1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.282 of 2002. Judgment Reserved on: 10.08.2011 Date of decision: 30.12.2011 State of H.P. … …Appellant Versus Smt.Kusum … …Respondent Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General. For the Respondents: M/s.Neeraj Sharma, G.S.Chandel, I.S. Chandel and S.S.Rathore, Advocates. Dev Darshan Sud,J. The State challenges the judgment passed by the learned Sessions Judge, Kullu, acquitting the respondent who was charged for offences under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the `IPC’) alongwith her son Naresh who was minor at the relevant time and was tried by the Children Court. 2. Shorn of all unnecessary details, not necessary for the adjudication of this case, the prosecution case in brief is that Kusum respondent had 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 abandoned the company of her husband and was in relationship with the deceased Harbhajan Singh aged about 65 years whose murder she is supposed to have committed. Harbhajan Singh had two brothers PW-1 Mohinder Singh and PW-2 Bhupinder Singh. He was residing with his brother Mohinder Singh at Rajauri Garden, New Delhi. The body of Harbhajan Singh was recovered from room No.101 of Holiday Guest House, Manikaran on 21.10.1999, where the deceased alongwith the accused is alleged to have checked in on 18.10.1999. The body was recovered after suspicion of the hotel owner PW-13 Vinod Kumar and Manager PW-14 Amar Singh who was aroused by the fact that the deceased was supposed to have checked out on 20.9.1999, but the room was found to be locked whereafter, they peeped through the ventilator to see if anything was amiss and the room was opened by a duplicate key. The body of the deceased was found lying in the bathroom with blood stains. 3. Two circumstances are urged against the accused; namely, (a) that she had a motive to commit murder so that she would grab the property of Harbhajan Singh which property was owned by him independently and was situated in Chitranjan Park, New Delhi and for which according to the prosecution he was negotiating a sale etc. (b) that she was last seen in the company of the deceased, when accompanied by her son Naresh they 3 came together to Manali, visited Manikaran and thereafter stayed in the hotel. 4. Adverting to the first circumstance, that the motive was to grab the property of the deceased, the prosecution primarily relied upon the evidence of PW-25 Rishi Pal who was the property agent negotiating on behalf of deceased Harbhajan Singh. He stated in his evidence that he is a property agent and has been working as such since 1994 in Sangam Vihar, New Delhi. He states that about two years prior to the occurrence, one Sikh gentleman accompanied by lady, whom he identified as the accused, came to his shop/office approached him with the request that the Sikh gentleman wanted to sell the property which consisted of first floor of a Kothi in Chitranjan Park, Pocket-40, New Delhi. The reason disclosed for selling was that it was tenanted and was of no use to the Sikh gentleman. This Sikh gentleman handed over to him the photocopy of the property which, according to him, looked genuine and price of the property was to be settled after tenant had been evicted. Thereafter he went to the Kothi to meet the tenant. One Geeta Kukreja, who was residing there with her husband, insisted that the matter be discussed in the presence of her husband whom he met after a couple of visits. He talked to him with respect to the settlement etc. and this gentleman informed him that he will settle the matter with the owner. He then says that the tenant informed him that 4 the Sikh gentleman had not met him for about 1½ months, so much so he has not been collecting rent due. Thereafter, he went to the house of “Sardarji” and found that his house was locked since the last about 1½ months and his whereabouts were not known. He handed over his visiting card to a shopkeeper in the neighbourhood who was running a bakery shop asking him to hand it over to Sardarji when he comes back. After 2/3 days, the police from Rajouri Garden and “brother- in-law of Sardarji” Harbans Singh came to him and showed photographs of a woman and wanted her address. The police then came to Gurgaon. He took them to Zebar Mehal and pointed out the place where he had met the accused. He could do this because earlier when the accused and “Sardarji” had met him for the first time with the photocopy of the title deeds, the accused had telephoned him after about 20-25 days from Gurgaon asking him to inspect the original documents at the “Kothi”. He then had proceeded to the address given by her which was Zebar Mehal in Gurgaon. He says that she had taken him out to a restaurant and had shown the original documents to her. He then says that one Hari Om, who was dealing with Manglasutras etc., was the contact address of the accused which was disclosed to him by the accused herself. On the day when he had accompanied the police, they were looking for Hari Om whose address was disclosed to them by a shopkeeper near Zebar Mehal and they went to the house of this 5 person. They found the accused in the company of her relative in the house. He says that photo Ex.PW-18/A might be of that Sikh gentleman. He could not identify this Sikh gentleman because at the time when he had met him, he was wearing a turban. At this stage, he was declared hostile as he resiled from his earlier statement. In cross-examination by the defence, he stated that he had only talked to “Sardarji” who had informed him that the accused would show him the original documents. 5. PW-1 Mahinder Singh inter alia states that Harbhajan Singh deceased had gone out of Delhi on 15.10.1999, as he was told by his younger brother PW-2 Bhopinder Singh, and he never returned thereafter. He admits that after the death of Harbhajan Singh it is his brothers and sisters who would inherit the property as the heirs of the deceased. PW-2 Bhopinder Singh, with whom the deceased was residing, states that the deceased was not married. On 15.10.1999 he had gone out of Delhi informing him that he would be back out within 3-4 days. He says that the accused, whom he identified in the Court, used to visit his brother for the last more than two years alongwith one boy and sometimes the boy was visiting him all alone. He disclosed the name of that boy to be Naresh Kumar and that of the lady to be Kusum. He says that when the lady was arrested, she had made a confession in his presence, the presence of his brother and Jeeja (brother-in-law) that she was at 6 fault. But in cross-examination, he says that he did not like his brother carrying on a relationship with the accused as she was taking, “money from his brother” and the deceased also helped her to establish her business. He then admits that the deceased wanted to marry the accused, but he stated that she did not have a good character. This is the evidence on the motive of the accused to have killed the deceased. 6. Adverting to this circumstance, what we find is that it cannot be treated as a chain in the circumstance leading to the murder nor can it be treated as a fact motivating the accused to commit the crime. The reason is obvious. She would not gain the property after his death as she was not married to him. The only persons to benefit from the death of Harbhajan Singh were his brothers and sisters who would be treated as Class-1 heirs under the law and obviously the accused did not fall in that category. No will, gift, or other document was proved on the record which in any manner created an interest to the property in favour of the accused or her son that is to say there was no transfer intervivos either during his life time or in the nature of testamentary disposition. We concur with the reasoning of the learned Sessions Judge that if it was anyone who would benefit from the death of Harbhajan Singh these were his heirs in the line of succession, according to law or any other person in 7 whose favour he had made a transfer of an interest either during his life time or on his death. 7. The second circumstance urged against the accused is that she was last seen with the deceased. In order to prove this, the prosecution relied upon Ex.PW-13/C entry in the guest register Ex.PA which according to the prosecution contained writing in the hand of the deceased himself. 8. Adverting to the evidence of Amar Singh, PW- 14, waiter-cum-in-charge, Holiday Guest House, Manikaran, according to him, one Sikh gentleman and a lady accompanied by a boy came to the hotel on 18.10.1999 and booked room No.101 at a rent of Rs.100/- per day. He says that he cannot read English and probably entry in red circle marked Q-1 was made by the Sikh gentleman and the lady stayed in the room but the boy did not stay there. That Sikh was aged about 60-65 years. On the 19th evening, the Sikh gentleman paid Rs.200/- as room charges and informed him that they would be leaving in the early morning of 20th October, 1999, but did not do so. On that day he found the room locked from outside. On the 19th October the boy who had accompanied them on the 18th came to the hotel and inquired about the Sikh gentleman and the lady. On his asking, the boy disclosed that the lady was his aunt. On 20th evening, PW-13 Vinod Padha, owner of the hotel, came there and on his inquiry, this witness informed him that only one room was occupied. He again visited 8 the place on 21st morning and found the room locked from outside. Therefore, he asked this witness to look inside the room to find out as to whether there was any luggage etc. of the occupant and also to ascertain as to whether the occupant had left the place without paying the rent etc. He peeped through the ventilator and saw one bag and attaché case lying inside the room. He informed this fact to PW-13 Vinod Padha. Thereafter, the room was opened with the duplicate key. The belongings of the occupant were removed and the room was cleaned. They found the pieces of `biris’ thrown inside the room. The toilet which was attached with the room was bolted from outside and when he opened it; he saw the dead body of the Sikh gentleman lying with the back on the floor of the bathroom. Immediately he and Vinod Padha rushed to Police Post, Manikaran and lodged a report there. In cross- examination he says that he can write numericals from 1 to 100 and does not know how to write the month of October in figures. Adverting to the register Ex.PA, he says that column Nos.3 and 4 of the register deal with arrival and departure of the occupants. He says that entries of two different occupants were recorded against room No.101 in the register on 18.10.1999, but he then adds that the second entry may be by mistake. When his attention was invited to the second entry relating to some person coming from Hyderabad, he could not answer. 9 9. We now turn to the evidence of PW-13 Vinod Kumar who states about the room being locked, the lock being opened etc. at a later point of time. He admits that the register Ex.PW-13/C is of his hotel. At this juncture, we also consider the evidence of PW-15 Devinder Singh son of Nanak Singh, resident of Manikaran. He is a tenant of Vinod Kumar PW-13 and is running a shop in a triple storeyed building owned by Vinod Kumar. According to him on 18.10.1999, a Sikh gentleman accompanied by a lady came to his shop and inquired about the arrival/departure of a bus going to Amritsar. He told them that the bus would go at 4.30 A.M. To another query about the arrival of bus from Anandpur Sahib, he told this couple that it reaches there at around 12.00/12.30 P.M. The Sikh gentleman had stayed in the guest house. This is the circumstance which is sought to be established to prove the fact of last seen with the deceased by the accused. The prosecution relied upon another circumstance and that is that the entry Ex.PW-13/C in the register Ex.PA on 18.10.1999 was made in the hand writing of the deceased which was purportedly proved by PW-28 Dr.R.Sharma, Examiner of Questioned Documents by his report Ex.PW- 28/D. The comparison was conducted by him on a letter Ex.PW-2/A addressed by the deceased to the Assistant Collector which according to the prosecution was taken into possession from PW-2 Bhopinder Singh vide memo Ex.PW-2/B. Adverting to this letter, the learned 10 Sessions Judge holds that since the letter was addressed to the Assistant Collector, there was no explanation as to how it had found its way to PW-2 Bhopinder Singh and that it should have been produced or recovered from the custody of the Assistant Collector himself. The learned Court also holds that in the register Ex.PW-13/C, two entries have been made against room No.101. The first by H.S. Rekhi who disclosed his address as J-5/151, Rajauri Garden, New Delhi showing the date of arrival as 18.10.1999, time 12.00 noon and the date of departure as 19.10.1999. Another entry against this room is made on the same date without showing any date of departure and only showing time as 12.00 noon. This entry is made in the name of L.Michael, Hyderabad. Against both these entries, the number of occupants in the room is shown as two. We find that there is no explanation of any witness as to who this L.Michael is and as to how he had occupied same room in which the deceased was staying in the same day. This creates a very serious doubt in our mind. 10. Adverting to the identification parade conducted, the accused is purported to have been identified. We find from the evidence of PW-23 Shri A.C. Thalwal, who at that time was posted as Chief Judicial Magistrate, Lahaul and Spiti at Kullu, conducted the identification parade on 14.12.1999. In cross-examination he states that he did not record the 11 statement of Amar Singh PW-14 (who identified the accused) although he was orally examined by him and that he did not mention in the report that Amar Singh PW-14 was orally examined. Before conducting the parade, Amar Singh PW-14 was produced before him only half an hour before. He did not record the names of 5/6 women produced in the Court who were also part of the group in which the accused was to be mingled for identification and did not issue any certificate that these six women were earlier known to Amar Singh and he could not even say that from where he had been called. 11. Adverting to the situation, we find it strange that one room should have been allotted in the name of two persons on the same day at the same time, and as to who this person Michael is, has remained obscure. The entry in the register has also not been proved in accordance with law as there is serious doubt about the authenticity of the letter produced Ex.PW-2/B from the custody of PW-2 Bhopinder Singh and not from the custody of the Assistant Collector to whom it was addressed by the deceased. On the identification parade, we do find it bit strange that the names of the other ladies etc. have not been recorded and that there is a possibility that the identifier must have seen the accused prior to the identification parade. The law on this point is well settled. We find in the circumstances that the test identification parade has been conducted in a most casual manner and cannot form 12 the sole basis of conviction or as a link in the chain of evidence urged against the accused. 12. In Dana Yadav alias Dahu & Others vs. State of Bihar, (2002)7 SCC 295, the Supreme Court holds that the identification parade held under Section 9 of the Evidence Act is a relevant piece of evidence where though it is to be treated as primary evidence, it cannot be treated as substantive piece of evidence and can be used only to corroborate the identification of the accused in the Court. This principle finds a reiteration in J.D. Suryarao vs. State of Maharashtra, (2001)10 SCC 109. Effectiveness depends upon the precaution taken against the identifying witnesses having an opportunity to see the accused before being paraded (See: Hasib vs. The State of Bihar, AIR 1972 SC 283). But, we need not delve too much on this issue for the reasons we find, there is no explanation on the record as to how two entries were made in Ex.PW-13/C against the same room on the same date at the same time. 13. This is a case of circumstantial evidence. The law on the point is well settled. The fundamental law on the point has been enunciated by the Supreme Court in Sharad Birdhichand Sharda vs. State of Maharashtra, AIR 1984 SC 1622, holding:- “152. … … … … … … … … (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 13 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 SC 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 not 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.” (p-1656) 14. The Supreme Court reiterates that in order to sustain conviction the incriminating circumstances must 14 be so complete and incapable explanation exist the guilt of the accused. The evidence should not only be consistent with the guilt 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). 15. We only need to 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 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. 16. Adverting to the facts and circumstances of the case, we do not find that the prosecution has been able to establish the case by circumstantial evidence or otherwise against the accused. We, therefore, find no merit in this appeal which is accordingly dismissed. 15 Bail bonds furnished by the respondent shall stand discharged. (R.B. Misra) Judge December 30, 2011. (Dev Darshan Sud) (aks) Judge