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2016 DIGILAW 424 (HP)

State of Himachal Pradesh v. Sanjay Kumar

2016-04-06

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the judgment of the learned Sessions Judge, Kangra at Dharamshala, Himachal Pradesh, rendered on 22.01.2010, in Session Case No.21-P/VII-2009, whereby the learned trial Court acquitted the accused for committing offences punishable under Sections 302, 392 and 201 IPC of the Indian Penal Code. 2. The facts relevant to adjudicate the instant appeal are that on 17.3.2009 at about 5.15 p.m. in Dodra Forest the accused intentionally and voluntarily committed murder of Chameli Devi. It is further alleged that on the same date time and place the accused intentionally and voluntarily committed robbery and also caused disappearance of the evidence with the intention to screen himself from legal punishment. On conclusion of investigations into the offences allegedly committed by the accused a report under Section 173 of the Code of Criminal Procedure stood prepared and presented in the competent Court. 3. Accused/respondent stood charged by the learned trial Court for committing offences punishable under Sections 302, 392 and 201 of the Indian Penal Code. In proof of the prosecution case, the prosecution examined 14 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C. the accused was given an opportunity to adduce evidence in defence yet he chose not to lead any evidence in defence. 4. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent. 5. The appellant/State stands aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Additional Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of 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. 6. The prosecution case against the accused/respondent in its entirety rests upon circumstantial evidence. 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. 6. The prosecution case against the accused/respondent in its entirety rests upon circumstantial evidence. In a prosecution case anvilled upon circumstantial evidence, the prosecution is under a solemn legal obligation to clinchingly prove by efficacious evidence of probative worth each of the links in the chain of circumstances as stand constituted by it in exemplification of the inculpation of the accused/respondent for the offence for which he stood charged with, tried and acquitted. The prosecution in making an espousal qua the guilt of the accused standing clinched has pressed into service evidence of the accused standing last seen in proximity to the recovery of the body of the deceased by the Investigating Officer from Dodra Forest near Neugal Bridge evidence whereof stands embedded in the testimony of PW-3. Nonetheless any reliance upon his testimony for concluding of its constituting firm inculpatory evidence in proof of the link aforesaid in the chain of circumstances constructed by the prosecution against the accused would be neither apt nor the said link acquires any tenacity arising from the factum of (a) his deposing in his examination-in-chief of his identifying the accused in police custody 3 to 4 days subsequent to the body of the deceased standing recovered by the investigating Officer from a site in close vicinity to the place where PW-3 purportedly last saw the accused some time prior to the recovery of the body of the deceased renders both the factum of his last seeing the accused in proximity to the site of recovery of the body of the deceased besides as a corollary renders frail the factum of PW-3 last seeing the accused some time prior in proximity to the place of recovery of the body of the deceased, especially when neither in his previous statement recorded in writing nor in his recorded deposition on oath he has unraveled therein the key identifying features or traits of the accused as thereat gathered by him. The revelation of the key identifying features of the accused by PW-3 both in his previous statement recorded in writing besides in his recorded deposition on oath, was imperative, as he prior to the occurrence was unaware of both the name as well as the identity of the accused. The revelation of the key identifying features of the accused by PW-3 both in his previous statement recorded in writing besides in his recorded deposition on oath, was imperative, as he prior to the occurrence was unaware of both the name as well as the identity of the accused. His being unfamiliar with the name and identity of the accused prior to the ill fated occurrence enjoined upon him, for facilitating the holding of a test identification parade in accordance with law whereat his identifying the accused may have constituted a formidable piece of evidence against the accused, to prior thereto unfold to the police in his previous statement recorded in writing the key identifying features borne by the accused when he purportedly last saw him some time prior in proximity to the site where the recovery of the body of the deceased stood effectuated by the Investigating Officer. Even though the nonholding of a test identification parade would not be fatal to the prosecution case nor would it render the identification in Court of the accused for the first time by PW-3 to be both fragile besides tenuous in evidentiary worth. Nonetheless the empowerment of PW-3 to proceed to identify the accused for the first time in Court would rest upon a formidable evidentiary pedestal only if he had prior to his proceeding to do so had unfolded to the Investigating Officer in his previous statement recorded in writing the key features borne by the accused when he purportedly last saw him some time prior, in proximity to the site where the recovery of the body of the deceased stood effectuated by the Investigating Officer. Reinforcingly, in the absence of unfoldment by PW-3 either in his previous statement recorded in writing or in his recorded deposition on oath of the key identifying features borne by the accused would not lend any evidentiary value to both the factum of his purportedly last seeing the accused some time prior to the recovery of the body of the deceased by the Investigating Officer nor hence his identifying the accused in Court would stand on any sacrosanct pedestal especially when he had previous thereto at the behest of the Investigating Officer identified the accused when he was undergoing police incarceration, the identification whereof by him appears to have led him to identify him in Court. In sequel, the identification of the accused by PW-3 when he was undergoing police incarceration whereupon he proceeded to subsequently identify him in Court to be the person purportedly last seen by him some time prior in proximity to the site where the recovery of the body of the deceased stood effectuated by the Investigating Officer appears to be a contrived feeble link in the chain of circumstances invented by the Investigating Officer with the complicity of PW-3. In sequel for reasons aforesaid, anvilled upon the lack of revelation by PW-3 to the Investigating Officer in his previous statement recorded in writing or in his recorded deposition on oath of the key identifying features borne by the accused when he purportedly last saw him some time prior in proximity to the site where the recovery of the body of the deceased stood effectuated by the Investigating Officer renders not only the identification by him of the accused in police incarceration 3 to 4 days after the recovery of the body of the deceased to be of the very same person purportedly last seen by him in close proximity to the place where the recovery of the body stood effectuated to be tainted besides his identifying him in Court also acquires no probative worth predominantly when such identification especially when he identified the accused prior thereto in police custody stands spurred by a machination on the part of the Investigating Officer in collusion with PW-3. For reiteration, the evidence of the purported last seeing of the accused by PW-3 some time prior in proximity to the site where the recovery of the body of the deceased stood effectuated by the Investigating Officer hence gets shattered. In aftermath, the aforesaid link constituted by the prosecution against the accused gets dismembered. 7. Another link in the chain of circumstances constituted against the accused is comprised in the recovery of ear-rings and sandals of the deceased effectuated at the instance of the accused by the Investigating Officer. In aftermath, the aforesaid link constituted by the prosecution against the accused gets dismembered. 7. Another link in the chain of circumstances constituted against the accused is comprised in the recovery of ear-rings and sandals of the deceased effectuated at the instance of the accused by the Investigating Officer. However, any reliance thereupon by the prosecution to canvass qua the inculpatory role ascribed by it to him standing clinched, is unworthy of acceptance arising from the factum of PW-1 the witness to recovery thereof recording in his deposition comprised in his examination-in-chief of his relative prior to recoveries thereof in purported vicinity to the body of the deceased unraveling to him of theirs not existing in or around the body of the deceased whereupon an inference stands aroused of the items aforesaid recovered under Memo Ext.PW-1/C in close vicinity of the body of the deceased standing planted thereon by the Investigating Officer. A planted recovery by the Investigating Officer cannot be either efficacious nor would it carry any evidentiary worth. 8. Apart there-from, with PW-1 omitting to categorically depose in his deposition comprised in his examination-in-chief qua the place where the accused recorded his disclosure statement comprised in Ext.PW-1/B in sequel whereto recovery of items comprised therein stood recovered under Memo Ext.PW-1/C beclouds with suspicion the deposition of PW-14 the Investigating Officer of PW-1/B standing recorded by him at the Police Station whereupon a deduction stands aroused of the disclosure statement of the accused comprised in Ext.PW-1/B in sequel whereto recovery of the items disclosed therein stood recovered at the instance of the accused by the Investigating Officer under Ext.PW-1/B rather standing recorded at the place where the body of the deceased stood recovered besides an inference arises of the Investigating Officer planting thereat the items comprised in Ext.PW-1/C for falsely implicating the accused. Moreover, the depositions of both PW-6 and PW-7 in proof of both Ext.PW- 1/B and PW-1/C lose their respective creditworthiness in the face of their respective versions qua recoveries thereunder of the items recited therein for reasons afore-stated standing beclouded with an aura of suspicion, predominantly for reiteration spurred by the factum of the site of occurrence standing previously visited by the relations of PW-1 who thereupon as deposed by PW-1 apprised him of the items detailed in Ext.PW-1/C standing not lying or existing at or near or in the vicinity of the body of the deceased. With both Ext.PW-1/B and Ext.PW-1/C losing their probative worth, an inference which stands aroused there-from is of the motive which stands ascribed to the accused of his murdering the deceased for depriving her of her ear rings and nose pin also stands relegated in the limbo of oblivion. In face thereof, the motive ascribed to the accused by the prosecution for murdering the deceased when for reasons afore-stated remains unproven besides unsubstantiated by clinching evidence, a potent link in the chain of circumstances gets severed. 9. PW-9 (Dr.K.L.Kapoor) who conducted post mortem examination on the body of the deceased and proved his report Ext.PW-9/C, has underlined therein the factum of bruises occurring on the neck of the deceased standing sequelled by user of fingers thereon. However, the Investigating Officer neither collected the finger impressions borne on the bruises existing on the body of the deceased nor collected the finger prints of the accused for facilitating on comparison of both an opinion by the Finger Prints Expert of both belonging to accused. For the aforesaid omissions on the part of the Investigating Officer the clinching evidence comprised in the report of the Finger Prints Expert portraying therein of the bruises on the neck of the deceased on their comparison with the finger prints of the accused both belonging to the accused has remained unelicited besides obviously has remained un-adduced. For the aforesaid omission of the Investigating Officer, the Finger Prints Expert has been disabled to render a clinching report qua the facet aforesaid, constraining this Court to conclude of the demise of the deceased opined by PW-9 to stand sequelled by strangulation or by throttling being not attributable to the accused. 10. For the aforesaid omission of the Investigating Officer, the Finger Prints Expert has been disabled to render a clinching report qua the facet aforesaid, constraining this Court to conclude of the demise of the deceased opined by PW-9 to stand sequelled by strangulation or by throttling being not attributable to the accused. 10. The summom bonum of the above discussion is of the aforesaid discrepant evidence qua the guilt of the accused making pervasive and deep in roads qua the veracity of the prosecution version renders it to be suspect. Consequently, benefit of doubt ought to go to the accused. 11. 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 evidence on record, rather it has aptly appreciated the material available on record. 12. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned trial Court be sent back forthwith.