IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 205 of 1998. Reserved on 16.09.2010 Decided on : 15.12.2010 _____________________________________________________ State of Himachal Pradesh … Appellant. Versus Anek Kumar @ Anil Kumar @ Avinash @ Pammi @ Ashwani @ Tapan Rana … Respondent. Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. R.K.Sharma, Senior Additional Advocate General. For the Respondent : Mr. D.P.Chauhan, Advocate. V.K. Sharma, Judge The State is in appeal against acquittal of the appellant (accused) Anek Kumar @ Anil Kumar @ Avinash @ Pammi @ Ashwani @ Tapan Rana by the learned Session Judge, Shimla, H.P., vide judgment dated 15.12.1997, in Sessions Trial No. 50- S/7 of 1995, under Sections 302, 201 and 392 of the Indian Penal Code (IPC), for allegedly murdering Gurdip Singh (deceased) son of Shri Inder singh, resident of Madanpur, Tehsil Rajpura, Distt. Patiala (Punjab) and robbing him of the car being driven by him bearing registration No. CHK-7144 and thereafter destroying 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 the evidence of the crime with a view to screening him from punishment. 2. In brief, the prosecution case is that the deceased was employed as driver at Chandigarh with one Jaimal Singh, PW- 21, for driving his taxies and cars. He used to stay in Ram Darbar locality of Chandigarh with his uncle (father’s younger brother). On 20.6.1995, at about 6.00 PM he went to his uncle’s place where his Aunty Dalvinder Kaur was present at that time. He told her that he was going to Shimla with car No. CHK-7144 to drop a passenger and that he needed a sum of Rs. 500/- to purchase fuel and to meet other expenses for the to and fro journey. However, since she was having only Rs. 150/- with her, which she gave to him. 3. On 22.6.1995, a dead body was noticed under a culvert near Ghanahatti on Shimla-Bilaspur road by residents of the area. Around 10 or 11 A.M, a constable named Tulsi Ram happened to pass by the side where the dead body was noticed. The residents of area informed him about the dead body. The constable then arranged to send a verbal message to Police Station Boileauganj through a driver of an H.R.T.C bus. The area where the dead body was spotted falls within the jurisdiction of Police Station Dhalli and, therefore, S.H.O Police Station Boileauganj, on getting message from Tulsi Ram constable informed S.H.O Police Station Dhalli. The latter rushed to the spot. He tried to ascertain the identity of the deceased, but got no clue. The scene was got photographed by him. Thereafter, he conducted inquest and sent the dead body to the 3 hospital for post mortem examination. The doctor observed the following injuries on the dead body:- 1. Stab wound (punctured wound) 6 cm x 1.25 cm x 16 cm (deep) in the right side of sternal notch and traversing through the muscles, subcautaneous tissues and cutting through left brachiocephatic trunk (venous) and then cutting through upper pole of upper lobe of left lung and landing into the posterior wall of thoracic cavity 5 cm away from the vertebral column. Injury directed above downwards, right to left and anteroposteriorly. 2. Contusion of the skin and sub-cuteneous tissues 4 cm x 2 cm on the upper margins of injury No.1, reddish in colour. 3. Abrasion 5 cm x 3 cm on the left wrist on radial side, reddish in colur. Scratch abrasion 2.5 cm long adjoining to other abrasion. 4. Multiple scratch abrasions on the base of left thumb on its dorsal surface. 5. Wedge to spindle shaped punctured wound (stab injury) 2.5 cm x 1.20 cm x 9.25 cm on the inner border of right scapula. 7 cm from tip of scapula and 7 cm from midline (vertebral column). Injury traversed through chest wall (Poterior) upper pole of lower lobe or right lung and landing into upper pole of middle lobe. Direction of injury was above downward, right to left and postero anteriorly. 6. Spindle shaped contusion 10 cm x 2.5 cm in the midline in between the shoulder blades. Purplish in colour. 7. Spindle shaped contution 5 cm x 5 cm on the right side of injury No.6, 4 cm from injury No.6. Purplish in colour. 8. Abrasion 8 cm x .5 cm in the posterior axillary line left side, 1 cm from iliac crest. Middle area of abrasion showed skin deep laceration. 4 9. Crescentric nail marks on the left side of the neck near injury No.2. 10. Contusions of pinna of right ear with clotted blood in the ear. 11. Sub-conjunctival haemorrhage right eye bright red in colour. 12. Gross contusion or thyroid cartilage, trachea, hyoid bone, and surrounding muscles and thyroid gland but no fracture of these cartilages. 13. Gross contusion of oesophagus and tissues and muscles in the retroesophageal region and in para vertebral region. 4. The doctor also noticed that both the lungs had collapsed; the right one due to stab injury and the left due to haemothorax and injury to the upper lobe. He opined that the cause of death was the collapse of both the lungs which resulted in haemorrhagic shock and asphyxia. A blanket, a shirt and a towel were lying near the dead body. The same were taken into possession. Two blood stained stones also lay near the dead body. Those were also seized by the police. A five rupee currency note was found in one of the pockets of the shirt worn by the deceased. That was also taken into possession. 5. On the next day, Inder Singh PW-1, the father and Jaimal Singh PW-21, the employer of the deceased reached Shimla. They went to the mortuary and identified the dead body. It was thereafter that the post mortem examination was conducted. 6. On the night intervening 30th June and 1st July, 1995, one Kahna Singh driver of Maruti Van No. DL.6C-3315 had stayed in a hotel named Navrattan at Dhalli. Around 12.45 A.M. when he looked out through the window of the room, he had 5 been putting up in, he saw a man removing the number plate of a car. He came out and on inquiry that man told him that the papers of he vehicle were missing and that he wanted to take the vehicle for overhauling to Chandigarh. The man then got into the car and sped away towards Chhota Shimla. Kahna Singh chased him. When he reached near Dhalli Tunnel two constables Rakesh and Kashmiri Lal met him. He took their help in chasing the car. The car could not be controlled by the man due to excessive speed and it dashed against hill side of the road near Khalini Chowk. The man was over powered by Kahna Singh and two constables. He was none else but the accused. The accused gave evasive and conflicting replies when questioned by the police as to his name, parentage and address. He had with him a number of identity cards bearing his photographs but the names and addresses written on the cards were different. He also had with him a driving licence on which the name, parentage and the address of deceased Gurdip Singh was written but the photograph pasted therein was that of himself (the accused). He was taken into custody by the police under Section109 Cr.P.C and produced before the S.D.M (Urban),Shimla. Then his custody was got transferred by S.H.O Police Station Sadar, in connection with the case of theft of the car in which he had tried to speed away from near Navratan Hotel, Dhalli. The number of that car was DGB-3754. From Police Station Sadar, the S.H.O Police Station Dhalli got the custody of the accused transferred in connection with the present case. On 5.7.1995. He remained in police custody upto 18.7.1995 and was thereafter sent to judicial 6 custody. No recovery etc. could be effected at his instance during the aforesaid period, when he was in police custody. 7. On 1.7.1995, a car was found lying abandoned within the jurisdiction of Police Station Hamirpur. Its number plates were missing . Its chasis No. was 224557 and engine No. was 304909. S.H.O Police Station Hamirpur took that car into possession under Section 102 Cr.P.C and flashed wireless messages to all the S.H.Os. in the State of Himachal Pradesh. The chasis number and the engine number were same as that of car No. CHK-7144, by which the deceased had come to Shimla from Chandigarh on 20.6.1995. The S.H.O. Dhalli went to Police Station Hamirpur and noticed some brown coloured spots on the seat cover, steering cover, mats etc. Then he arranged to get those spots tested from Forensic Science experts who after carrying out some chemical tests opined that the same were stains of blood. The stained portions of the seat covers and the mats were cut off and sealed in a parcel and were sent to Chemical Examiner, who opined that the same bore stains of human blood of group B. The clothes which were removed from the dead body were also sent to the Chemical Examiner and he opined that the same were stained with human blod, group- B. Rear tyre and the battery of the car were found missing. 8. Since a number of identity cards and a driving licence in the names of different persons, including officials of Punjab Police, had been recovered from the accused at the time of his arrest under Section 109 Cr.P.C, on the night intervening 30.6.1995 and 1.7.1995, a case of cheating by impersonation 7 and forgery was registered against him at Police Station Dhalli on 9.9.1995 vide F.I.R No. 243/95. On 30.9.1995, his custody was got transferred in connection with the case of forgery and impersonation under the order of J.M.I.C (2),Shimla and his police remand was obtained for seven days. On 2.10.1995,when being interrogated by the S.H.O. Police Station Dhalli, namely Satish Kumar, the accused made a disclosure statement that he had stayed in Himachal Hotel Shimla from 28.6.1995 to 30.6.1995 and had left there an attaché-case containing the number plates of car No. CHK-7144, one pant, one speaker, one mirror of the car, stereo, a bunch of keys of cars etc. Pursuant to the aforesaid disclosure statement the aforesaid articles were recovered. The number plates appeared to have been repainted and a new number PB-22-2111 written over the new coat of paint. The original number CHK-7144 was also visible under the coat of paint. On 4.10.1995, the accused made another disclosure statement that he had sold a tyre and a battery to two different persons at Ghumarwin in Bilaspur District and a wrist watch of the deceased to a man at Kandror and could get the same recovered. Pursuant to that statement a battery, a type and the wrist watch were recovered. The owner of car No. CHK- 7144 identified the battery, the stereo, speaker and the tyre to be that of his car. The wrist watch got recovered from a man of Kandror and a pant found in the attaché-case got recovered by the accused from Himachal Hotel were identified to belong to the deceased by his employer. 8 9. On completion of investigation, charge-sheet was laid against the accused, who pleaded not guilty and claimed trial. In order to bring home guilt against the respondent, the prosecution examined as many as 27 witnesses. 10. On close of the prosecution evidence the respondent was examined under Section 313 Cr. P.C, wherein, his defence was that of total denial, innocence and false implication. However, he did not lead any evidence in defence. 11. On conclusion of the trial the accused was acquitted by the learned trial court. Being aggrieved, the State is in appeal against the impugned judgment dated 15.12.1997, which is supported by the accused. 12. We have heard the learned Sr. Addl. Advocate General and learned counsel for the parties and perused the record. 13. There being no ocular account about the occurrence, the case of the prosecution is based solely on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622, the Hon’ble Apex Court on analysis of almost the entire case law on circumstantial evidence dating back to the case of Pakala Narayana Swami v. Emperor, AIR 1939 Privy Council 47, has held that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The 9 circumstances concerned ‘must or should’ and not ‘may be’ established; (2) 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 explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must 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 must show that in all human probability the act must have been done by the accused. 14. In a recent judgment based on circumstantial evidence, the Hon’ble Supreme Court in G. Parshwanath vs. State of Karnataka, (2010) 8 Supreme Court Cases 593, has held as under vide paras 22, 23 and 24 of the report:- “22. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye- witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion 10 lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". 23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and 11 their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must 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 must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.” 15. In the present case, the prosecution had pressed into service the following circumstances to prove its case against the accused:- 12 (I) The car of the deceased crossed Kandror Toll Tax Barrier on 22.6.1995 at 12.35 P.M. and on the same day the dead body of Gurdip Singh had been spotted at Ghanahatti. (ii) On 22.6.1995, i.e on the very day of the crossing of the car of the deceased from Toll Tax Barrier Kandror, accused had in his possession a wrist watch of the deceased which he sold to Jai Lal PW-20 at Kandror for a sum of Rs. 100/-. (iii) On 28.6.1995, the accused had in his possession the battery and a tyre of the car of the deceased which he sold to two different persons at Ghumarwin. (iv) On 28.6.1995,the accused stayed in hotel Himachal with an attaché-case containing the pant of the deceased, number plates of the car of the deceased, a stereo and speaker removed from the car of the deceased and got that attaché-case recovered while in police custody in connection with the investigation of case F.I.R No. 243/95. (v) On the night intervening 30.6.1995 and 1.7.1995, the driving licence of the deceased with photograph of the accused pasted therein, was recovered from him ( the accused). 16. The above circumstances have been considered and dealt with by the learned trial Court in quite detail and exhaustively and the learned trial Judge has rightly come to the conclusion that none of the circumstances except circumstance no.1, which alone is not sufficient to return a finding of guilt against the accused, stands established beyond 13 reasonable doubt. On appraisal of the evidence on record, we are also satisfied that the evidence led by the prosecution is neither sufficient in content nor comes upto the mark when considered on the touchstone of the above test laid down by the Hon’ble Supreme Court for appreciation of circumstantial evidence. The reasons to arrive at this inference are set out hereafter. 17. In so far as circumstance at Sr. No. (ii) is concerned, it would be seen that the evidence regarding the sale of wrist watch by the accused to Jia Lal PW-20 and its recovery at the instance of the accused is quite doubtful. The accused had been taken into custody by the police in connection with this case on 4.7.1995 and he remained in police custody upto 18.7.1995. During this period of 13-14 days the police could not effect any recovery at his instance. The police could not present the challan against the accused with in 90 days and when they felt that he was going to be released on bail on account of non-filing of the challan they registered another case of cheating by impersonation and forgery against him and then obtained his police remand from the Magistrate and it was during the course of his interrogation in connection with the case of cheating by impersonation and forgery that the accused allegedly made the disclosure statement leading to the recovery of the wrist watch. PW-20 Jia Lal has stated that the wrist watch was sold to him, by accused Anek Kumar against receipt Ext. PFF. In the receipt, the name of the seller of the wrist watch is written as Tapan Rana. The witness has nowhere stated that at 14 the time of selling the wrist watch Ext. P-45 the accused had disclosed his name as Tapan Rana. Witness Jia Lal, the alleged purchaser of the wrist watch, is not resident of Kandror. He is resident of village Pahil. He was not supposed to have kept the receipt Ext.PFF with him on the day of the recovery of the wrist watch, when he allegedly went to Kandror to buy some merchandise for his shop. It is a matter of common knowledge that nobody carries the documents of ownership of personal belongings like wrist watch, ring, bracelet etc. A few contradictions are also there in the testimony of PW-26 S.I. Dev Raj and the record prepared by him. According to him the accused made the disclosure statement on 4.7.1995,but the memo of the alleged disclosure statement of the accused which is Ext. POO is dated 4.10.1995. The memo Ext. POO is attested by Yog Raj Sharma and Babu Lal. The contents of the memo are that the disclosure statement was made by the accused in the presence of the above named two persons. The prosecution examined Yog Raj as PW-24. He did not state that the accused made any statement regarding any wrist watch to PW-26 S.I. Dev Raj on 4.10.1995. He simply stated that the accused had made a disclosure statement on 2.10.1995 to another Investigating Officer of the case, namely PW-27 Satish Kumar regarding a suit-case and the number plates. Further Dev Raj S.I. has stated that the recovery of the wrist watch Ext.P-45 was effected on the third day of the effecting of recovery of a battery and a tyre from two persons of Ghumarwin at the instance of the accused. The memos of recovery of battery and tyre Exts. 15 PR and PO, respectively, are dated 4.10.1995. That means the wrist watch was recovered on 6.10.1995, but the memo of recovery Ext.PEE is dated 5.10.1995. 18. Further according to the prosecution the accused sold the wrist watch to Jia Lal on 20.6.1995, in the assumed name of Tapan Kumar, while going towards Hamirpur District by car No. CHK-7144. The number of the car is mentioned in the receipt Ext.PEE against which the accused allegedly received the price. However, witness Jia Lal has nowhere stated that the accused was traveling by a car or that he had any car with him. 19. In any case the wrist watch Ext.P-45 has not been proved to belong to the deceased beyond reasonable doubt. The prosecution produced the father and a qunty of the deceased, namely PW-1 Inder Singh and PW-3 Dalvinder kaur, respectively. They did not say that the wrist watch Ext. P-45 belonged to the deceased. It is only the employer of the deceased, namely Jaimal Singh PW-21 who has stated that it was of the deceased. He cannot be said to be a right person to identify the belongings of the deceased. In view of the above stated position, this circumstance cannot be said to have been proved beyond reasonable doubt. 20. Now comes 3rd circumstance. Three witnesses were examined by the prosecution to prove this circumstance. They are PW-26 S.I. Dev Raj, PW-9 Daya Nand and PW-10 Lekh Ram. PW-26 S.I. Dev Raj has stated that the accused was interrogated by him on 4.7.1995 and he made a disclosure 16 statement in the presence of witnesses Babu Lal and