IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 278 of 1997. Judgment reserved on 16.12.2010. Date of decision: 06.1. 2011. State of H.P. …. Appellant. Versus Darshan Kumar and another …. Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondents : Mr. Neeraj Sharma, Advocate. Surinder Singh, J State has challenged the acquittal of the respondents passed by the learned trial Court, in Sessions case No. 53-S of 1995, decided on 28.2.1997, for the offences punishable under Sections 302, 392 read with Section 34 Indian Penal code, in the present appeal, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - allegedly committing the murder of late Shri Om Parkash Banga and robbery of Jewellery from his residence. (A) BACKGROUND OF THE CASE. 1. Shri Om Parkash Banga (deceased) was running business in his five storied building in Naya Totu Bazar. He had a cloth shop abutting his residence; where he was living in the said accommodation with his wife PW 4 Smt. Sudershan Banga, one unmarried daughter and son PW3 Avinash Banga, a school going son. His elder daughter Sangeeta was already married at Ambala to PW7 Harish Kumar. On 24.4.1995 Smt. Sudarshana Banga had gone to Ambala to drop her daughter Sangeeta in the house of her in-laws along with another daughter, leaving behind her husband Om Parkash Banga and his son PW3 Avinash Banga. In their absence on 26.4.1995, Shri Om Parkash Banga was found murdered. His dead body was lying in the bed room. The music sound system was going on high pitch. (B) POSECUTION STORY. 2. In nutshell, prosecution story goes on like this. Accused respondent Darshan Kumar was a client of the deceased and had been occasionally visiting his work place. On 26.4.1995, at about 8. 45 Am., he along with his - 3 - friend Surjeet Kumar accused visited the business premises of deceased Om Parkash at Naya Totu. At that time, the door of the shop was open but he was in the kitchen, preparing break-fast for his son who, at that time was a student of 9th standard and was to go to his School. Darshan Kumar had borrowed some money from the deceased and was to settle the accounts with him. The deceased told him to wait for sometime in the drawing room and both of them kept sitting there and he went to kitchen to prepare the breakfast for himself and his son. (ii) After preparing the breakfast and serving it to his son, he joined the respondents in the drawing room. After getting ready for his school, his son PW3 Avinash Banga left for his school around 9.15 a.m. leaving behind his father in the company of the respondents, who, at that time were discussing some matter. (iii) When son of the deceased had left for the School, respondents allegedly committed the murder of Om Parkash Banga. Respondent Surjeet Kumar inflicted injury with a sharp edged weapon on the chest of the deceased. Thereafter both the respondents caused the - 4 - death of deceased by strangulation, smothering and threw him on the floor of his bed-room. Thereafter both of them decamped with the jewellery of the deceased and his wife (PW4). (iv) PW2 Nirmala DeviDevi, was an employee in a Song and Drama Division of Government of India. Her office was in one of the portion of the same building owned by the deceased. Around 10.45 a.m., she visited the shop of the deceased with a view to buy dupatta. She found the shop partly open but after waiting for sometime, nobody turned up. Thus, she stepped in to the adjoining room of the deceased. She was aghast to see the dead body of Om Parkash Banga lying with face downwards on the ground in a pool of blood. The music sound system was on high pitch. She raised an alarm. Son of the deceased PW3 Avinash Banga was called from the School. He reached his residence at about 11 a.m and noticed that his father was lying with the face downwards, blood was all around. He informed his mother telephonically, who was at Ambala. - 5 - (v) On receiving information from her son PW4 Smt. Sudrashan Banga along with both her daughters and PW7 Harish Kumar her son-in-law reached the same evening i.e. 26.4.1995 at about 4 p.m. Shimla at her residence. In the meantime, PW16 Amar Dev had informed the police at about 11.30 a.m. PW22 Jeet Ram Inspector/SHO along with police party visited the spot and took into possession the dead body of the deceased. (vi) On seeing the dead body, Smt. Sudarshana Banga fell unconscious. PW7 Harish Kumar took her to IGMC Shimla. She was discharged after giving some medicines and reached her residence at about 10 p.m. (vii) The dead body was sent for autopsy. Police picked-up the blood from the bed-room in a small bottle Ext. P16 which was sealed. PW22 Jeet Ram Inspector also took into possession the blood stained pillow Ext. P17, bed-sheet Ext. P18 and both these items were sealed and taken into possession vide recovery memo Ext.PW7/B. (viii) In the morning of 27.4.1995 PW4 Sudarshana Banga inquired from her son about the sequence - 6 - of events. It was then, he told her that around 8.45 a.m. on the previous day, when he was to go to the School, respondents had visited his father. Out of them, he knew respondent Darshan Kumar @ Banti as he had been oftenly visiting his father in his shop/residence. He also told that he could recognize another person who was accompanying him. He further informed her that both the respondents and his father were in the drawing room when he left for his School. (ix) Thereafter PW4 Sudarshana Banga made a statement Ext. PW4/A to the Police under Section 154 of the Code of Criminal Procedure which was made the basis of registering FIR Ext. PW17/A. 3. PW21 Dr. D.K. Ghosh Professor and Head of Department of Forensic Medicine IGMC Shimla had conducted the autopsy of the dead body on 27.4.1995. In his opinion, deceased had died due to asphyxia due to ligature strangulation and smothering (an attempt) causing cardio respiratory failure. - 7 - (C) RECOVERIES AND MEDICAL EXAMINATION OF ACCUSED PERSONS: 4. On 28.4.1995 respondent Darshan Kumar was arrested by the police and bill Ext. PW7/F with respect to dry cleaning of the jacket was recovered from the possession of the said respondent. During his interrogation by PW22 Inspector Jeet Ram, he made a disclosure statement Ext.PW5/A in the presence of PW5 Sain Ram and PW7 Harish Kumar to the effect that he had kept concealed his blood stained shirt Ext. P14 in the bushes at Chakkar by-pass road and Mufflar (scarf) Ext. P19 in the area of Bemloe which was used to strangulate the deceased. He could recover the same. Pursuant to the said disclosure statement, the above articles were got recovered. The bill Ext. PW7/F recovered from the possession of Darshan Kumar pertained to M/s Lal and Sons dry cleaners, whereby he had given his Jacket Ext. P20 for dry-cleaning on 26.4.1995. It was taken into possession from them vide memo Ext. PW7/E. 5. As per case of the prosecution, after committing alleged crime, respondent Surjeet Kumar had left for Amritsar along with some jewellery. He was arrested at Amritsar and brought to Shimla on 30.4.1995. He made - 8 - disclosure statement at Shimla that some of the jewellery articles were kept by him in the house of his sister. He asked his brother-in-law PW10 Vijay Kumar to fetch the jewellery from the house of his sister which was produced by PW10 aforesaid before the Police on 2.5.1995. The said articles contained three gold rings Ext. P3 to Ext. P5, three gold plated bangles Ext. P6 to Ext. P8 and two pairs of artificial ear rings Ext. P9 and Ext. P10, which were identified by PW4 Sudarshana Banga to be her own. 6. After his arrest on 27.4.1995 Darshan Kumar was got medically examined on 29.4.1995 at 4 p.m. He was having linear abrasion 3cm long over lateral aspect of left wrist joint. Probable duration was around 48 hours. His Medico Legal Certificate is Ext. PW1/A. 7. Surjeet Kumar accused was got medically examined on 1.5.1995 at 2 p.m. He was found having three simple injuries caused within a week. His Medico Legal Certificate is Ext. PW4/A. 8. He also made disclosure statement Ext. PW9/A on 1.5.1995 in the presence of PW9 Rameshwar Vaid and one Vinay Kumar to the effect that he had concealed the knife Ext. P15 in his room in Krishna Nagar Shimla and also blood stained pull-over Ext. P21. Thereafter he also - 9 - disclosed having concealed one pair of gold ear rings Ext. P1 and one gold plated chain Ext. P2 in his room, in the presence of witnesses. The jewellery Ext. P1 and P2 were recovered and were identified by PW4 Sudarshana Banga allegedly having been stolen from her residence. Knife Ext. P15 and pullover with blood stained Ext. P21 were also got recovered and sealed. 9. On 5.5.1995, PW22 Jeet Ram Inspector raided the residential premises of Darshan Kumar accused located in the area of New Shimla in the presence of Sudarshana Banga and recovered silver jewellery Ext. P11 to Ext. P13 which were taken into possession vide memo Ext. PW4/D. These were identified by Smt. Sudarshana Banga, belonging to her. (D) FORENSIC REPORT. [EXT. PX] 10. Jacket Ext. P20 and blood stained shirt of Darahsn Kumar accused and pullover of accused Surjeet Kumar Ext. P21, knife Ext. P15, pillow Ext. P17 bed-sheet Ext. P18 and bottle Ext. P16 containing blood collected from the spot were sent for the forensic examination. As per the report, the jacket Ext. P20, other items contained human blood of group ‘B’. Though the jacket had the blood stains, but its origin could not be determined. - 10 - 11. After recording the statements of the witnesses and completion of the investigation, police found the complicity of the respondents in the commission of the aforesaid crime hence presented the challan in the Court for their trial. 12. After committal of the case, respondents were charge-sheeted by the learned trial Court for the aforesaid offences to which they pleaded not guilty and claimed trial. 13. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them. 14. When called upon to enter into their defence, they examined DW1 Smt. Manjit, sister of respondent Surjeet Kumar. According to her, her brother did not visit Amritsar nor gave any jewellery to her, as alleged. She further stated that the police had not requisitioned any jewellery from her house through anybody. - 11 - (E) FINDINGS OF ACQUITTAL BY THE LEARNED TRIAL COURT. 15. Since it was a case of circumstantial evidence, learned trial Court on the scrutiny of the evidence did not rely upon the circumstances aforesaid, as such acquitted the respondents of the offences charged. (F) SUBMISSIONS BEFORE THIS COURT IN APPEAL. 16. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General forcefully argued that the learned trial Court wrongly disbelieved the testimony of PW3 Avinash Banga son of the deceased. Respondent Darshan Kumar after arrest was medically examined and disclosed to PW1 Dr. L.R. Verma having sustained injuries in scuffle at 9.30 a.m. on 26.4.1995 which corresponded the time of death of the deceased caused within 30 hours. Further PW6 Dr. D.C. Chauhan had also conducted the medical examination of accused Surjeet Kumar on 1.5.1995 at 2 p.m. and noticed three injuries on his person having caused with blunt weapon with edge and duration was within a week which too corresponds to the time of death of the - 12 - deceased. It is also argued that the motive to cause the murder is writ large. Respondents are also connected by the recoveries of the blood stained clothes to which they got effected and also pursuant to their disclosure statements jewellery of PW4 Sudarshana Banga was got recovered by them. It is also argued that some of the articles, belonging to the deceased and his wife, as stated above, were recovered from the residence of respondent Darshan Kumar which were identified by PW4 Smt. Sudarshana Banga to be belonging to her, no satisfactory explanation was offered by the accused. Thus, in the totality of the circumstances, and also the report of the forensic examination, duly supported by the medical evidence categorically establishes the involvement of the respondents in the commission of the aforesaid offences and their acquittal has caused miscarriage of justice. 17. On the other hand, Shri Neeraj Sharma, learned counsel for the respondents while supporting the impugned judgment of acquittal vehemently argued that the testimony of PW3 Avinash Banga with respect to last seen does not inspire confidence and the alleged recoveries are nothing but a procured evidence. He - 13 - also ventilated that regarding theft of the jewellery items, no report was made by PW4 Smt. Sudarshanas Banga in her statement Ext. PW4/D which culminated into FIR and further that the recovery of any articles from the possession of respondent Surjeet Kumar also stands not connected with the offence. He further argued that the circumstances put forth do not fully establish the guilt of the respondents’ as they are not of conclusive nature and tendency, therefore, the acquittal of the respondents could not be interfered with. (G) OUR DISCUSSION OF EVIDENCE AND FINDINGS: 18. We have given our thoughtful consideration to the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 19. It stands proved on record that death of deceased Om Parkash Banga was homicidal. There were as many as 6 ante-mortem injuries on his person which are described in his post mortem report Ext.P21/A as under:- “1. There was presence of a contusion purplish in colour on mid fore head portion measuring 11 cmx 8 cms size, bone deep. 2. Also present is another contusion on bridge of nose 1 cm. from Nasion 1x 1 cm. size with - 14 - evidence of slight flattening of the tip of nose with clotted blood all over and around the nostrils. 3. Presence of contusion on the inner aspect of lower lip along with multiple petechial heamorrhagic spots. 4. There were presence of four scratch abrasions two of them cresenteric nail abrasions (Nail scratch abrasions) on right lower aspect of cheek along right mandibular ranus near to the angle along with two linear scratch abrasions on left lower face and left lateral aspect of neck measuring 5 cmsx 3 cms respectively. 5. There was presence of a sharp cut injury on front of chest in mid line with sharp cut inverted margins 1x 05 x 02 cms. Deep just bone deep, upper and slightly bivelled and directed left to right and below upwards in an oblique direction. 6. Presence of a sharp cut injury 1 cmx.5 x0.3 cm at the base of right thumb on inner aspect towards index finger with blood all around.” 20. PW21 Dr. D.K. Ghosh also found the patterned ligature mark on the front and middle portion of neck running horizontally over the thyroid cartilage, 17 cms. long and 6 cms broad (in its broadest part) with evidence of a contusion oval shaped on right side inter mixed with mark with no evidence of any abrasions around the - 15 - edges except for multiple has on the sides of the neck above clavicles more on right side. In the opinion of the doctor, the cause of death was asphyxia due to ligature strangulation and smothering which caused cardio respiratory failure and death. His final report is Ext. PW21/B. Doctor aforesaid also stated that the cut-injuries which have come on the clothes of the deceased, viz. shirt, banyan ((under vest), corresponding to injuries in front of the chest can be procured by the weapon (knife) which is Ext. P15. The mark of asphyxia consequent to ligature strangulation could be caused by the type of muflar Ext. P19 which is more consistent with findings on the front of neck regarding length and breadth of the ligature mark stated by him. 21. Now, the moot question in the instant case is whether the respondents are connected with offences charged or not. There is however, no direct evidence about the alleged crime. Prosecution relies upon following three circumstances: (i) Last seen, (ii) Injuries on the accused persons; AND (iii) Recoveries. - 16 - 22. In a case where there is no direct evidence and the case hinges upon the circumstantial evidence, the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622: 1984 Cr.L.J. 1738 has laid down following five golden principles as to how the circumstantial evidence has to be appreciated in a case. These principles are being continuously and constantly followed and hold good even today. It pointed out the conditions that must be followed before a case against an accused based on circumstantial evidence can be said to be fully established. They are: “(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (i) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty. (ii) The circumstances should be of a conclusive nature and tendency. (iii) They should exclude every possible hypothesis except the one to be proved, and (iv) There should be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and - 17 - must show that in all human probability the act must have been done by the accused.” 23. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 24. Further in Padala Veera Reddy versus State of Andhra Pradesh and others AIR 1990 SC79 and recently in Paramjeet vs. State of Uttrakhand: (2010) 10 SCC439 the above principles of law laid in Shard Birdhichand’s case supra have been reiterated. 25. To sum up, in case of circumstantial evidence, the inference of guilt should be drawn only if the circumstances are consistent with the hypothesis of the guilt of the accused excluding from other hypothesis and are of a conclusive nature. 26. Keeping in forefront the aforesaid ratio laid down by the Apex Court the evidence in the instant case is required to be appreciated with respect to the circumstances short-listed above. (i) LAST SEEN: 27. PW2 Smt. Nirmala DeviDevi is the witness who had seen the deceased Om Parkash Banga on 26.4.1995 lying dead on the floor of his room which was adjacent to his - 18 - shop. She noticed that at that time the tape-recorder was playing on a high pitch in that room. She was shocked and stepped out of the room and raised alarm. After sometime, people had gathered there. Thereafter PW3 Avinash Banga, son of the deceased was contacted in his school who was only informed about the ill-health of his father. He immediately rushed to his residence and reached about 11 a.m., he found his father lying dead on the ground with face down ward in a pool of blood. 28. PW16 is Amar Dev noticed the crowed outside the house of the deceased, went there and on coming to know about the murder of the deceased telephonically informed the police. Pursuant to this information, PW22 Inspector SHO Jeet Ram visited the spot around 11.45 a.m. and conducted the inquest proceedings. FIR came to be registered by him on the next date on statement Ext. PW4/A given by Smt. Sudarshanaa Banga, as stated above. 29. PW3 Avinash Banga is a material witness on this circumstance. He testified that on 26.4.1995 he was getting ready for his School. Respondent, whom he identified during the trial in the court, had visited his father at his residence. His father told them to sit in the drawing room. Both of them stayed there. His father prepared the - 19 - break-fast for him. He provided the break-fast to him and took his own break-fast to the drawing room where the respondents were sitting. The break-fast was finished by his father in his presence. He left for his school around 9.15 a.m. He further testified that right from 8.45 a.m. when he left for his School, respondents were sitting in the drawing room, discussing accounts and striking balance with his father. He further stated that earlier accused Darshan Kumar had also been visiting their house. He knew him by face. He also informed about the above facts, next morning to her mother, as she was unwell when she saw the dead body of his father and fell unconscious. 30. In cross examination, he stated that he was also interrogated/ questioned by the police before arrival of his mother and he had disclosed the name of accused Darshan Kumar to police who was nick named as Banti but he saw accused Surjeet Kumar for the first time on that day along with Darshan Kumar. He identified him when he was brought to the Police Station in this case. He further clarified that respondent Darshan Kumar had been buying goods on credit from them and had also borrowed funds from his father. His father had been maintaining the accounts relating to the credit and money lending as well. - 20 - He did not remember as to when he saw accused Darshan Kumar for the first time at his shop but stated that at an earlier occasion, prior to the said incident, respondent Darshan Kumar had visited them in the evening at the shop. He also stated that he did not know the number of the customers buying the goods on credit from their shop but according to him, he could name 20-25 such persons who are from their own area. He neither disclosed his address to the police nor he knew about it. Though he categorically stated that he had informed the police on the very day that two persons had visited their house when he was to leave for his School and his statement was recorded by the Police. 31. PW4 Sudarshanaa Banga his mother affords corroboration to his statement that she was informed by PW3 about the above facts in the morning on 27.4.1995, when she got up and was recovered from shock. Thereafter she made the statement Ext. PW4/A to the police which culminated into the FIR which makes the verbatim mention to the statement of PW3 Avinash Banga. 32. Against the aforesaid background, in our considered opinion, statement of PW3 Avinash Banga with respect to last seen theory of the deceased in the - 21 - company of the accused-respondents could not be shattered. 33. Legally, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged when it is established that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that probability of any person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of