IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No.395 of 2009. Date of decision:03.08.2010. Narinder Singh … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.N.K. Thakur, Advocate. For the Respondent: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The appellant has been convicted for offences under Section 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for six months. 2. The prosecution case is based on circumstantial evidence which, according to it, forms a complete chain of circumstances which leads to no other conclusion except that it was the appellant who is alone responsible for the death of the deceased Tirath 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Ram. It is accepted case of the parties that there are no eye witness to the appellant committing the offence. 3. The prosecution basis its case on the evidence of PW-1 Des Raj, elder brother of the deceased Tirath Ram, PW-2 Dharam Pal, PW-3 Balwant Singh son of the deceased, PW-4, Chanan Singh son of PW-1 Desh Raj and PW-5 Sucha Singh. The chain of circumstances is sought to be established starting with the evidence of these witnesses. PW-4 Chanan Singh states that on 21.10.2008 at around 3.20 P.M. he had received a phone call from the appellant who had asked him to call Tirath Ram as he wanted to talk to him. He says that he conveyed this information to Balwant Singh PW-3 who sent his father to answer the telephone call. The deceased talked to the accused on the phone for about sometime and left the shop. On the next day he learnt that his chacha (uncle) deceased Tirath Ram has died. In cross-examination he says that the person whose telephone call is answered has disclosed his name as `Billa’. He did not know from where the call had been made. 4. The next witness is PW-3 Balwant Singh son of the deceased. He states in his evidence that on 21.10.2008 PW-4 Chanan Singh had told him that Narinder Singh-appellant wanted to talk to his father. He accordingly told the deceased to attend the telephone call. He does not know what happened after that. He says that the deceased did not return home on the night 3 of 21.10.2008 and on 22.10.2008 the accused had come to the shop at around 8.15 A.M. and asked him about his father. He testifies that he should know as he has left the shop after the appellant had called him. He then goes on to say that the appellant-accused had made a call about 8.30 A.M. to PW-1 Des Raj and informed him that Tirath Ram was no longer alive. He then states in his cross-examination that he did not attend any phone call on 21.10.2008 and 22.10.2008 on the telephone in PW-3’s shop. He admits that he did not find it strange that his father did not return home on 21.10.2008 and he did not make any attempt to ascertain his whereabouts. 5. PW-1 Des Raj, brother of the deceased, says that they were carrying on business separately and narrates about the call etc. being received which information was conveyed to him by his son Chanan Singh PW-4. In other words his information regarding the receipt of call etc. is hearsay evidence. He then says that on 22.10.2008 the accused had come to the shop and Balwant Singh PW-3 had asked him about the whereabouts of his father, who, according to this witness, had gone out with him on 21.10.2008. No such disclosure etc. was made by him to the police. He then says that after sometime the appellant had again called them on the phone which call was received by Sucha Singh and on this he had told that Tirath Ram has died in jungle Kumar Chappari. His statement under Section 4 154 of the Code of Criminal Procedure Ex.PW-1/A was recorded and he expressed his suspicion that it was the accused Narinder Singh alias `Billa’ who was responsible for the murder. 6. Sucha Singh has been examined as PW-5. He states that on 21.10.2008, when he opened his shop and his cousin Balwant Singh PW-3 was sweeping the floor outside his shop at around 8.30 A.M. in the morning, appellant-accused had asked Balwant Singh about the whereabouts of his father. Thereafter he left the shop. At around 8.30 A.M. the accused had called on phone which call was attended to by his father after that he came out and sat on a bench and was seen on the verge of breaking into tears. He then says that thereafter again the appellant had made a telephone call and he was shocked when he picked up the phone and said that Tirath Ram had died. These circumstances are sought to be pressed to establish that the deceased and the appellant had gone out together on 21.10.2008. On the next morning he had returned alone and was making inquiries about the whereabouts of the deceased. 7. The case against the appellant is based entirely upon circumstantial evidence. According to the learned Sessions Judge the circumstances forming a complete chain are:- (a) the accused having made telephone calls to the deceased, whereupon the deceased had left the shop on 21.10.2008; 5 (b) Recovery of the SBBL Gun belonging to the accused from the jungle at Kumhar Chhapari which was lying at side of the deceased; (c) Details of the telephone bills showing calls made to PW-1 Des Raj; (d) Medical evidence Ex.PW-7/D being postmortem report, report of the FSL Laboratory and cartridge recovered from the spot purported to have fired from the shotgun owned by the accused; (e) Recovery of the blood stained shirt of the accused from his cattle shed in pursuance to a disclosure made by the accused and the human blood having been found by the Chemical Examiner on the shirt of accused by the Chemical Examiner. 8. Adverting to each circumstance, the learned Court holds that the petitioner is guilty of the offences as stated. 9. I have heard learned counsel for the parties and have gone through the record of the case. 10. Adverting to the first circumstance, the learned Court holds that the circumstance i.e. the accused having made telephone calls to the deceased whereupon he left the shop on 21.10.2008 stand proved from the record. For this purpose he relied upon the 6 evidence of PW-1 Desh Raj, PW-2 Dharam Pal, PW-3 Balwant Singh, PW-4 Chanan Singh, and PW-5 Sucha Singh. 11. From this evidence on record, the Court concludes that since the last telephonic call was made by the accused to the deceased Tirath Ram and subsequently on the next day they were informed that he was no more, it is but natural that it is only he who was responsible for the cause of his death. 12. At this juncture, evidence of PW-10 Smt.Sarwani Devi, may also be considered. She says that on the day of occurrence i.e. on 21.10.2008, she had gone to cut grass near a water tank. She had seen the deceased Tirath Ram going towards the jungle alone and he had nothing with him except ‘parna’ (piece of cloth used for covering the head) in his hand. He talked to this witness for sometime as to what she was doing and thereafter left for the jungle. She has been declared hostile. She denied the question put to her in cross-examination by the prosecution that after a period of about 15 minutes after the deceased had crossed her, she heard a gunshot. She also denied the suggestion that the accused used to frequently go for hunting. Another suggestion put to her is that she had seen the deceased carrying the gun with him to the jungle. The prosecution case which is sought to be proved from the evidence of this witness seems was that the deceased was carrying a gun with him and 15 minutes after he had met this witness near the water tank, she 7 had heard a gunshot. There is nothing in the cross- examination to suggest that the case was that both the appellant and the deceased were proceedings towards the jungle. In other words even if the statement of this witness in cross examination is accepted, it would be the deceased himself causing his own death by a gunshot wound. 13. The inference that the deceased was last seen with the accused-appellant cannot be accepted if the evidence of PW-10 Smt.Swarni Devi is considered in its totality. The other aspect to be considered is the evidence of PW-7 Dr.Ravinder Mohan who was posted at Zonal Hospital Una and has conducted the autopsy of the deceased. 14. PW-7, Dr.Ravinder Mohan, was posted at Zonal Hospital Una. He conducted the autopsy of the deceased. According to him, Tirath Ram died due to gun shot injuries resulting in excessive damage to blood vessels in the thigh leading to extensive hemorrhage. The time between death and postmortem was opined to be 24 to 48 hours. He proves the postmortem report Ex.PW- 7/D. In cross-examination he states that this is the first postmortem conducted by him relating to gun shot injury. He testifies that the plastic component of the cartridge may pierce the target from 1 to 5 meters. He then states that if a shot is fired from close range generally gun powder should be found on the fringes of the wound which is described as tattooing of the part. 8 He admits that the pellets enter the body prior to that of the wad and that he did not find any such pellets in the body of the deceased. He then says that monowad which is between the propellant and the pellets and this was found about 2 to 3 inches inside the wound, but he has not mentioned this fact in the postmortem report. He also says that he noticed some traces of gun powder on the hole of the trouser, but, there were no traces of gun powder on the opening of the wound. Though he says that there was no X-ray facility available in the mortuary yet he says that these facilities are available in the Zonal Hospital, Una, where the mortuary is itself a part of this Hospital. He again states that he could give the time between injury and death in the postmortem and it is only his opinion. There were some cuttings in this report. It is clear that he is making material/fundamental improvements in the postmortem report for the first time in Court by stating that he found monowad in the body of the deceased which fact has not been mentioned in the postmortem report. How he could state this fact from memory without recording this in the postmortem report, is not clear from the record and cannot be accepted as a fact having been established on the record. Whatever was observed by this witness while performing the postmortem ought to have been recorded in the postmortem report. He has not done that and the improvement in the testimony cannot be accepted as the 9 gospel truth. There is no exist wound in the body. The photographs only show a wound on the buttocks and nothing else. This is a very important factor which has been totally ignored by the Court. The postmortem report Ex.PW-7/D cannot be used as a circumstance against the appellant-accused as this establishes nothing to link him with causing the death of the deceased by a shotgun etc. The so called links when considered either individually or in continuity as a complete chain do not lead to the conclusion of the guilt of the appellant. 15. Adverting to the report of the Forensic Science Laboratory Ex.PW-17/C, which opines that the human blood was found on the gun, blood stained soil, stone and grass, shoes, underwear, pants, shirt, vest of the deceased Tirath Ram and on the shirt of the accused Narinder Singh, but no blood was detected on his jacket. This circumstance by itself is not sufficient to establish the guilt of the accused. 16. The report of the Forensic Science Laboratory Ex.PW-17/B states that the cartridge recovered was discharged from this firearm. In the circumstances, all that can be said is that what has been established is (a) that the firearm of the deceased was found near the body of the deceased; (b) empty cartridge was also said to have been fired from this gun, but whether this was the cartridge responsible for causing the death of the deceased, has not been established on the record. In 10 this event, one more aspect needs to be noticed and that is, that PW-17 SI/SHO Kapoor Chand states that he recovered blood stained shirt from the cow shed of the accused after disclosure statement was made in his presence. He says that the key of his cowshed was produced by the accused but then admits that in Ex.PW- 2/B which is the recovery memo, it is recorded that the recovery was effected after breaking open the locks. He also could not say as to how many doors and windows etc. the cowshed has. The recovery of the clothes cannot be used as a circumstance against the accused. 17. In order to establish the case on the basis of circumstantial evidence, there should not be the slightest doubt as to when and how the incident occurred. What requires to be noticed is that merely receiving and answering telephone call(s) is not by itself sufficient to establish that the accused was the last person seen with the deceased. This chain is broken by PW-10 Smt.Swarni Devi, who says that she saw the deceased walking alone towards the jungle. The suggestions put to her in cross-examination are not which point to the guilt of the accused. The medical evidence is ambivalent about what happened to the pellets discharged from the gun and the same is not established on the record. The recovery of the blood stained shirt of the accused is shrouded in mystery and cannot be accepted. 11 18. In order to establish the offence on the basis of complete chain of events, the links have to be established clearly, cogently and should not be disjointed. 19. In Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 SC 1622, the Court laying down the principle for convicting a person on the basis of the circumstantial evidence lays down the following principle:- “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 12 circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 . 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 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 13 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 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. 153. These five golden principles, if we may say so, constitute the panchsheel 14 of the proof of a case based on circumstantial evidence.” 20. This principle was reiterated by the Court in Subramaniam vs. State of Tamil Nadu and Another, (2009)14 SCC 415. 21. The circumstances noticed above do not fit into the mandatory requirement of law as laid down by the Supreme Court. I have already discussed the facts regarding recovery of the gun and cartridge, but since no pellets were recovered from the body of the deceased and medical evidence does not prove that the death of Tirath Ram occurred because of gun shot wounds. There is no exit wound in the body, no pellets or wad has been recovered from the body, the injury caused remains unexplained. The recovery of the so-called blood stained shirt cannot be relied upon. The circumstance of last seen of the deceased cannot be accepted as PW- 10 Smt.Swarni Devi is categoric in her statement that the deceased was alone when he was proceeding towards the jungle. Receiving and answering telephone calls is also not a circumstance which would implicate the accused. 22. I do not find that the prosecution in this case has been able to establish the case beyond reasonable doubt. This appeal is accordingly allowed. The judgment of the learned trial Court is quashed and set aside. The appellant is acquitted of the offences 15 charged with and is directed to be released from jail forthwith in case he is not required in any other offence. It is directed accordingly. August 3, 2010. (Dev Darshan Sud) (aks) Judge.