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Himachal Pradesh High Court · body

2016 DIGILAW 1801 (HP)

State of H. P. v. Bhajan Singh

2016-08-29

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of H.P. against the judgment of the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. rendered on 30.12.2009 in Sessions Trial No. 17/7 of 2006, whereby, it acquitted the accused/ respondent for an offence punishable under Section 302/34 of the IPC. 2. The facts relevant to decide the instant case are that 17.08.2005 at about 10.30 a.m. M.C. Amar Nath, No. 97 of P.P. Sri Naina Devi Ji, gave information in Police Station Kot Kehloor that as per telephonic message received from press reporter Sh. Rakesh Gautam, a dead body of a person was lying in Devraj Dharamshala. On this information SHO, P.S. Kot Kehloor visited the spot and found that an unidentified dead body was lying wrapped in the blanket in the room of the Dharamshala. On inquiry made from Smt. Anuradha Sharma, owner of the Dharamshala, it was revealed that on 15.8.2005 at about 10.00 a.m., 2 males and 2 females had approached her to hire one room and she accordingly let out one room to them upto 17.8.2005 on payment of Rs. 100/- per day. On 17.8.2005 when Smt. Anuradha went to the said room to check and lock it and when she unlocked the chain and opened the door she found that one person was lying with a blanket on him. When she called him he did not respond. Thereafter, the SHO took photographs of the spot and inspected the dead body and found that the hands of the dead body were tied with a piece of the cloth and were placed on the stomach. The throat of the dead body was also tied tightly with a cloth. After inspection of the spot and the dead body the SHO concluded that the unidentified person aged about 55 years had been murdered. Upon this he scribed a rukka containing the aforesaid information and sent the same to P.S. Kot Kehloor, on the basis of which FIR No. 106/2005, under Section 302/34 IPC was registered. During investigating the deceased was identified as Mohan Singh son of Sh. Dalip Singh, resident of Saundha Lehran, District Bhatinda (Punjab). Upon this he scribed a rukka containing the aforesaid information and sent the same to P.S. Kot Kehloor, on the basis of which FIR No. 106/2005, under Section 302/34 IPC was registered. During investigating the deceased was identified as Mohan Singh son of Sh. Dalip Singh, resident of Saundha Lehran, District Bhatinda (Punjab). The investigation further revealed that deceased Mohan Singh came to pay obeisance to goddess Sri Naina Devi Ji along with accused Bhajan Singh, Rani Kaur and Ramandeep Kaur on 15.8.2005 and stayed in Devraj Dharamshala in a room which was booked by the accused from 15.8.2005 to 17.8.2005. All of the three accused persons committed the murder of deceased Mohan Singh and left the aforesaid Dharamshala on 16.8.2005. 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 an offence punishable under Section 302/34 of the IPC. In proof of the prosecution case, the prosecution examined 22 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 led defence evidence and tendered in evidence copy of judgment of 6.12.2006 (Ex. D1) rendered by the Juvenile Justice Board, Una. 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 se-quelled 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. This Court with the able assistance of the learned Deputy Advocate General, has, with studied care and incision, evaluated the entire evidence on record. 8. The prosecution case rests upon circumstantial evidence. 9. 7. This Court with the able assistance of the learned Deputy Advocate General, has, with studied care and incision, evaluated the entire evidence on record. 8. The prosecution case rests upon circumstantial evidence. 9. 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 proven. Contrarily, with any of the links in the chain of circumstances getting dismembered, the prosecution case would suffer the ill-fate of its collapsing. 10. The initial circumstance relied upon by the prosecution to clinch the guilt of the accused/respondent herein stands anvilled upon the testimony of PW-4, Kuldeep Singh, who testified in corroboration to the prosecution version qua the accused/respondent along with Ramandeep Kaur visiting the dhaba of deceased Mohan Singh on 13th day of Savan whereto on the date aforesaid he had also proceeded given his brother serving in the dhaba of aforesaid deceased Mohan Singh. He has also testified in corroboration to the prosecution version of the aforesaid after remaining present at the dhaba of deceased Mohan Singh for 3-4 hours, theirs along with deceased Mohan Singh proceeding to Sri Naina Devi Ji. His testification qua the aforesaid facet occurring in his examination-in-chief has remained un-shattered during the ordeal of the rigorous cross-examination to which he stood subjected to. Consequently, the prosecution has succeeded in proving the initial link in the chain of circumstances constituted in the factum of PW-4 noticing at the dhaba of deceased Mohan Singh, the accused/respondent herein along with Ramandeep Kaur also its on the anvil of the testimony of PW-4 proving the further factum of theirs after remaining for 3 to 4 hours at the dhaba of deceased Mohan Singh, theirs along with deceased Mohan Singh proceeding to Sri Naina Devi Ji. However, proof of the aforesaid link would not be sufficient to record findings of conviction vis-a-vis the accused/respondent herein unless the further links in the chain of circumstances also stand cogently proven. 11. The demise of Mohan Singh occurred in Devraj Dharamshala owned by PW-1. Obviously vigorous proof was enjoined to be adduced by the prosecution in portrayal of on the ill-fated day the accused along with the deceased occupying Devraj Dharamshala. In proof of the aforesaid factum, the prosecution has relied upon the testimony of PW-1 Smt. Anuradha Sharma. 11. The demise of Mohan Singh occurred in Devraj Dharamshala owned by PW-1. Obviously vigorous proof was enjoined to be adduced by the prosecution in portrayal of on the ill-fated day the accused along with the deceased occupying Devraj Dharamshala. In proof of the aforesaid factum, the prosecution has relied upon the testimony of PW-1 Smt. Anuradha Sharma. She in her testification makes underscorings of on 15.8.2005 four persons including the accused/respondent along with Rani Kaur, along with the deceased and one minor girl visiting her Sarai where-to-whom she provided a room in her Sarai on payment of rent of Rs.100/-. She deposes qua an apposite entry qua theirs occupying a room in the Sarai owned by her standing recorded at serial No. 26 of the apposite register comprised in Ex.P-1. She has also made communications therein qua hers noticing the accused to be staying in the Sarai. She proceeds to depose of on 16.8.2005 accused Bhajan Singh and Rani Kaur after apprising her qua theirs intending to visit Baba Balak Nath, theirs departing from the Sarai. On 17.8.2005, she testifies of hers noticing the dead body of the deceased lying in a room of the Sarai owned by her. She was subjected to the ordeal of a rigorous cross-examination, wherein, she made a disclosure of the Sarai owned by her holding eight rooms. She has also admitted the suggestion put to her by the learned defence counsel qua the remaining rooms of her Sarai having one door and one window. Furthermore, she testified qua the Sarai being a three storeyed building and of the accused occupying its ground floor wherein two rooms exist also she has disclosed in her cross-examination qua hers taken to obtain in the apposite register the signatures of the pilgrims, who occupied her Sarai. However, she has disclosed that at the time of arrival of the accused at the Sarai no entry was recorded in the register. Nonetheless, she deposes of the relevant entry in the relevant register standing recorded by her son Shashank. Also she deposes of on the relevant day no other pilgrims occupying any other room in her Sarai. She pronounces in her deposition qua the non existence of the signatures of the accused in the apposite register, Ex.P-1. 12. PW-3 Sh. Nonetheless, she deposes of the relevant entry in the relevant register standing recorded by her son Shashank. Also she deposes of on the relevant day no other pilgrims occupying any other room in her Sarai. She pronounces in her deposition qua the non existence of the signatures of the accused in the apposite register, Ex.P-1. 12. PW-3 Sh. Shashank Kumar, the son of PW-1 makes a communication in his deposition qua his in the apposite register comprised in Ex.P-1 under the instructions of his mother recording an entry therein qua the accused occupying a room in their Sarai. He alike PW-1 underscores in his deposition qua the non existence of the signatures of the accused in the apposite register comprised in Ex.P-1. However, he contradicts PW-1 qua the factum deposed by the latter of none other than the accused along with the deceased besides others accompanying them occupying rooms in their Sarai rather he deposes of on the relevant day four persons besides the aforesaid also staying in their Sarai. Also he concedes to the factum of the signatures of the aforesaid standing obtained on Ex. P-1. 13. For the testimonies of PW-1 and PW-3 to acquire sanctity in personification of the trite factum of the accused on the relevant day along with the deceased occupying their Sarai, their respective testimonies on their mutual incisive scanning stand enjoined to be bereft of any intra se contradictions besides they imperatively stand enjoined to be bereft of any ring of unnaturalness whereupon an inference qua their testifications qua the facet aforesaid standing not stained with a vice of inveracity would stand aroused. PW-1 and PW-3 both depose qua the non existence of the signatures of the accused against the relevant entry recording his name in the apposite register comprised in Ex.P-1,. The non existence of the signatures of the accused against his name existing in Ex.P-1 would be both insignificant also would not belittle the factum of his on the relevant day along with the deceased staying in the Sarai owned by PW-1 and PW-3, factum whereof stands borne by his name standing recorded in Ex.P-1 unless forthright evidence emerged qua Ex.P-1 not also holding the signatures of all the other occupants who besides the accused along with the deceased and others accompanying them, also obviously on the relevant day stood lodged in the Sarai owned by PW-1 and PW-3. Now when PW-3 concedes to the factum qua four persons besides the deceased along with accused also on the relevant day standing lodged in their Sarai, also his further conceding qua theirs appending their respective signatures against their names recorded in Ex.P-1 does arouse suspicion qua the absence of the signatures of the accused against his name recorded in Ex. P-1. Conspicuously, PW-1 testifies of hers taken to obtain signatures of all persons who occupied her Sarai. Consequently, with momentous skepticism standing generated qua the absence of the signatures of the accused/respondent against his name occurring in Ex.P- 1 dispels the factum of his on the relevant day occupying the Sarai owned by PW-1 and PW-3. Furthermore, even if the accused/respondent had not appended his signatures against the relevant entry comprised in Ex. P-1 wherein his name stands recorded yet with cogent proof emanating embedded in the report of the Handwriting Expert qua the name of the accused existing in Ex.P-1 standing scribed by him would garner vigour to the assay of the prosecution qua the accused along with the deceased on the relevant day occupying the Sarai. However, the aforesaid evidence qua the accused scribing his name in Ex.P-1 is amiss. Consequently, an apt inference which stands generated qua the recording of the name of the accused in the apposite register comprised in Ex. P-1 is of it standing scribed by a person other than the accused also an inference stands aroused qua its occurrence therein germinating from a sheer contrivance employed by the Investigating Officer for falsely implicating the accused. Even otherwise when PW-3 contradicts PW-1 qua none other than the accused purportedly along with the deceased and others accompanying them occupying rooms in their Sarai, contradiction whereof stands underscored by his deposing of four persons other than the aforesaid on the relevant day occupying their Sarai, renders the deposition of PW-1 to stand ingrained with a pervasive vice of intra se contradictions vis-a-vis the testimony of PW-3 whereupon the vigour of the prosecution case qua the factum of the accused/respondent along with the deceased on the relevant day occupying the Dharamshala/Sarai gets frail besides emasculated. In sequel, the pivotal link in personification of the accused along with the deceased staying on the relevant day in Devraj Dharamshala stands not cogently proven. In sequel, the pivotal link in personification of the accused along with the deceased staying on the relevant day in Devraj Dharamshala stands not cogently proven. In aftermath, with the aforesaid pivotal link in the chain of circumstances standing hence severed, the vigour of the deposition of PW-4 also holds no strength. 14. Be that as it may, the prosecution had relied upon the circumstance of the accused refusing to participate in the test identification parade whereupon it espouses of an adverse inference therefrom standing generated vis-a-vis the accused. However, the aforesaid espousal made by the prosecution is unworthy of credence given the accused explicating his refusal to participate in the test identification parade by projecting qua his standing already shown by the police to the relevant witnesses. Since, the explication aforesaid purveyed by the accused for his refusal to participate in the test identification parade remains un-rebutted, the inevitable sequel therefrom is of no adverse inference standing enjoined to be drawn vis-a-vis the accused qua his refusal to participate in the test identification parade also the identification, if any, in Court of the accused by PW-1 and PW-3 also hence holds no sinew prominently when their respective versions qua the ill-fated occurrence holding ascription of inculpation vis-a-vis the accused stand ingrained with a pervasive vice of inveracity. Despite the aforesaid frailties ingraining the testimonies of PW-1 and PW-3 hence rendering their testifications qua the facet aforesaid of the accused along with the deceased on the relevant day visiting their Sarai being bereft of any credence, the prosecution has depended upon the testimony of PW-5 Sh. Madan Lal to make a vigorous concert for sustaining the factum of the accused along with the deceased preceding the occurrence standing last seen in the vicinity of the Sarai owned by PW-1 and PW-3 for hence empowering it to thereupon erect a concomitant link for clinching the factum probandum of his committing the offence alleged. 15. Madan Lal to make a vigorous concert for sustaining the factum of the accused along with the deceased preceding the occurrence standing last seen in the vicinity of the Sarai owned by PW-1 and PW-3 for hence empowering it to thereupon erect a concomitant link for clinching the factum probandum of his committing the offence alleged. 15. A close scrutiny of the testimony of PW-5 unveils the factum of his identifying the accused to be the person, who along with other three visited his shop whereupon they solicited his help qua availability of rooms on rent for facilitating their stay, leading him to make an inquiry from PW-1, who stands testified by him to stand sighted to occupy her veranda adjoining his shop, inquiry whereof made by PW-5 from PW-1 qua the facet aforesaid evinced a reply in the affirmative from her, whereafter he sent them to PW-1. He has also identified the girl and the man depicted in Mark-A and Mark- B to be respectively the accused and the deceased respectively. Primarily veracity to his deposition qua a request standing made upon him by the accused qua the availability of rooms on rent for their stay at Sri Naina Devi Ji whereupon he made an inquiry from PW-1, who stands testified by him to be sightable from his shop, enjoins to be dwelt upon. In dwelling upon the veracity of the aforesaid factum, an allusion to Ex.PW21/F is imperative wherefrom an inference is garnerable of the house of PW-1 standing not located in the vicinity of the shop of PW-5. Given the non occurrence of the shop of PW- 5 in the vicinity of the house of PW-1 mobilizes an apt derivative of PW-5 making a false testification qua his on an entreaty made upon him by the accused qua availability of rooms on rent at Sri Naina Devi Ji for his along with others accompanying him staying there, his making an inquiry from PW-1, who stood sighted by him from his shop, also leads to a further sequeling inference of his concocting the factum of the accused along with the deceased visiting his shop on 15.8.2005 also denudes the vigour of his testimony of his last sighting them together. Furthermore, also his identification in Court of the accused to be the same person who stood sighted byhim in the company of the deceased in proximity to the site of occurrence holds no vigour, more so, when preceding the holding of the test identification parade the accused stood evidently for reasons aforestated shown to him besides to other prosecution witnesses by the police, rendering both inefficacious besides nugatory any endeavour of the prosecution to constrain the accused to participate in the relevant test identification parade also rendering inconsequential his refusal to participate therein, rather also conspicuously, for reiteration any identification in Court by accused PW-5 is unworthy of any creditworthiness. 16. Jug, Ex. P-12 and glasses Ex.P-13 and P-14 stood recovered under memo Ex.PW2/C from the shelf of the room of the Sarai wherein the body of the deceased was found lying, finger prints existing thereon stood lifted by the Investigating Officer whereupon they stood transmitted to the Finger Print Expert who on tallying the finger prints borne on Ex.P-13 and P-14 with the finger prints of the accused opined qua occurrence of intra se compatibility. On anvil aforesaid the prosecution makes a fervent endeavour qua findings of conviction being returned against the accused. However, the factum of recovery of Ex.P-13 and P- 14 under memo Ex.PW2/C from the shelf of the room of the Sarai wherefrom the dead body of the deceased was recovered is vulnerable to skepticism emanating from the factum of rukka, Ex.PW21/A which stood scribed by the Investigating Officer after his verifying the spot, omitting to make a disclosure therein qua their existence therein also inquest report, Ex.PW21/B being reticent qua their existence therein. Both rukka, Ex.PW21/A and inquest report, Ex.PW21/B stood prepared on 17.08.2005 by the Investigating Officer. Both the aforesaid exhibits stand scribed in similar handwriting also both stands scribed on papers holding a similar colour yet with Ex.PW2/C whereunder jug, Ex.P-12 and glasses, Ex.P13 and P-14 stood recovered standing scribed in a handwriting distinct from the handwriting occurring on Ex.PW21/A and Ex.PW21/B, stimulates an aggravated impetus to a formidable conclusion qua preparation of Ex.PW2/C standing imbued with a vice of concoction also with a vice of an ingenuous contrivance employed by the Investigating Officer. Also the omission of the Investigating Officer to record in both Ex.PW21/A and Ex.PW21/B, the presence of Ex.P12, Ex.P13 and Ex.P-14 in the relevant room holds an effect of its opening leeway to the Investigating Officer to subsequently plant them in the relevant room, consequently, it appears of his engineering the occurrence of Ex.P-12, P-13 and P-14 in the relevant room. Necessarily, hence their engineered occurrence in the relevant room negates any imputation of credibility qua the prima dona factum of their occurrence thereat holding contemporaneity with the visit to the relevant room of the Investigating Officer. For lack of contemporaneity qua their existence thereat vis-a-vis the visit thereat of the Investigating Officer amplifyingly begets a deduction in coagulation with the inference of their existence thereat standing stained with a vice of invention besides concoction of hence their occurrence thereat not holding any creditworthiness for ascribing any inculpatory role to the accused qua his occupying the relevant room along with the deceased. Though photographs Ex. PA to Pk pertain to the relevant spot where amongst whom Ex. PF pertains to the location on the relevant spot of Ex. P-13 and P-14. However, the depictions in Ex.PF of Ex.P-13 and P-14 is insufficient to sway this Court of the Investigating Officer succeeding to countervail the effect of the aforesaid inferences prominently when Ex.PF stands printed on a paper nomenclatured as “Professional Colour Paper” whereas other photographs clicked by the Investigating Officer stand printed on a distinct paper nomenclatured as “ Super Cold Paper” hence leaving latitude for harbouring a deduction of the Investigating Officer in consonance with Ex.PW2/C besides to corroborate the recitals embodied in Ex.PW2/C his photographing the existence at the relevant spot of Ex.P-13 and P-14 merely as an engineered ploy or a sheer contrivance for falsely implicating the accused. Since, a pervasive aura of skepticism seeps qua the existence in the relevant room of Ex. P-13 and P-14 also this Court erecting an inference of their existence thereat standing ingenuously contrived by the Investigating Officer hence fostering an evident sequel qua the opinion of the Finger Print Expert in sequel to his tallying the finger prints existing on Ex.P-13 and P-14 with the finger prints of the accused qua both holding intra se compatibility, also holding no clout for thereupon rendering findings of conviction against the accused. Contrarily, it is apt to conclude of the Investigating Officer during the course of his holding the accused to custodial interrogation his obtaining on Ex.P-13 and P-14 the finger prints of the accused necessarily hence with the Investigating Officer under coercion obtaining on Ex.P-13 and P-14 the finger prints of the accused dispels the factum of their existence thereon being a sequel to the accused voluntarily holding them also benumbs the conclusion of his along with the deceased occupying the relevant room. 17. The last circumstance pressed into service by the prosecution for clinching the guilt of the accused is the recovery of golden ring, Ex.P-17, Bag Ex.P16 and mobile phone, Ex.P15. However, the recovery of the items aforesaid at the instance of the relevant accused respectively under recovery memos, Ex.PW 8/A, Ex.PW7/B and Ex.PW7/A, items whereof purportedly belong to the deceased would not connect the accused in the commission of the alleged offence, given non adduction of emphatic proof qua the articles aforesaid belonging to the deceased. More so, when PW-8 who identified the aforesaid items to be the property of the deceased has been unable to communicate qua his ever sighting the deceased adorning them also has omitted to vociferously articulate qua the source of knowledge qua the factum of theirs standing owned by the deceased. 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 mis-appreciation 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.