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2015 DIGILAW 168 (HP)

Anil Kumar v. State of H. P.

2015-03-12

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the impugned judgment rendered on 30.10.2008, by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions trial No. 15/7 of 2006/05, whereby, the learned trial Court convicted and sentenced the accused/appellant to suffer life imprisonment and to pay a fine in a sum of Rs.10,000/- and in default of payment of fine to further undergo imprisonment for a period of three months for commission of offence under Section 302 of Indian Penal code and to suffer imprisonment for seven years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for two months, for the commission of offence under Section 392 read with Section 397 IPC. 2. Brief facts of the case are that on 16.5.2005 at 7.05 a.m. a telephonic information was received from PW-1 Charanjeet Singh, driver of truck No. HR-37A/2572 at Police Station Sadar, Bilaspur that the body of the driver of truck No. HR-37B-4516 is lying dead on the seat of the truck, whereas conductor thereof has fled away. On receiving of information SI Balbir Singh, PW-19 accompanied by PW- 18 ASI Mohinder Singh, HHC Nand Lal, C Jagal Pal and Constable Narinder Kumar arrived at the spot alongwith a photographer Rajesh Kumar. On the spot, they found truck No. HR 37B-4516 parked ahead of which another truck No. HR-37A-2572 was parked. PW-1 the driver and cleaner of the truck bearing No. HR-37B-2572 met the police near truck No. HR37B-4516 and found driver whereof, namely, Onkar Singh, lying dead on the spot and blood had oozed out from his nose and mouth and there was injury on his head and two teeth were lying on the seat near his dead body. PW-1 disclosed the police that the cleaner of truck No. HR-37B-4516 has fled away but he can identify him. At this PW- 19 sent rukka comprised in Ex. PW-12/A through Constable Jagat Pal. FIR Ex. PW-12/B was registered at Police Station, Sadar, Bilaspur. PW-19 prepared site plan Ex. PW-19/A and the broken teeth Ex. P-7 & P-8 were seized vide seizure memo Ex. PW-1/A. He also took blood on a cotton piece Ex. P-4 lying near the dead body of the deceased and kept it in a small bottle Ex. P-5 and seized the same vide seizure memo Ex. PW-19 prepared site plan Ex. PW-19/A and the broken teeth Ex. P-7 & P-8 were seized vide seizure memo Ex. PW-1/A. He also took blood on a cotton piece Ex. P-4 lying near the dead body of the deceased and kept it in a small bottle Ex. P-5 and seized the same vide seizure memo Ex. PW-5/A in presence of the witnesses. The investigating Officer also filled in form 25-35 A and B comprised in Exs. PW-14/E and PW-14/F and moved an application comprised in Ex. PW-14/D for post mortem examination of the deceased.PW-14 Dr. N.K Sankhyan alongwith Dr. D.R Sehgal, D.H Bilaspur conducted the post mortem examination on 16.5.2005 and Post mortem report is Ex. PW-14/A and final opinion is Ex. PW-14/C. On the request of Police Ex. PW-14/G, he gave opinion Ex. PW-14/H regarding the injuries being sustained by the weapon screw driver. The investigating Officer also seized truck No. HR 37B- 4516 and other articles namely shoes Ex. P-9, another shoes pair Ex. P- 10, seat cover Ex. P-11, blanket Ex. P-12 and documents of truck aforesaid vide seizure memo comprised in Ex. PW-1/B. During the investigation, accused Anil Kumar had made a disclosure statement comprised in Ex. PW-4/A, on the basis of which he got recovered the weapon of offence i.e screw driver Ex. P-3 from the bushes on NH-21 which was seized vide seizure memo Ex. PW-4/B. The investigating Officer also prepared sketch of the screw driver being Ex. PW-4/C and site plan of such recovery is Ex. PW-19/B. The dead body of the deceased was handed over to his family members vide memo Ex. PW- 19/C. PW-19 had moved an application comprised in Ex. PW-19/D whereafter spot tatima Ex. PW-13/A and Jamabandi Ex. PW-13/B was got prepared by PW-13 Sukardeen, Patwari. PW-18 ASI Mohinder Singh had been deputed to search the accused and accused Anil Kumar became visible to him on 17.5.2005 at 4.00 p.m. at Pathankot Railway Crossing and was apprehended and brought to the police Station, Shahpur, District kangra. On the search of the accused, the IO has recovered a sum of Rs.29500/- which was seized vide memo Ex. PW- 3/A. Banian Ex. P-1 after circling the blood spot with pen and T-Shirt Ex. P-2 of accused Anil Kumar were seized under memo Ex. On the search of the accused, the IO has recovered a sum of Rs.29500/- which was seized vide memo Ex. PW- 3/A. Banian Ex. P-1 after circling the blood spot with pen and T-Shirt Ex. P-2 of accused Anil Kumar were seized under memo Ex. PW-3/B. The body organs of the deceased were also chemically examined and report of FSL Junga is comprised in Ex. PW-14/B and similarly two shirts, banian, pant and chadder, seized blood lying nearby the dead body of the deceased were got chemically examined and report of FSL Junga is comprised in Ex. PW-15/A and human blood of B Group was found thereon. Constable Rajesh Kumar clicked the photographs of the deceased comprised in Ex. PW-1/C to PW-1/E and Ex. PW-7/F and Ex. PW-7/G, the negatives thereof are comprised in Ex. PW-1/H to Ex. PW- 1/L. The statements of the witnesses were recorded. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The accused was charged for his having committed offences punishable under Sections 302 and 392 read with Section 397 of Indian Penal Code, by the learned trial Court to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 20 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. He chose not to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the appellant/accused. 6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. 7. The learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction, recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 8. This Court has with studied care and incision, evaluated the entire evidence on record. 9. The murder of deceased Onkar Singh, driver of the truck No. HR37-B-4516 occurred at Charol. The Post Mortem Report comprised in Ex. 8. This Court has with studied care and incision, evaluated the entire evidence on record. 9. The murder of deceased Onkar Singh, driver of the truck No. HR37-B-4516 occurred at Charol. The Post Mortem Report comprised in Ex. PW-14/A underlines the hereinafter extracted observations:- “In our opinion the said deceased Onkar Singh died due to asphyxia as a result of chocking due to ante-mortem head injury and other Ante-mortem injuries mentioned in this post-mortem report. However, final opinion was given after report of chemical examiner. Probable time that elapsed between injury and death instantaneous to few minutes and probable time that elapsed between death and post-mortem was 12 hours to 24 hours.” 10. PW-14, Dr. N.K Sankhyan, Senior Medical Officer, who proved Post Mortem Report comprised in Ex. PW-14/A, in his deposition has underscored the factum of demise of the deceased having occurred owing to Asphyxia as a result of chocking arising from ante-mortem head injury and other ante-mortem injuries referred in the Post Mortem Report. He in his deposition has ascribed Ante-mortem injuries No. 1, 2, 4 and 5 observed by him to be occurring/existing on the body of the deceased, to be attributable to screw driver Ex. P-3 recovered under memo Ex.PW-4/B. The occurrence of injury No. 3 on the body of the deceased has been attributed to fist blows or leg blows or blunt weapon. The injuries aforesaid had been concluded by PW-14 to be sufficient in the ordinary course of nature to cause death. The murder of deceased as enunciated and spelt out in the deposition of the prosecution witnesses occurred when he was in a state of slumber, hence, given his slumber he was attacked by the assailant leaving him with no opportunity to repulse the attack. The instant case is not a case where eye witnesses had ocularily seen the occurrence so as to render a vivid account thereon, rather it is a case grooved in circumstantial evidence. Hence, it was incumbent upon the prosecution to prove each of the links in the chain of circumstances. The summum bonum link in the entire chain of circumstances is the manner in which the accused came to be concluded, by the Investigating Officer, to be the assailant. Hence, it was incumbent upon the prosecution to prove each of the links in the chain of circumstances. The summum bonum link in the entire chain of circumstances is the manner in which the accused came to be concluded, by the Investigating Officer, to be the assailant. The shroud of enigma qua the substantiation by the prosecution of the accused to be the person who committed the offence deepens and engulfs in the face of PW-1 Charanjeet Singh, the informant when proceeding to intimate or convey telephonic information to the police omitted to divulge the name of the accused therein. A prompt and immediate disclosure of the name of the accused purportedly engaged as a cleaner by the deceased and his having subsequent to the occurrence fled from the site of occurrence hence inviting suspicion ought to have at the time contemporaneous to the transmission of telephonic information to the police by PW-1 found occurrence therein. Moreso, the depiction of the name and identity of the accused was imperatively enjoined to be conveyed by PW-1 to the police. Given the fact as emanating on a reading of his cross-examination of his being acquainted with both the deceased Onkar Singh and the accused Anil Kumar for 1½ months besides accentuatedly, the factum of an occurrence in his cross-examination of his also being aware of name of accused Anil Kumar boosts an inference that when even he was aware of the name of the accused Anil Kumar, his having omitted to divulge/disclose his name to the police in the telephonic transmission of the occurrence by him to the former, leads to a concomitant inference of his having subsequently during the course of investigation in collusion or in connivance of the Investigating Officer, conjured the name of accused Anil Kumar. As a natural corollary, his deposition in Court wherein he has revealed the identity of Anil Kumar, hence is ingrained with a vice, inasmuch, as it constitutes a dire and blatant improvement upon his previous statement recorded in writing. Even though, PW-2 Rajesh Kumar and PW-4 Rajinder Singh & PW-5 Rup Lal in their recorded depositions have identified the accused to be the person seen by them at the Dhaba in the company of the deceased. Even though, PW-2 Rajesh Kumar and PW-4 Rajinder Singh & PW-5 Rup Lal in their recorded depositions have identified the accused to be the person seen by them at the Dhaba in the company of the deceased. Nonetheless, when given the factum occurring in their respective depositions of theirs having seen accused Anil Kumar earlier and theirs also having on proceeding to the truck in which the deceased was engaged as a driver by its owner having noticed him to be dead, yet theirs having omitted to divulge or disclose promptly to the police the factum of the accused noticed by each of them earlier in the company of the deceased to be not subsequent to the incident available at the site of occurrence renders open an inference that, hence, they in alignment with the deposition of PW-1 have conjured the presence of accused at the site of occurrence. Even otherwise, the PWs aforesaid were previously unaware of the identity of the accused, considerable time elapsed since the occurrence and their respective testimonies having come to be recorded in Court, in which they unraveled the factum of the accused being the person who was seen by them at the Dhaba at Charol in the company of the deceased. Now even when they had gained an immediate acquaintance at the site of occurrence with the identifiable features of the accused, obviously then an omission on the part of the investigating Officer to in quick succession and in immediate spontaneity to the occurrence carry out a Test Identification Parade during course whereof PWs 2,4 and 5 identified the accused, renders the identification in Court of the accused by the aforesaid to be tainted. 11. It is enigmatic that even when PW-1 omitted to disclose the name and identity of the accused to the police, the factum of his presence at the site of occurrence invites an inference of his presence at the site of occurrence having come to be concocted besides the manner in which the police proceeded to Shahpur, the native village of the accused also gets ingrained in a shroud of enigma. The clue to the native village of the accused appears to have been afforded to the police by PW-1 who deposes that he had known both the deceased and the accused for 1 ½ months, hence it is to be presumed that he was also aware of the identity of the accused Anil Kumar. Nonetheless even when PW-18 proceeded to Shahpur to nab the accused, then as apparent on a reading of his deposition he had met one Balwant and his wife Savitri, both of whom apprised PW-18 qua the fact of the accused having visited them on 16th and apprised them that the police was in search of him whereafater he fled away. However, the aforesaid fact as disclosed by Balwant and his wife to PW-18 partakes the character of an extra judicial confession by the accused to both of them, obviously then, it constituted a probative piece of evidence which necessitated proof by both Balwant and Savitri being led into the witness box. However, both of them remained to be unexamined by the Investigating Officer, seqeuelly then, both of them have not been led into the witness box by the prosecution. Omission on the part of prosecution to associate both Balwant and Savitri in the investigation besides omission on the part of the prosecution to resultantly lead them into the witness box underscores the factum that even when they would have lent succor to the prosecution case they have been intentionally omitted to be joined as witnesses as PW-18 appears to have concocted the revelation by both to him of the characteristic and identifiable features of the accused. With his testimony hence being ridden with falsity, the obvious inference is that PW-18 was led to the accused by a person other than Balwant and Savitri. Further more when he deposes in his deposition existing in his examination-in-chief about both aforesaid having divulged to him the key characteristics and identifiable features of the accused undermines the efficacy of the testimony of PW-1,2 and 4 qua the factum of the accused having been last seen by them in the company of the deceased at a Dhaba at Charol. The above inference is more formidably ensuable also for the reason that in case the accused was present in the company of the deceased at a Dhaba at Charol then PW-1 would have conveyed to PW-18 his key characteristics or identifiable features which he has omitted to disclose to him. Hence, PW-18 was carrying out a blind search for the accused guided by a discreet and hidden person. Moreover, the aforesaid inference also tears apart the deposition of PW- 1 of his being aware of the name and identity of the accused. 12. PW-16 Ramesh Kumar, the owner of the truck has in his testimony disclosed the factum of his never having engaged the accused as a cleaner/conductor in his truck. He has deposed that the accused was engaged as a cleaner/conductor in his truck by the deceased. However, it is unexpected of a owner to give latitude and leeway to his driver to engage any worker or any employee in a truck owned by him. Therefore, it also appears that the accused was never available alongwith the deceased in the truck. Even though, PW-2 the owner of the truck deposes that the accused had taken a few rounds in the truck alongwith the deceased, hence appears to be aware of the identifiable or key characteristics/features of the accused. Nonetheless, when PW-18 in his deposition had omitted to disclose therein the factum of his being led to Shahpur to trace/nab the accused on his acquiring knowledge of the key identifiable features of the accused from PW-2, the owner of the truck renders, hence the testimony of PW-18 qua the fact of the accused to be working in his truck as a driver/cleaner though engaged by the deceased to wane. 13. The prosecution pressed into service the deposition of PW-17, who deposes that on 15.5.2005 he had seen the accused in the company of the deceased, on strength whereof, the prosecution conveys that accused Anil Kumar was engaged as conductor/cleaner in the truck, hence he was present alongwith the deceased at the site of occurrence. 13. The prosecution pressed into service the deposition of PW-17, who deposes that on 15.5.2005 he had seen the accused in the company of the deceased, on strength whereof, the prosecution conveys that accused Anil Kumar was engaged as conductor/cleaner in the truck, hence he was present alongwith the deceased at the site of occurrence. The effect of his testimony gets eroded of its veracity on the simple score of he in his examination in chief having divulged the name of accused Anil Kumar to be the person seen by him, in the company of the deceased, yet he was in his cross-examination despite deposing that 3 cleaners had come to him in two months and his omitting to recall their names renders his recalling or remembering the name of the accused to be ridden with the vice of conjuration. 14. The recovery of weapon of offence Screw driver Ex. P3 has been proved by PW-4 and PW-5. However, it is evident on a reading of the deposition of the Investigating Officer that it was recovered from a place in immediate proximity to the road, besides, it was hence recovered from an open place accessible to the people. Therefore, its recovery therefrom is attributed to be at the instance of the accused, nonetheless given the place of its recovery being an open accessible place, as such, being a facilitator to its being kept there at the instance of the Investigating Officer renders its recovery at the instance of the accused to be tainted. What further boosts the aforesaid inference is the factum of it having been opined by PW-15 to have gathered dust though traces of blood were found on it. Nonetheless the existence of blood stains on it have not been correlated to the blood grouping of the deceased. The lack of rendition of an affirmative opinion by PW-15, qua the blood stains existing on it being attributable to the blood grouping of the deceased renders it also to be not the weapon of offence. Even though, assuming that given the place of its recovery dust may have gathered on the blood stains rendering it difficult for the forensic expert to record/firm conclusions and findings on the blood traces/blood stains on it being co-relatable to the blood grouping of the deceased. Even though, assuming that given the place of its recovery dust may have gathered on the blood stains rendering it difficult for the forensic expert to record/firm conclusions and findings on the blood traces/blood stains on it being co-relatable to the blood grouping of the deceased. However, a converse inference is also available especially given the place of its recovery from an open and accessible place in close proximity to highway qua the existence of blood stains on it, even though covered by dust to be attributable to the act of the Investigating Officer to smear it or stain it with blood and cover it with dust and project it to be recovered at the instance of the accused. Moreover, the recovery of money from the person of the accused cannot also be concluded to be a sufficient and potent link in the chain of circumstances especially in the face of the fact of the Investigating Officer having in his cross-examination deposed that a sum of Rs.7,055/- was recovered from the pocket of the deceased. In case even the recovery of the amount of Rs.29,500/- from the accused under memo comprised in Ex. PW-3/A may convey the factum of his rearing a motive to loot the sum recovered from the person of the deceased, as such in his proceeding to accomplish his motive he murdered the deceased. Nonetheless in the face of the Investigating Officer having deposed the fact of his recovering a sum of Rs.7,055/- from the pocket of the deceased gives momentum to the inference that the accused in case was nursing or rearing a motive to loot money from him, hence to accomplish or satiate his motive murdered the deceased, he would have not omitted to also loot the sum aforesaid, found on the person of the deceased. Therefore, when proof of motive in a case of circumstantial evidence is imperatively enjoined to be furnished by the prosecution the seeping of doubt for the reasons aforesaid qua the accused rearing or nursing a motive to loot the deceased facilitates a concomitant deduction that :- (a) The recovery of Rs. 29,500 is tainted or is construed to be planted. (b) The efficacy of the motive attributed to the accused by the prosecution gets eroded. 15. 29,500 is tainted or is construed to be planted. (b) The efficacy of the motive attributed to the accused by the prosecution gets eroded. 15. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from an infirmity as well as perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court merit interference. 16. In view of above discussion, the appeal is allowed and the impugned judgment of 30.10.2008, rendered by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, is set aside. The appellant/accused is acquitted of the offence charged. The fine amount, if any, 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. 17. The registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.