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Himachal Pradesh High Court · body

2016 DIGILAW 1540 (HP)

State of H. P. v. Manohar Lal

2016-07-29

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of H.P. against the judgment of the learned Additional Sessions Judge (I), Kangra at Dharamshala, Himachal Pradesh, rendered on 17.08.2009 in Sessions Case No.5- G/08, whereby, the latter Court acquitted the accused/respondent for an offence punishable under Section 302 of the IPC. 2. The facts relevant to decide the instant case are that on 9.11.2007, the police had received a telephonic information from Shri Trilok Chand Pradhan, Gram Panchayat, Ghaloti, that a decomposed body of an unknown woman is lying in Kharater in Khanna forest near village Ghaloti. On receipt of this information, the police reached on the spot and the deceased was identified as Rachna Devi alias Ruchi daughter of Monu Ram, resident of Khariana, Tehsil Palampur, District Kangra. Thereafter on 10.11.2007, postmortem on the dead body of deceased was got conducted by the police in Sub Divisional Hospital, Dehra. The police had also recovered from the place where the dead body was recovered, a pair of chappal and strip of proxyvan capsules, a female koti of black colour and a torn female shirt, which were taken into possession by the police. The police also found one electric wire wrapped around the neck of the deceased. During investigation of the case, it was revealed that the deceased Rachana Devi was engaged with one Jeewan Kumar son of Ishwar Singh in the month of January, 2007 and the date of their marriage was fixed as 30.11.2007 and in the meanwhile it was also emerged that accused Bholu alias Manohar Lal was also interested to marry Rachna Devi and after the engagement of the deceased, Bholu had also telephonically informed Rachna Devi that his mother was now ready for their marriage. Thereafter on 31.10.2007 deceased Rachna Devi visited the house of her aunt Rukmani Devi resident of Purwa and on 1.11.2007 when Rukmani Devi, after attending her duty as chowkidar in the school reached at her house, she found Rachna Devi missing from her house and she accordingly informed Moni Ram, father of deceased about the missing of Rachna Devi. They all tried their best to locate Rachna Devi and ultimately on 4.11.2007 Moni Ram lodged report at police post Bhawarna regarding the missing of Rachna Devi. On 15.11.2007, a report was received from RPMGC Tanda to the effect that the suicide by hanging cannot be ruled out. They all tried their best to locate Rachna Devi and ultimately on 4.11.2007 Moni Ram lodged report at police post Bhawarna regarding the missing of Rachna Devi. On 15.11.2007, a report was received from RPMGC Tanda to the effect that the suicide by hanging cannot be ruled out. On this report, the police opined that culprit might have abetted suicide by deceased and a case under Section 306, 201 of the IPC was registered. On 18.11.2007 during investigation Manohar Lal and one Vikramjeet alias Monu were arrested. During interrogation Manohar Lal confessed that he had committed murder of Rachna Devi on 31.10.2007 and had thrown dead body of Rachna Devi in the Kharetar jungle at Khanna. The police carried out investigations in the matter, during the course whereof, recorded the statements of the witnesses, prepared the site plans, recovered the weapon of offence etc. 3. On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. The accused was charged by the learned trial Court for his committing offence punishable under Section 302 of the IPC. In proof of the prosecution case, the prosecution examined 29 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed innocence and pleaded false implication. However, he did not lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The prosecution case rests upon circumstantial evidence. For the prosecution to succeed in a case hinged in its entirety upon circumstantial evidence, it stood enjoined to adduce conclusive evidence in display of each of the links in the pack of circumstances standing unflinchingly proved. Contrarily, with any of the links in the chain of circumstances getting dismembered, the entire case of the prosecution would suffer the ill-fate of its collapsing. 10. The initial link in the chain of circumstances ascribed by the prosecution to the accused stands embedded in the factum of deceased Rachana holding intimacy with the accused also of the accused proposing matrimony with the deceased, stands echoed by PW-2 Smt. Veen Devi, the mother of the deceased, proposal whereof standing tacitly spurned arising from PW-2 portraying her inability to for about two years marry the accused with the deceased, yet, as emanating from the deposition of PW-1, of the father of the deceased settling the matrimony of his deceased daughter with a person other than the accused, stands galvanized by the prosecution to stir a motive in the accused to murder the deceased. The deposition of PW-2 holding an articulation therein of the accused proposing matrimony with the deceased, proposal whereof stood tacitly spurned by hers portraying her inability to the accused to marry the deceased for about two years with him besides, subsequent to the settlement of matrimony of deceased by PW-1 with a person other than the accused purportedly inviting the wrath of the accused also its sprouting the requisite motive in him to murder her, stands withered, by a disclosure made by PW-2 in her testimony of hers sighting the photograph of the accused for the first time on 23.11.2007 whereas the alleged murder of the deceased by the accused occurred prior thereto. Amplifyingly when PW-2 had not sighted the accused prior to 23.11.2007, obviously she invents the factum of the accused proposing matrimony with the deceased. Consequently, with the purported motive nursed by the accused standing jettisoned, the ensuing effect thereto is of its ascription to the accused standing negated besides a pivotal link erected by the prosecution against the accused collapsing. 11. Furthermore, the prosecution case dehors the factum of its assay to prove the factum of the accused proposing matrimony with the deceased proving abortive, also hence of the concomitant motive reared by him to murder the deceased standing jettisoned, nonetheless, the prosecution has depended upon the testimony of PW-3, Miss Archana, who has therein made communications of the accused and the deceased holding intimacy with each other prior to the ill-fated incident, communication whereof stands rested upon both conversing over their respective mobile/cell phones, corroboration whereof standing lent by Ex.PW29/B, Ex.PW29/C, Ex.PW29/D and Ex.PW29/E constituting the relevant record maintained by the cellular company concerned, with portrayals occurring therein of the exhibits aforesaid holding cell phone numbers of the accused and the deceased, to, yet canvass of the accused prior to the ill-fated occurrence holding intimacy with the deceased whereupon it assays of with PW-1 settling the matrimony of his deceased daughter with a person other than the accused whereupon the hopes of the accused to marry the deceased stood torpedoed, hence his rearing a motive to murder her. The testimony of PW-3 would hold succor only when the manifestations occurring in Ex.PW29/B, C, D and E stand concluded by this Court to be proven in accordance with the mandate of the Hon'ble Apex Court enshrined in State of NCT of Delhi Vs. The testimony of PW-3 would hold succor only when the manifestations occurring in Ex.PW29/B, C, D and E stand concluded by this Court to be proven in accordance with the mandate of the Hon'ble Apex Court enshrined in State of NCT of Delhi Vs. Navjot Sandhu, AIR 2005 SC 382, wherein it stands expostulated of the printouts of the computerized record taken from a computer server by mechanical process on theirs holding the apposite certificate of the responsible officer of the cellular company, hence, theirs holding evidentiary value for conclusively proving the factum of the unfoldments occurring in the apposite printouts. However, a perusal of the afore referred exhibits tendered into evidence by PW-29 unravels of theirs not holding the apposite certification of the responsible officer of the cellular company, though the apposite existence thereon stood enjoined by the mandate of the Hon'ble Apex Court enshrined in the judgment (supra). In consequence, with the aforesaid exhibits not holding the enjoined certification of a responsible officer of the cellular company, any reflections occurring therein qua the call details reflected therein hence emanating from the respective cell phones of the accused and the deceased hold no conclusivity in fostering a firm conclusion of both prior to the occurrence holding conversation over their respective cell phones. As a corollary, it is to be held of the reflections in Ex.PW29/B, C, D and E not acquiring any evidentiary strength to wean a conclusion from this Court of both the deceased and the accused holding prior to the occurrence any conversation over their respective cell phones nor it can also be concluded of theirs prior to the occurrence holding any mutual intimacy. What aggravates the aforesaid conclusion is the fact of none of the cell numbers referred in the aforesaid exhibits belonging to the accused or to the deceased. In aftermath, with this Court concluding of the probative vigour of the purported best evidence in portrayal of the accused and the deceased prior to the occurrence conversing over their respective cell phones standing jettisoned, the imminent deduction therefrom is of the oral testimony of PW-3 qua both the deceased and the accused prior to the occurrence regularly conversing over their respective mobile phones suffering emasculation whereupon its evidentiary worth is discountable. The effect of the aforesaid discussion is with the prosecution failing to adduce conclusive evidence of the accused and the deceased prior to the occurrence holding intimacy with each other whereupon hence it erects on PW-1 settling her matrimony with a person other than the accused, the hopes of the accused to marry her standing torpedoed, his hence nursing a motive to murder the deceased, to suffer impairment. 12. The prosecution has also placed reliance upon the testimony of PW-6, wherein unfoldments occur of the accused hiring his cab on 31.10.2007 at Khundia, wherefrom they proceeded at about 4/4.30 p.m. towards Purva, whereat the accused disembarked therefrom, returning back with a girl, both of whom he carried to Bhagolu Ghata whereat both alighted. However, he resiled from his previous statement recorded in writing. Even though on his hence standing declared hostile whereupon he stood subjected to cross-examination by the Public Prosecutor concerned whereat he stood confronted with his previous statement recorded under Section 164 of the Cr.P.C., comprised in Ex.PW27/R, exhibit whereof holds depictions in portrayal of his carrying both the accused and the deceased in his vehicle upto Bhagolu Ghata yet he thereat denied qua his voluntarily making any of the recitals occurring therein. Contrarily, with his deposing of his making Ex.PW6/A under threatenings meted to him by SHO Bhagat Singh, whom he deposes to be standing outside the Court room when his statement stood recorded by the Magistrate concerned weans a conclusion from this Court of his standing led by the Investigating Officer concerned to the Court of the Magistrate concerned, rather coaxes a conclusion of the Investigating Officer exerting pressure upon him to make a statement in tandem with his volition besides with the Investigating Officer remaining positioned outside the court room at the time his statement standing recorded by the Magistrate concerned, renders it to be in its entirety to be not free from any stain of his standing encumbered with proactive duress exerted upon him by the Investigating officer. In sequel, when his statement recorded in Ex.PW6/A is construable to be not voluntarily made by him any recitals occurring therein ascribing an incriminatory role to the accused stand denuded of their probative worth. In sequel, when his statement recorded in Ex.PW6/A is construable to be not voluntarily made by him any recitals occurring therein ascribing an incriminatory role to the accused stand denuded of their probative worth. Even otherwise with PW-6 not unraveling the identity of the deceased constrains a conclusion that a lady, if any, who sat besides the accused in his cab standing not firmly connected with the identity of the deceased. Consequently, the deposition of PW-6 cannot command any vigour qua its holding echoing to succor the factum of the deceased last seen with the accused. 13. Likewise, the testimony of PW-22 Kamlesh Kumar, who in his statement comprised in Ex.PW22/A recorded under Section 164 of the Cr.P.C., before the Magistrate concerned, ascribes an incriminatory role of a person other than his cousin Tota Ram occupying the cab , whom he dropped at Purva whereat he brought a girl, who sat besides him in his cab, both of whom alighted at Bhagolu Ghata, the place in close proximity to the site whereat the body of the deceased stood recovered, whereupon strength to the incriminatory role is concerted to be fastened upon accused also acquires no evidentiary leverage on the score of his testifying in Court of it being made by him under duress exercised upon him by the Investigating Officer whereupon his testimony stands stripped off the virtue of voluntariness, rendering it to be discardable. Even otherwise, in his deposition there is no revelation qua the identity of the accused and the deceased. In sequel, even if assumingly his testimony holds veracity qua a lady and a man other than Tota Ram occupying his vehicle yet when the identity of the aforesaid not stands connected with the identity of the accused or with the identity of the deceased, fillips an inference of the testimonies of both, PW-6 and PW-22, depended by the prosecution for securing a conclusion from this Court of both the accused and the deceased standing last sighted in proximity to the place whereat the body of the deceased stood recovered, rendering hence the accused to be amenable to face conviction for the charge for which he stood tried, being off the legal tangent for securing a firm conclusion qua the prosecution succeeding to connect the link aforesaid in the chain of circumstances. Also with this Court discounting the efficacy of the purported motive nursed by the accused for eliminating the deceased, the effect, if any, of the testimonies of PW-6 and PW-22 in theirs purportedly succoring the prosecution case of the accused and the deceased standing last sighted in proximity to the place whereat the body of the deceased stood recovered hence suffers dissipation. 14. On the anchorage of the accused identifying under memo Ex.PW 23/F the place whereat he murdered the deceased, preceding whereof a disclosure statement of the accused comprised in Ex.PW24/A stood recorded by the Investigating Officer, the prosecution canvasses of its connecting the accused in the commission of the murder of deceased Rachana. The aforesaid connectivity as stands canvassed to beget an inference of the accused murdering the deceased, gets severed by a prominent display of preceding thereto on 9.11.2007 the Investigating Officer accompanied by Trilok Chand, Suman Kumar and Dr. D.P. Swami, Forensic expert, detecting the place whereat the body of the deceased was located. Naturally, the identification by the accused of the place whereat he murdered the deceased stands belittled of its probative worth as prior thereto the body of the deceased stood detected on 9.11.2007 by the police, also the subsequent identification by the accused on 20.11.2007 of the place whereat he murdered the deceased is legally unworthwhile as it stands palpably engendered by the Investigating Officer concerned on holding the custody of the accused, his leading the latter to the place where he had earlier thereto detected the place of location of the body of the deceased. Any prior knowledge held by the Investigating Officer qua the location of the body of the deceased is a negation to the principle of law of the accused being the sole repository of knowledge qua the place of keeping and hiding/concealment of the dead body of the deceased. Since, the aforesaid principle stands negated whereas its remaining intact would foster a conclusion of the identifiation of the place whereat he murdered the deceased enjoying evidentiary succor, contrarily when for reasons aforestated its evidentiary succor gets evaporized, no reliance can be placed upon memo Ex.PW23/F whereunder the accused identified the place whereat he murdered the deceased. Since, the aforesaid principle stands negated whereas its remaining intact would foster a conclusion of the identifiation of the place whereat he murdered the deceased enjoying evidentiary succor, contrarily when for reasons aforestated its evidentiary succor gets evaporized, no reliance can be placed upon memo Ex.PW23/F whereunder the accused identified the place whereat he murdered the deceased. In sequel, when both, the disclosure statement of the accused comprised in Ex.PW24/A also the identification of the spot by the accused under memo Ex.PW23/F, whereat the body of the deceased stood previously detected by the police hence standing stained with a vice of the investigating officer during the course of his subjecting the accused to police remand his under compulsion obtaining from the accused the recitals contained in the aforesaid memos. In aftermath, the identification under memo Ex.PW23/F of the relevant place at the instance of the accused, whereat the body of the deceased stood previously detected by the police cannot constitute any legally sustainable link against the accused for recording a finding of conviction against him. 15. Furthermore, for succoring its case against the accused the prosecution had depended upon the testimony of PW-16, Vikramjeet, who suffered police custody from 18.11.2007 to 26.11.2007, during course whereof he had recorded a statement qua the accused on 1.11.2007 visiting his house whereat he made a confession qua his committing the offence ascribed to him by the prosecution besides requisitioned his help for disposing the body of the deceased. However, the aforesaid evidence of PW-16 comprised in his statement made before the Investigating Officer qua the facet aforesaid acquires no potency in the light of his deposing of his making it under duress exerted upon him by the Investigating Officer concerned, compulsion whereof exerted by the Investigating Officer stands testified to be constituted in the factum of an assurance standing purveyed to him of thereupon his role, if any, in the commission of the offence for which he suffered police remand would stand exculpated. In sequel, when the incriminatory evidence against the accused comprised in the statement of PW-16 embodying therein the facet of the accused making an extra judicial confession before him and of his soliciting his help in disposing off the body of the deceased emanated from proactive exertion of duress upon him by the investigating officer, the apposite exertion of duress stands testified to be anchored upon a promise to him by the Investigating Officer to camouflage his incriminatory role, if any, in the offence alleged, strips it off its essential nuance besides rubric of it emanating from his pure volition. Consequently, any reliance thereupon by the prosecution for nailing findings of conviction against the accused is wholly inapt, preeminently, when this Court has discounted the probative worth of Ex.PW23/F and Ex.PW24/A recorded by the Investigating Officer at the instance of the accused, in sequel whereto the place, whereat the body of the deceased stood earlier detected by the Investigating Officer concerned, stood subsequently identified by the accused, with a cascading effect of hence both the exhibits Ex.PW23/F and Ex.PW24/A losing their creditworthiness. 16. Lastly, the prosecution case depends upon another disclosure statement of the accused comprised in Ex.PW5/A holding therein recitals of concealment of place of handle of screwdriver which he enclosed in a “dibi', in sequel whereto he got its recovery effectuated under memo Ex.PW5/C from the place of its hiding. Also the effectuation of recovery under memo Ex.PW5/C at the instance of the accused of his burnt pant and sweater from the relevant place of its hiding or concealment by him under memo Ex.PW5/C preceding whereof he made disclosure statement comprised in Ex.PW5/B stands pressed into service by the prosecution qua hence its lending sustenance to the commission of the offences ascribed by it vis-a-vis the accused. 17. 17. However, before dwelling upon the efficacy of the recoveries made under memos aforesaid by the Investigating Officer at the purported instance of the accused, it is a solemn obligation of this Court to allude to the testimony of PW-18, who prior to the identification of the body of the deceased by the accused had visited the relevant site on 9.11.2007, for disinterring therefrom qua the ascription by him in an opinion comprised in Ex.PW18/F qua the demise of the deceased standing sequeled by user of a screw driver, handle whereof, Ex.P-11 stood recovered under Ex.PW5/C when countervails his previous opinion qua the cause of demise of the deceased occurring in Ex.PW18/E wherein contrarily he ascribes her demise standing sequeled by suicidal hanging hence holding any veracity. The subsequent opinion recorded by PW-18 qua the demise of the deceased standing sequelled by user of screw driver on the person of the deceased stands comprised in Ex.PW18/F, when apparently stands foisted upon the apposite confession made in his presence by the accused on 20.11.2007 renders its making to be hence flawed it being tailored in consonance therewith. The opinion of PW-18 initially recorded in Ex.PW18/E wherein he ascribes the demise of the deceased standing sequelled by suicidal hanging when stood recorded thereat he was free from the presence of the accused before him also stood recorded when he was free thereat from any biased impression hence etched in his mind contrarily when it stood recorded dispassionately also when his mind set thereat was free from any encumbrances of any influence standing exerted upon him by any quarter, it alone hold sways and clout, for this Court forming a conclusion qua the cause of demise of the deceased. Also the subsequent opinion qua the demise of the deceased recorded by PW- 18 under memo Ex.PW18/F appears to be made under tutorings meted to him by the Investigating Officer concerned, preeminently when he on his visiting the relevant site on 9.11.2007 omits to record therein any observations qua his at the relevant site sighting evidence of torn kurta and scalp hairs of the deceased also his not making any recorded observations thereat qua his detecting in the vicinity of the deceased the burnt paint and sweater of the accused, rendering hence the recoveries thereof under memo Ex.PW5/C to be contrived as well as invented with a concomitant effect of the presence of the aforesaid items thereat in collusion with PW-18 standing engendered by the Investigating Officer. Furthermore, the occurrence in his deposition of the accused during the course of his interrogation in his presence confessing of his tying a wire around the neck of the deceased whereafter he dragged her body to a distance of 15-16 feet whereafter he threw her body down the hill also stands relied by the prosecution qua its connoting the guilt of the accused. Nonetheless its effects stands annihilated on the score of his on his visiting the site prior thereto on 9.11.2007, his testifying of his thereat observing the factum of the body of the deceased standing dragged by animals. With hence a loud negation initially of the aforesaid factum by PW-18 is ipso facto personificatory of his subsequent attribution to the accused of the aforesaid incriminatory role of his dragging the body of the deceased standing anvilled on the accused making a confession qua the facet aforesaid in his presence during his interrogation held by the Investigating Officer, besides his standing prodded by the Investigating Officer concerned, wherefrom also an inevitable inference ensues of the opinion comprised in Ex.PW18/F subsequent to his initial opinion comprised in Ex.PW18/E, qua the cause of demise of the deceased wherein he contrarily inculpated the accused holding no vigour. Consequently, with this Court negating the probative vigour of the opinion recorded by PW-18 in Ex.PW18/F PW-18 wherein he ascribes the cause of the demise of the deceased to stand aroused on the anchorage of the accused using a screw driver on her neck, any effectuation of recovery of any incriminatory items purportedly at the instance of the accused under memo Ex.PW5/C, lose their tenacity. In aftermath, all the links in the chain of circumstances erected by the prosecution against the accused get severed besides dismembered. 18. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of misappreciation and non appreciation of the evidence on record, rather it has aptly appreciated the material available on record. 19. Consequently, there is no merit in the instant appeal and it is accordingly dismissed. In sequel, the judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.