IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No.764 of 2002. Date of Decision:20.10.2011.. _______________________________________________ State of Himachal Pradesh. ……Appellant. Versus: Nazar Singh son of Sh.Kuldeep Singh resident of Shahpur Belon, P.O.Kiratpur Sahib, P.S. & Tehsil Anandpur Sahib, District Ropar, H.P. ….Respondent. Coram: Hon’ble Mr.Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the appellant: :Mr. R.K.Sharma, Sr.Addl. Advocate General with Mr.Rajinder Dogra, Addl. A.G. For Respondent: :Mr.N.K.Thakur, Advocate. Dev Darshan Sud, J(Oral). This appeal has been preferred by the State challenging the judgment of the learned Sessions Judge, Solan acquitting the respondent. He was charged for offences under Section 396 and 302 Indian Penal Code (hereinafter referred to as ‘I.P.C’.) for killing one Sh.Harjit Singh and stealing Maruti Van No. HP-01-0694. 2. The prosecution case in brief is that on 16.9.2000, Sh.M.P.Baam (PW21), who was the Station House Officer, Police Station, Nalagarh was investigating a case in a place called “Jogon”. He received a telephonic message from the Pradhan of the Gram Whether reporters of Local Papers may be allowed to see the judgment?.yes. 2 Panchayat that he found a dead body lying in the ‘Khad’ whereupon he along with ASI Kamal Kumar, H.C. Dev Raj, L.H.C. Ramesh Chand, Pradhan and Up-pradhan of Gram Panchayat rushed to the spot where they found a body in a highly decomposed state. They found the body tied with both its arms behind the back, legs and thighs. The mouth of the body was gagged with a ‘Parna’ (shoulder cloth). Investigation commenced and photographs of the body were taken. The clothes worn by the deceased were searched, some medicine (tablets) were found in the trouser pocket which were taken into possession vide Ext.PW4/B. Inquest report Ext.PW21/A was prepared whereafter the body was sent for post mortem and report Ext.PW21/C was conducted on the spot. 2. The prosecution case is that deceased Harjeet Singh owned an auto workshop at Nalagarh and he was also plying a taxi. The accused Nazar Singh and his accomplices Surinder Singh, Gurinder Kumar and Jai Inder Singh alias Makhan hired the taxi of the deceased from Nalagarh to Gullarwala. It was driven by the deceased. The case proceeds that the accused took the taxi to hotel “River View” at Nalagarh. Here, the accused along with his accomplices consumed liquor before having food. The taxi was thereafter taken towards Deoli Khad where the dead body was recovered. 3. The accomplices of the accused, namely, Surinder Singh and Jai Inder Singh were arrested on 22.3.2001 and Gurinder Kumar two days thereafter. Nazar Singh and Raj Kumar alias Charan Dass had absconded. On 24.3.2002 Surinder Singh made a disclosure statement confessing the commission of the crime and took the police to the spot where the body was lying and also got one silver ring recovered which 3 belonged to the deceased including one wrist watch which was hidden by him in his Godrej Almirah. Another disclosure statement was made by Gurinder Kumar pursuant to which one ‘Purse’ purportedly belonging to the deceased was recovered. The case further proceeds that both these persons also disclosed the fact of throwing away the driving license of the deceased on the highway somewhere in Ambala which license was never recovered. Jai Inder alias Makha another accomplice had made a statement under Section 27 of the Evidence Act stating in detail the manner in which the offence had been committed and the body disposed of. The chappals belonging to the accused were also recovered pursuant to Ext.PW6/A. The Court notices that the accomplices of the accused respondent Nazar Singh, namely, Surinder Singh, Gurinder Kumar and Jai Inder alias Makha were tried on the evidence as noticed above and by judgment dated 21.12.2001 they were acquitted by the learned trial Court. The accused, who was absconding, was later on arrested on 6.9.2001 by the Punjab police in connection with the F.I.R. No. 224/99 dated 23.12.1999 under Section 382 I.P.C. and F.I.R. No.72 of 1998 dated 13.5.1998 under Sections 379, 465, 467, 468 and 471 I.P.C. registered with Police Station, Ropar. After arrest, the accused made disclosure statement under Section 27 of the Evidence Act pursuant to which the watch is supposed to have been recovered as belonging to the accused vide Ext.PW8/C. A case under Sections 396 and 302 I.P.C. was registered and the accused was prosecuted for these offences. The prosecution examined 21 witnesses and one defence witness Uday Singh was examined by the accused. 4 4. Before the learned trial Court it was urged that the accused could be held guilty on the evidence as recorded in the case in which other accomplices were acquitted and that the recovery of the watch was itself a fact which un-erringly pointed to the guilt of the accused. Coupled with the fact that he was a absconder and was trying to shield himself from the police was conclusive of this fact. 5. Admittedly, the present case is based on circumstantial evidence .The principles applicable have been laid down by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 S.C. 1622, where the principles of proving a fact under Section 3 of the Evidence Act have been discussed as also the falsity of the explanation furnished by the accused under Section 313 Cr.P.C. The Court holds: “150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. 151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091: (AIR 1952 S.C. 343) This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what 5 Mahajan, J. has laid down in Hanumant's case (at pp. 345-46 of AIR) (supra) : "It is well to remember that in cases where the 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 and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: (AIR 1973 S.C.2622 ) where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (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. 6 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus : "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for." 155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain” (PP 1655 & 1656) 6. The Supreme Court reiterates that in order to sustain conviction the chain of incriminating circumstances must be so complete and incapable any explanation except the guilt of the accused. The evidence should not only be consistent with the guilty of the accused but also should be inconsistent with his innocence. (See: K.V. Chacko vs. State of Kerala, (2001)9 SCC 277, Nisar Ahmed vs. State of Bihar, (2001)9 SCC 736, Reddy Sampat Kumar vs. State of Andhra Pradesh, AIR 2005 SC 3478). Circumstances though creating a suspicion without conclusive evidence would be insufficient for basing conviction on the accused or anyone of them. (See: Pawan Kumar vs. State of Haryana, (2001)3 SCC 628). 7. We only need reiterate that in order to base conviction on circumstantial evidence each and every piece of incriminating circumstance must be clearly proved and established by reliable and cogent evidence to form a chain, so complete which leaves no other conclusion except that of the guilt of the accused. (See: Anil Kumar 7 Singh vs. State of Bihar (2003)9 SCC 67, State of Rajasthan vs. Raja Ram (2003)8 SCC 180, State of Haryana vs. Jagbir Singh, (2003)11 SCC 261, Usman Mian vs. State of Bihar (2004)10 SCC 786). We need not multiply precedent any further. 8. Adverting to the present case, the circumstance which has been urged against the accused is the recovery of the ring Ext.P2, chappals Ext.P6, shirt Ext.P3, pant Ext.P4,underwear Ext.P5 and watch Ext.P1. PW1 Jagjit Singh father of the deceased states that the clothes and chappals were identified by PW2 Smt. Meenu wife of the deceased and the watch (Ext.P1) was identified before Sh. Bagga Ram, Naib Tehsildar as also silver ring which belonged to the deceased. This identification was made on 23.10.2001. PW2 Meenu states in her evidence that the clothes Ext.P3 to Ext.P5 belonged to her husband which he wore on the day of the occurrence. She also identified chappals and silver ring of her husband. The learned court notes that these recoveries were made from the other accused. In cross examination, this witness could not recollect as to when the watch and chappals etc. were shown to her. PW6 Joginder Singh, Scooter Mechanic, who had visited the spot where the dead body was lying and chappals at a nearby place were taken into possession vide memo Ext. PW6/A. According to him, these were identified by PW2 Smt. Meenu Devi on 22.9.2000 on the spot. In cross examination he admits that chappals (Ext.P6) are easily available in the market. 9. We now advert to the most important evidence i.e. PW8 Surgen Singh who is a witness to the disclosure statement. He had visited the police station in connection with his personal dispute and stated that in his presence the accused had narrated the entire facts of 8 the incident to the police. According to this witness the accused had admitted to the killing of the deceased but we ignore this part of the statement which was made in the police custody. Ext. PW8/A is the memo vide which the watch is supposed to have been recovered. This memo does not show as to who is the manufacturer of the watch etc. He then says that the watch was of ‘New Star’ make but when the police had gone to the house of the accused, it was open and no lock had been placed on any part of the building. However, he admits the watch in the nature of Ext.P1 was commonly available in the market. 10. PW16 Bagga Ram, Naib Tehsildar stated that the identification was conducted when one of his Peon of the Tehsil had gone to the bazaar to bring 4/5 watches made by HMT Company and ‘New Star’ but he did not mention this fact in the certificate Ext.PW16/A. He did not obtain the signatures of either PW2 Meenu or PW1 Jagjeet Singh on the memo nor he mentioned the serial number of the watch during the identification proceeding. He then states that he did not record the statement of the identifiers before the identification. He did not inquire from them whether they could identify the watch or not. He has not mentioned in this report regarding sealing of the watch etc. This is the circumstance which is pressed against the accused for securing his conviction. 11. Adverting to the principles noticed by us above, what we find is that though one lone circumstance can itself be sufficient for securing conviction but in this case what we find is that not only is the recovery of the watch doubtful but the fact that this kind of watch can be purchased anywhere and there is no peculiar identifying mark on the watch which would make it the exclusive property of the deceased. 9 We do not find that this evidence is sufficient to sustain the conviction of the accused. 12. In these circumstances, we find no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondent shall stand discharged. (R.B.Misra) Judge. (Dev Darshan Sud), Judge. October 20, 2011(R)