admitted that accused Guddu earns Rs. PW-9, Gian Devi is the wife of the accused. She has also deposed that her husband had gone to Delhi with the consignment of apple on 13.8.2011 and came back from Delhi on 17.8.2011 at 8:30 PM. PW-11 Narain Singh, in his cross-examination, has admitted that accused Guddu earns Rs. 70,000/- to 80,000/- by selling apple crop. PW-21, Rajinder Singh has also admitted in his cross-examination that it has come during the course of investigation that accused returned from Delhi with money after selling his apple crop. 39. According to PW-2 Prince Kumar, his father was not intoxicated at the time of his death. However, as per the opinion in the FSL report Ext. PW-20/B, the traces of ethyl alcohol were detected in the contents of parcels P-1 and P-2. 40. Mr. M.A. Khan, Addl. Advocate General, has drawn the attention of the Court to Ext. PW-20/D. According to the conclusions of Ext. PW-20/D, complete DNA profile of deceased Khem Singh has been obtained from Ext. P-12, stone. Complete DNA profile of accused Rajesh Kumar has also been obtained from Ext. P-16b, shirt of the accused. According to PW-5, Virender Sethi, he was associated by the police on 29.8.2011 alongwith Panna Lal and Hari Krishan. Manita, the sister of the accused produced his washed clothes. Thus, it shows that the recovered clothes were washed and there could not be any blood on the shirt of the accused. According to PW-5 Virender Sethi, the accused has admitted that he wore those clothes on the date of incident and he also identified those clothes worn by the accused on the date of the incident. The dead body was recovered on 18.8.2011. The statements of PW-4, Jai Pal and PW-7, Dev Raj were recorded on 22.8.2011. The statement of Gian Devi, PW-9 was recorded on 14.9.2011. Similarly, the statement of PW-10, Hari Krishan was recorded on 22.8.2011. The statement of PW-11, Narain Singh was recorded on 30.8.2011. The statements under Section 161 Cr.P.C. are required to be recorded with promptitude. There is no explanation given by the I.O. as to why the statements of these witnesses were recorded after a considerable lapse of time. There is reasonable doubt whether the accused was at place Sandhasu or at Jangla. The theory of ‘last seen together’ has also not been proved by the prosecution. There is no explanation given by the I.O. as to why the statements of these witnesses were recorded after a considerable lapse of time. There is reasonable doubt whether the accused was at place Sandhasu or at Jangla. The theory of ‘last seen together’ has also not been proved by the prosecution. The disclosure statement is also doubtful, on the basis of which, the spot was identified and stones recovered. The DNA profile cannot be believed in view of the statement of PW-5, Virender Sethi. 41. The prosecution has also failed to prove that the accused has robbed Khem Singh, killed him and threw his body in the Pabbar river to destroy the evidence. According to the accused, he had gone to Delhi to sell his apples and has got the money by sale proceeds of the apples. His defence is also probablized from the statements of the witnesses i.e. PW-8 Panna Lal, PW-9 Gian Devi and PW-21 Rajinder Singh that he had gone to Delhi to sell his apples. The facts and circumstances from which conclusion for guilt is sought to be drawn by the prosecution, has not been established beyond doubt. Thus, the accused cannot be convicted under Section 302 and 392 of the IPC. 42. The essential ingredients to prove offence under Section 201 IPC are that an offence was committed and accused had reasons to believe the commission of such an offence, that with such knowledge or belief he caused any evidence of the commission of that offence to disappear or gave any information relating to that offence which he then knew or believed to be false and he did so with the intention of screening the offender from legal punishment. Since, we have already held that the prosecution has failed to prove the case against the accused under Sections 302 and 392 IPC beyond reasonable doubt, Section 201 IPC is also not attracted. The case is based on circumstantial evidence. It is necessary for the prosecution to prove the entire chain of circumstances in order to prove the guilt. In the instant case, the prosecution has failed to prove the entire chain of circumstances. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt. 43. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 24.9.2012, rendered by the learned Addl. In the instant case, the prosecution has failed to prove the entire chain of circumstances. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt. 43. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 24.9.2012, rendered by the learned Addl. Sessions Judge, Fast Track Court, Shimla, in Sessions trial No. 1-R/7 of 2011, is set aside. The accused is acquitted of the charges framed under Sections 302, 201 and 392 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 44. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.