IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal Nos.294 of 2007 and 437 of 2007 Judgment Reserved on: 23.08.2011 Date of decision: 30.12.2011 1. Cr.Appeal No.294 of 2007. Ran Bahadur son of Shri Mansukh Dass, resident of village Hamte PO Kafnu, Tehsil Nichar, District Kinnaur, H.P. … …Appellant Versus State of H.P. … …Respondent 2. Cr.Appeal No.437 of 2007. Prem Bahadur S/o Sh.Lal Singh, R/o Vill.Khursani, PO Tambass, Distt.Palpa, State Anchal Lumani (Nepal) at present C/o Ajay Kumar, R/o Vill.Homtey. … …Appellant Versus State of H.P. … …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.M.S. Guleria, Advocate in Cr.Appeal No.294 of 2007 and Mr.Dharamir Sharma, Advocate, in Cr.Appeal No.437 of 2007. For the Respondent: Mr.R.K. Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. Dev Darshan Sud,J. Both these appeals are being disposed by this judgment as they arise out of the same judgment of the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 learned Sessions Judge in Session Trial No.17 of 2006, decided on 23rd/24th August, 2007. 2. The appellants herein were convicted by the learned Court below for offences under Section 302, 201 read with Section 34 IPC and have been sentenced to undergo rigorous imprisonment for life and fine of Rs.5000/- each under Section 302 IPC, in default of payment of fine to undergo further simple imprisonment for six months, rigorous imprisonment for two years and fine of Rs.1000/- each for offences under Section 201 IPC, in default of payment of fine to undergo simple imprisonment for three months. 3. Prosecution case against both the accused, appellants herein, is that on 21.3.2006 Hira Bagh PW-11 resident of village Homtey in Tehsil Nichar reported at Police Post, Kafnu that his mother-in-law Smt.Neelam Pati, was living alone in the `Dogri’ (hutment) where she had kept one cow. He had been sending one person from his house to feed and milk the cow. On 21.3.2006 his daughter Mayum Kumari had gone to visit the deceased when she found that she was missing and there was a pool of blood in the bed of Neelam Pati. He immediately informed the Police Post at Kafnu and HC Chhering Dorje, Incharge, Police Post alongwith some police personnel and villagers rushed to the `Dogri’(hutment). He did not find her in the room, her bed was in one corner of the room and there were blood stains inside the Dogri and the varandah. He 3 immediately informed Police Station, Bhabanagar. On this information ASI Chita Ram, PW-17, alongwith police party rushed to the spot and found the dead body of Neelam Pati buried in the ground. Illaqua Magistrate was informed; the place dug up and body of Neelam Pati, who was aged about 83-84 years, was exhumed. The statement of Uttam Singh PW-1, brother of the deceased, was recorded under Section 154 Cr.P.C. He stated that he had retired from the Animal Husbandry Department in 1994. Neelam Pati, who was his sister, was deaf and dumb from birth. She was married with one Ganga Ram and had two daughters. The younger daughter Padam Devi was married to Hira Bagh, who was living with her in the same house. She used to stay in the hutment alongwith domestic animals. Somebody had murdered her on 20.3.2006 and she had been buried at a distance of about 200 meters from the `Dogri’ (hutment). There was blood on the bed and a deep wound on the left temporal region of the brain which was a clear indication that she was murdered by some unknown assailants. In order to wipeout the evidence of the crime she had been buried. 4. During the course of investigation, it was found that one Panna Lal, who was a juvenile, was also an active participant in the crime. After effecting recoveries etc., the case was sent for trial. The prosecution examined 18 witnesses. The learned Court convicted the appellants on the basis of circumstantial 4 evidence produced on the record. To arrive at this conclusion, the learned Court notes six circumstances; namely; (a) statement of the accused under Section 27 of the Evidence Act and recoveries effected in pursuance to the statement, (b) identification of the clothes which were recovered during the investigation; (c) conduct of the accused persons (d) motive for the crime (e) Medico Legal Evidence and (f) report of the Chemical Examiner. 5. We now advert to the evidence on record. PW-1 Uttam Singh, brother of the deceased, states that he was called on 21.3.2006 by the daughter of Shri Hirabagh and was informed that she was not present in the hutment. He went there and saw that there were blood stains in the verandah and her Mala (chain) was lying at a distance of 10 feet from the hutment. He then found a coat/jacket of the deceased at a distance of 100 feet from the hutment in the fields and noticed that there were stains of blood on the soil, but he did not touch them. He searched the deceased throughout the day, but he could not find her and then he reported the matter to the Police Post in the evening at around 7.00 P.M. He again searched her on the next day alongwith other villagers and the police and found some fresh dug soil near the hutment (Dogri) of Bazar Ram. During this period, Tehsildar and SDM also reached the spot and they ordered the ground to be dug up where the soil was loose and freshly dug up and found some slates 5 underneath which the body of Neelam Pati was found buried. There were injuries on her head. The police took into possession the dead body of Neelam Pati and sent it to Nichar for postmortem. He proved his statement under Section 154 Cr.P.C. Ex.PW-1/A. Inquest reports Ex.PW-1/B and Ex.PW-1/C, which were prepared by the police, were signed by him. The dead body was taken into possession by the police vide memo Ex.PW- 1/D. Samples of soil from the place where the dead body was found were also taken into possession. One Shovel and Kassi (implements for digging) were also taken into possession vide Ex.PW-1/F. The jacket/koti, lying in the field, which was stained with blood was taken into possession vide Ex.PW-1/H. He states that the deceased had two daughters Padma Mani, who was married to one of the accused Ran Bahadur and Padam Devi who was married to Hirabagh, PW-11. The deceased had given one piece of land to Ran Bahadur and she was living all alone in the `Dogri’ (hutment). Her daughter and son-in-law were living separately in the village. They used to provide her meals. He identified the cap Ex.P-1, sticks Ex.P-3 to Ex.P-5, Belcha(shovel) Ex.P-6, Kassi Ex.P-7, soil Ex.P-9 and Koti (woolen pullover) Ex.P-10 which were taken into possession by the police. In his cross-examination he admits that two days i.e. 21st and 22nd March, 2006, nobody had a clue as to who killed Neelam Pati; Ran Bahadur had two children and they were in Government service and are well off. 6 6. PW-2 Hira Mahant, the brother of the deceased, has infact stated on lines similar to those of what had been stated by PW-1 Uttam Singh. He says that the deceased was deaf and dumb from childhood and was married to Ganga Pati from whom he had two daughters, Padam Mani and Padam Devi. He then states that about two years ago the deceased had told him that she wanted to give her land to the son of Padam Devi and Hirabagh, PW-11, as they were living with her, but the Tehsildar had refused to register any such document because of the fact that she was deaf and dumb. He states that the deceased had gifted one piece of land to Ran Bahadur accused, but he wanted half share and that was the reason why he killed her. He says that she had given/gifted a small piece of land to Ran Bahadur and the rest was to be given/gifted to Hirabagh PW-11 as he was maintaining her. He states that most of the land was in possession of Padam Devi who had been cultivating it. Padam Devi wanted that the land should be entered in her name. 7. PW-3 Bhagwan Devi was the Ward Member of Gram Panchayat, who states that Hirabagh was staying with deceased as “Ghar Jawain” (he was residing with her). She could not state as to who was the person who committed her murder. 8. PW-4 Satya Prakash is nephew of the deceased. When he came to know that she was missing, he had searched about her and according to him, the body of 7 the deceased was recovered on 22.3.2006 from dug up from the pit. He says that one cap of co-accused Panna Lal, who was juvenile, was found near the ice pack, point which was identified by him and was taken into possession by the police. He remained associating with the investigation etc. He also states about the recovery of one pant, dathu (head cloth worn by ladies), one T-shirt and one cap from near the verandah in the presence of Raj Kumar and other villagers. These clothes were smeared with blood. He then says that the accused Ran Bahadur disclosed to the police and took them to the place where he had hidden a gunny bag which was recovered and was found stained with blood. He told the police that the dead body was carried by him in this gunny bag. He states that accused Ran Bahadur told the police about a bottle of liquor lying in his hutment which was consumed by them and that while drinking with Prem Bahadur they hatched a conspiracy to kill the deceased. He also appeared as a witness in the Juvenile Court. His statement was proved on record as Ex.DA. 9. PW-5 Raj Kumar was associated with the investigation and stated that Ran Bahadur accused had confessed before the police that he murdered Neelam Pati and the gunny bag in which he had carried her body was hidden in a nullah behind the tree. 10. PW-6 Ram Chander was associated with the investigation when accused Prem Bahadur had disclosed 8 about a pant, duckback, jacket and one torch and one gunny bag being used by him for the commission of the crime and his statement Ex.PW-6/A was recorded. To similar effect is the statement of accused Panna Lal Ex.PW-6/B and Ran Bahadur Ex.PW-6/C. To similar effect is the statement of PW-7 Ajay Kumar. According to PW-8 Dr.S.S. Negi, who conducted the postmortem of Neelam Pati, she had died due to head injury leading to hemorrhage and shock. He ruled out any attempt of sexual molestation and opined that this injury could be caused with the sticks Ex.P-3 and P-4, but he admitted that some parts of sticks were smooth and other parts were jutting out. 11. PW-11 Hirabagh, son-in-law of the deceased, states that she was residing alone in the hutment. On 21.3.2006, his daughter Mayum Kumari had gone to visit the deceased, to milk the cow and to feed the cattle, but found her missing and blood spots in the room, therefore, she immediately rushed to him and told him about these facts. He says that when he visited the `Dogri’, he saw sticks lying there out of which one was broken. He made a search for the deceased and ultimately at 6.00 P.M. vide Ex.PW-10/A they lodged a report with Police Post, Kafnu. They were advised by the police to continue the search in the morning. Next day in the morning the search resumed and he found some freshly dug loose soil near the hutment of one Bazar Ram. The police, SDM and Tehsildar came to the spot 9 and directed that the spot be dug up where they found the body of Neelam Pati who had injuries in the head. He then states about the recoveries of pant, T-shirt and cap of Ran Bahadur, Torch and gunny bag of Prem Bahadur. According to him, the gunny bag was stained with blood and so were the duck back and the jacket worn by him. He then states about the recoveries effected at the instances of Panna Lal. His cross- examination assumes importance because that would be relevant for the purposes of the motive attributed to the accused Ran Bahadur who was also son-in-law of the deceased. He states that he has two sons Suresh Kumar and Sunil Kumar who had accompanied the deceased, his mother-in-law, to the office of the Tehsildar alongwith one Heeraman PW-2. The deceased had made an application before the Tehsildar expressing her desire of giving her entire land to his grandsons which he again corrected to say that he had only gone to inquire whether she can give her entire landed property to her grand-sons. No application was filed by her. According to him, the Tehsildar had refused to entertain any such request as the deceased was deaf and dumb and was thus incapable of transferring her property. His family members knew about this fact. We note this because one of the important circumstance urged against the accused for murdering the deceased was that he wanted the property to be transferred in their name. 10 12. We now advert to the circumstances, urged before the learned Court below, as being relevant and which according to the prosecution establishes a complete link/chain which leaves no doubt except to prove the unmistakably fact that it was the appellants who were guilty of committing the crime. While looking into these circumstances we need not reiterate the established principles but it is necessary to recall them. 13. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme Court lays down in no unmistakable terms that in order to sustain a conviction on circumstantial evidence it is necessary for the prosecution to establish and prove that:- “1. The circumstances from which the conclusions of guilt is to be drawn should be fully established 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”. 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. 11 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. This principle was later on reaffirmed in a number of cases, but we need only refer to the judgment in Vithal Tukaram More and Others vs. State of Maharashtra, (2002)7 SCC 20. We also reiterate that the Supreme Court has been at pains to point out that in order to sustain a conviction on the basis of circumstantial evidence the circumstances forming the chain must be complete and incapable of explanation of any other hypothesis than that which is consistent and points to the guilt of the accused. The circumstantial evidence so proved on the record should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. (See: K.V. Chacko vs. State of Kerala, (2001)9 SCC 277, Nisan Ahmed vs. State of Bihar, (2001)9 SCC 736). 15. Having considered all these circumstances, we now proceed to consider the basis of what has been stated by the learned Court below as a chain so complete which leaves no other doubt in the mind of the 12 Court that it is the appellants who are guilty. The Court relies upon the statements under Section 27 of the Evidence Act of the accused Ran Bahadur, Ex.PW-6/C and Prem Bahadur Ex.PW-6/A. The statement made by Panna Lal Ex.PW-5/A has been excluded as he is a minor. According to the prosecution, vide Ex.PW-6/C, the accused Ran Bahadur has stated that he has kept one `Dhatu’ (head cloth worn by women) covered with blood, pant, cap, T.Shirt, also having blood stains, in his house where he has hidden them and he knows where they are. This is witnessed by two witnesses Ram Chandar and Ajay Kumar, PW-6 and PW-7. To similar effect is the statements made by the other witnesses to the recoveries, although, these witnesses stated that all these proceedings have taken place in Police Station and there a number of people were standing outside. We advert to Ex.PW-4/B which is memo vide which the clothes; Dhatu, pant, T-Shirt and cap were taken into possession. These were sent to the Forensic Science Laboratory for examination and the report of the Laboratory Ex.PW-18/M and Ex.PW-18/N, where inter alia no semen or blood has been found on the shawl, pant, T- shirt, cap of Ran Bahadur and pant of Prem Bahadur as also the gunny bag. We do not state as to what the report says about the recovery effected from Panna Lal. 16. The learned Court, by invoking Section 27 of the Evidence Act, concludes that since these recoveries are made at the instance of the accused and blood of 13 Neelam Pati was found on the cot and jersey of the deceased, blood stains were found on the shoes of Prem Bahadur and the clothes of Panna Lal, the unerring finger of accusation is pointed towards the accused only. What the learned Court below ignores is that (a) there was no blood found on any of the clothes etc. of accused i.e. Ran Bahadur and the so called blood on the shoes of second accused Prem Bahadur was found to be insufficient for any analysis. (b) The mere fact that these clothes have been recovered is by itself not sufficient. The learned Court has elaborated this circumstance as being one of the unerring factors to base its conviction. The second circumstance, under this head urged is the identification of the clothes being worn by the accused and that they were stained with blood. The Court brushed aside the fact that test was carried out after about three months by the Forensic Science Laboratory and in these circumstances no inference can be drawn that the accused are in fact guilty. This reason to say the least, does not commend itself for our acceptance. Merely because there were some blood stains on the clothes which the witnesses saw was by itself not a factor which would lead to the inference that it was the blood of the victim or for that matter even human blood. We cannot forget that these people belong to the agriculture community where their clothes are usually covered with mud and soil and in these circumstances, identification of the human 14 blood was mere visual inspection and it becomes difficult to arrive at a definite conclusion as to the identification of the blood. 17. The second circumstance urged by the prosecution is that the accused Ran Bahadur did not join in the search of the deceased, coupled with the fact that he had a motive to commit a crime, which was to have inherited the entire property of the deceased or to have taken it in her life time by gift intervivos. The Court notices that the deceased was being looked after by Padam Devi and Hirabagh PW-11, her daughter and son-in-law respectively, and had only given a small piece of land to Ran Bahadur. The case is that Ran Bahadur wanted half share of the property which according to the prosecution would have gone to his wife who is also the daughter of the deceased. We find it a bit difficult to accept this statement. PW-2 Hira Mahant and PW-3 Bhagwan Devi have stated that the entire landed property is to go to PW-11 Hirabagh who was `Ghar Jawain’ (resident son-in-law) and she had no money and ornaments. It is also in evidence that his sons had accompanied Neelam Pati deceased alongwith PW- 2 Hira Mahant to the Tehsildar where she expressed her desire to gift her entire property to the children of PW-1 Hirabagh. According to the learned Judge, this was a credible motive for killing her as no valuable articles were stolen from the house. This is indeed strange link in the chain which is being put in the 15 evidence. In fact there is not one shred of evidence on record to suggest that at any point of time the accused had either made a demand or expressed his resentment at the fact that his wife had not been given any property by the deceased. On the other aspect urged that the Chemical Examiner’s report and Medico Legal Reports themselves form a complete chain to convict the accused, we find, in fact, that no chain leave alone a complete chain pointing unerringly to the guilt of the accused, has been established on the record of the case. We find that the case having been built upon conjectures and the two accused sentenced to undergo imprisonment for an incident with which they have not been connected at all. 18. On Section 27 of the Evidence Act, we need to say that the principles applicable are by now well established. In Anter Singh vs. State of Rajasthan, (2004)10 SCC 657, considering the ambit of Section 27 aforesaid and its requirements, the Supreme Court holds:- “14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of 16 a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohammed Inayatullah v. The State of Maharashtra (1976)1 SCC 828. 15. At one time it was held that the expression "fact discovered" in the section is 17 restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object