Devinder Singh vs State of Himachal Pradesh

Bhawani Singh, J.—This appeal arises out of the judgment of Additional Sessions Judge (II), Kangra (as Additional Sessions Judge for Shimla Sessions Division) in Sessions Case No. 21 of 1986 under Sections 302/201/404 of the Indian Penal Code initiated vide F.I.R. No. 4 of 1986. By this judgment, the trial court convicted the Appellant u/s 302/201 of the Indian Penal Code and sentenced him to imprisonment for life and also to pay a fine of Rs. 1,000/-and in default of the payment of fine, to undergo further rigorous imprisonment for a period of six months. No separate punishment has been awarded u/s 201 of the Indian Penal Code being part of the principal offence u/s 302 of the Indian Penal Code. The Appellant has, however, been acquitted of the charge u/s 404 of the Indian Penal Code. The Appellant has a grievance against his conviction and sentence and, therefore, he assails the same by this appeal.

The prosecution case, in brief, is that the deceased Shri Satya Bhan was employed as a"Khaki" with Shri Kulbhushan (P.W. 1), Inspector of Works, Northern Railway, Shimla. Accused Appellant Devinder Singh had also worked as a casual laborer in this department for sometime in the year 1979-80. The Appellant knew the deceased very well and they were on visiting terms. The marriage of the younger brother of Satya Bhan was fixed somewhere in the month of May, 1986. The deceased got a sum of Rs. 800/- or so towards his salary on 19-4-1986. In addition to this, the deceased received an amount of Rs. 2200/- on 22-4-1986 from a Society formed by the railway employees at Shimla. On 24-4-1986, the deceased left his duty at the Railway Station, Shimla, after taking permission from the Inspector Shri Kulbhushan at about 4 or 4.30 p.m. The Appellant was also present at the Railway Station, Shimla, when the deceased had obtained this permission for leaving the duty. Thereafter, both the deceased and the Appellant were noticed at the Railway Station, Shimla, by Shri Dut Ram (P.W. 17) who was employed as a ''Mate'' in the same office. The deceased had taken leave for 25-4-1986 and he was to have his compensatory rest and proper weekly rest on 26-4-1986. The deceased was to resume his duty at Shimla on 28-4-1986.

The further version of the prosecution is that on 24-4-1986, the deceased left with the Appellant to village Gawas village of the Appellant. It is also the case of the prosecution that the deceased wanted to purchase some gold in connection with the marriage of his younger brother and the Appellant had, taken him to his village with the purpose of purchasing gold. The deceased was seen in the company of Devinder Singh in Rohru Bazar on 25-4-1986 by Jawahar Singh (P. W3) and Parkash Chand (P. W. 4). He was also noticed on 26-4-1986 in the company of the Appellant at his house in village Gawas by P Ws Jawahar Singh, Parkash Cltand, Par tap Singh (P.W. 11), Surjan Singh (P.W. 12) and Sukhchain Singh (P. W. 18). The further case of the prosecution is that the Appellant had informed all these witnesses that the deceased was his friend from Delhi and had come to see the hills. The Appellant and the deceased also visited the house of Shrimati Surju Devi at about the same time with a view to purchase gold but no gold was available with Shrimati Surju Devi.

The deceased did not resume his duty on 28-4-1986. He was also not seen by anybody after 26-4-1986 when he was seen at village Gawas with the Appellant.

Shri Kulbhushan, Inspector, deputed Shri Goodwin (P.W. 19) and Shri Ram Abadh to look for the deceased but the deceased could not be found.

Shri Ashok Kumar (P.W. 21) is the younger brother of the deceased. He came to Shimla in search of the deceased on 5-5-1986. He was informed by Shri Kulbhushan and Ors. that the deceased had gone with the Appellant in the evening of 24-4-1986 and since then he had not returned. On this, Shri Ashok Kumar lodged the First Information Report No. 4 of 1986 (Ex. P.W. 21/A) at Police Station, Shimla, complaining the disappearance of his brother, the deceased. A case u/s 364 of the Indian Penal Code was registered at Police Station, Shimla. The Appellant was arrested by the Station House Officer, Siri Dhar Parshad (P.W. 24), Police Station G.R.P., Shimla, on 6-5-1986 in connection with the aforesaid offence u/s 364 of the Indian Penal Code.

It is also the case of the prosecution that on 7-5-1986, the Appellant was taken to Police Station, Jubbal. Ram Abadh (P.W. 22), Ashok Kumar (P.W. 22) and Ram Dhan were also present with the police at Police Station, Jubbal. On 7-5-198.6 at about 8 p.m. while in police custody, the Appellant made a disclosure statement to the effect that he had kept concealed the dead-body of Satya Bhan in Nallah Giri-Garh under the stones and can get the same recovered. This forms the basis of memo. Ex. P.W. 22/A, duly signed by the Appellant and witnessed by Ram Abadh and Ram Dhan. Consequently, in the morning of 8-5-1986, the Appellant led the police party to Nallah Giri-Garh near village Gawas and got the dead body of the deceased recovered from a ditch in a nallah where it was lying embedded m the sand and mud. The dead body was lying in the water whereon 30-35 stones had been placed. The Appellant removed these stones before taking out the dead body which was recovered in the presence of Ram Dhan, Ram Abadh, Ashok Kumar and Devi Saran (P.W. 5) who were associated by the police at the time of the recovery. The dead body was identified by Shri Ashok Kumar, Ram Abadh and Ram Dhan to be that of Satya Bhan, deceased. Coat Ex. P-6, Shirt Ex. P-7, trousers Ex. P-8, Pant Ex. P-9, Sweaters Ex. P-10 and Ex. P-l 1, Pair of shoes Ex. P-12, underwear Ex. P-13 and vest Ex. P-14 were there on the dead-body of the deceased which were taken into possession under memo. Ex. P.W. 5/A signed by the Appellant and witnessed by Devi Saran, Ram Abadh and Ram Dhan.

Inquest Report (Ex. P.W. 10/B) was prepared by Shri Siri Dhar Parshad on the spot and thereafter the dead body of the deceased was sent to Civil Hospital, Rohru, for postmortem examination by Dr. Ram Lai Sharma (P.W. 10) who found injuries on the brain, liver spleen and left kidney of the deceased. According to the doctor, the death of the deceased was instantaneous and was caused due to the injuries to the brain, liver, spleen and kidney leading to severe hemorrhage, shock and death. The relevant parts of the body were separately sealed and handed over to the police and the same were sent to the Chemical Examiner, Karnal, for examination and the report Ex. P.W. 10/D shows about the absence of any common poison in liver, spleen and kidneys, large and small intestines, stomach contents and aortic blood collected from the dead body of the deceased Satya Bhan.

It is also alleged that on 16-5-1986, the Appellant, while in police custody, led the police to Forest Rest House, Gawas and pointed out the place wherefrom he had allegedly thrown Satya Bhan, deceased. The Appellant is stated to have also pointed out the place where Satya Bhan had fallen down after being thrown down by the Appellant. These spots were pointed out by the Appellant in the presence of Shri Basant Singh (P.W. 23), who had prepared the photographs Ex. P.W. 23/A to Ex. P. W. 23/E of the spots. Sakin Chand (P.W. 25), is the Patwari. He had prepared the site plan Ex. P.W. 25/A of the places pointed out by the Appellant.

Shri Udham Lai, father of the Appellant, had produced currency notes worth Rs. 200/- before the police on 16-5-1986 which were seized under memo. Ex. P.W. 9/A, signed by Udham Lal and witnessed by Devi Saran and Bali Ram. Similarly, on the same day, Anup Singh, brother of the Appellant, also produced currency notes worth Rs. 220/- which were seized vide memo.

Ex. P.W. 9/B, signed by Anup Singh and witnessed by Beli Ram and Devi Saran.

On 21-5-1986, a ruka Ex. P.W. 13/A, was sent by Siri Dhan Parshad Station House Officer, Police Station, G.R.P. Shimla, to Station House Office, Police Station, Rohru, for the registration of a case u/s 302 read with Section 201 of the Indian Penal Code as the offence was found to have been committed within the jurisdiction of Police Station, Rohru. First Information Report Ex. P.W. 13/B was then recorded and after the investigation of this case, the Appellant was tried for offences under Sections 302/201 and 404 of the Indian Penal Code for having finally committed the murder of the deceased by throwing him down from a precipice and also causing the disappearance of the dead body of the deceased with the intention to screen himself from legal punishment. Besides, the Appellant was also preceded against u/s 404 of the Indian Penal Code for having dishonestly misappropriated the money in the possession of the deceased at that time.

The Appellant, in his statement u/s 313 of the Code of Criminal Procedure, admitted that he knew Satya Bhan, deceased. He also admits that the deceased had gone with him to his village Gawas but denies having any knowledge about the availability of money with the deceased or that the deceased had gone to his village for purchasing gold. It has also been denied that he made any disclosure statement as a consequence of which the dead body of the deceased was recovered.

In nutshell, the case of the Appellant appears to be that both the Appellant as well as the deceased were friends and knew each other very well. The object of the visit of the deceased to village Gawas in the company of the Appellant was his (deceased) desire to see hills. He further states that the deceased had returned from his village Gawas on 27-4-1986 and thereafter he did not know anything about the death of the deceased. He had gone to the house of his father-in-law in village Sainj on 28-4-1986 and returned to Shimla on 1-5-1986 and so he did not know anything about the death of the deceased and he has been falsely implicated in this case.

The Appellant examined Shri Amar Singh (D.W. 1) and Shri Chander Singh (D.W. 2) in his defense.

Now, in order to examine the prosecution case, it is necessary to look to and examine the versions of various relevant and material witnesses produced by the prosecution to establish the case against the Appellant keeping in mind the various factors examined by the trial court as well as the fact that in this case there is no eye witness to the occurrence and the case is entirely based on circumstantial evidence and principles whereof are well-settled in Sharad Birdhichand Sarda Vs. State of Maharashtra, as under:

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 Sahabrao Bobade and Another Vs. State of Maharashtra, 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 a 11 hum; ji pro bability the act must have been done by the accused.

Further, in Prem Thakur Vs. State of Punjab, Chief Justice Y.V. Chandrachud, speaking for the Court, observed in para-11 as under:

The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime muse clinch the issue of guilt.

In AIR 1987 SC 507 Kansa Behra v. State ofCrissa), it was observed as under in para-12 of the judgment:

...It is a settled rule of circumstantial evidence that each one of the circumstances has to be established beyond doubt and ail the circumstances put together must lead to the only one inference and that is of the guilt of the accused...

Moreover, if there is scope for the use of surmises, the same can be used more liberally in giving benefit to the accused rather than arriving at a conclusion to convict him Mangat and Another Vs. State, .

One of the points taken into consideration against the Appellant is the motive for the commission of this offence. It is alleged that the Appellant knew that the deceased had a sum of Rs. 3000/- or so with him having taken this amount by way of salary and advance from a Society, so with intention to rob this money, the accused killed the deceased. In nutshell, the argument is that the Appellant killed the deceased for the sake of money. This argument is not, at all, convincing. It is not necessary that motive has to be established by the prosecution in each and every case nor the same is an essential ingredient of an offence. However, it is essential to be established by the prosecution if the facts and circumstances of a particular case so warrant. The present case can be classified to be a case where the motive is essential as the same has been set-up against the accused for committing the murder of Satya Bhan.

In my opinion, this theory of the prosecution is utterly baseless and thoroughly unacceptable besides being unreasonable.

It is in evidence that the Appellant and the deceased had been working together at the Railway Station for some time. They were known to each other, rather they were friends. The Appellant, very often, visited the deceased. It is also in evidence that the object of the deceased for visiting village Gawas was to see the hills and to purchase some gold, although this aspect has neither been seriously taken care of nor established by evidence. Quite openly they go from Shimla, are seen in Rohru Bazar where the deceased was introduced to a number of village folks. Can it be said, in these circumstances, that the motive of the Appellant was to kill the deceased? Certainly not to draw such an inference would be thoroughly conjectural. Moreover, there is no evidence that the Appellant knew that the deceased had in his possession the amount stated by the prosecution in this case. Besides, it is hard to say that the Appellant would go to the extent of killing a close friend who had come on his invitation to his village.

This theory further eclipses as soon as it is seen that this amount, if so possessed by the Appellant, was not at all recovered. Recoveries of paltry amounts of Rs. 200/- from Udham Lal (not examined), father of the Appellant, and Rs. 220/- from Anup Singh (not examined), brother of the Appellant, are of no importance and consequence. Money to this extent is normally available with people and if it is recovered from the possession of the father and the brother of the Appellant, it cannot be said that it is out of the amount stated to be in possession of the deceased. The learned Sessions Judge has rightly disbelieved this part of the case and acquitted the Appellant u/s 404 of the Indian Penal Code.

The second circumstance used by the prosecution is that the Appellant was last seen with the deceased at Shimla, at Rohru and at Gawas-the village of the Appellant. The trial court has wrongly believed this part of the prosecution case. The Appellant was seen at Shimla on 24-4-1986 by Shri Kulbhushan (P.W. 1). He was further seen by Shri Dut Ram (P.W. 17) in the evening of 24-4-1986. He was also seen by Shri Ram Abadh (P.W. 22) while going with the Appellant in the evening on 24-4-1986 at about 11.30 p.m. This evidence is of no consequence because thereafter the accused-Appellant is seen at Rohru Bazar and at the house of the Petitioner at village Gawas by Shri Jawahar Singh (P.W. 3), Parkash Chand (P.W. 4), Shri Partap Singh (P.W. 11) and Shri Sukchain Singh (P.W. 18) on 25-4-1986 and 26-4-1986. These facts are admitted even by the accused, but the question for determination is whether it can be said that the Appellant was last seen with the deceased in the absence of evidence produced by the prosecution that the deceased left the house of the Appellant on a particular day and time when the Appellant was last seen with the deceased. Evidence on this aspect has to be nearest and not longest in order to prove the theory of last seen otherwise inapt, reckless, arbitrary and casual use of the same has got dangerous dimensions and repercussions. People go on meeting each other quite often in the present case there is no evidence to show even remotely as to on what date and time the deceased left the house of the Appellant. There is also no evidence as to whether the accused was seen off by any one and if so, at what place and to what extent from the house and village of the Appellant. These are key factors to be seen before it can be concluded that the Appellant was last seen with the deceased and thereafter the deceased was found killed. There is complete lack of evidence on this part and it is quite safe to conclude that the prosecution has failed to establish that the Appellant was last seen with the deceased before the occurrence on which fact (date of killing), there is no evidence and admitted to be so by Shri M.S. Guleria, learned assistant Advocate General, when specifically asked to point; Out the same.

The last circumstance relied upon by the prosecution s doe discovery of the dead body as a consequence of the information supplied by the Appellant u/s 27 of the Indian Evidence Act. This aspect of the case presents a strange phenomenon, it is evidence that Shri Ashok Kumar (P.W. 21), of "le deceased, came in search of the deceased at Shimla; he lodged the first formation Report, No. 4/1986 at Police station G.R.P. on 5-5-1986 u/s 364 of the Indian penal code and the investigations started relating to this offence, ins in the statement of Shri Siri Dhar Prasad (P.W. 24), Sub-Inspector of Police, the then In charge of the Police Station, that the accused was arrested on 6-5-1986.

Shri Ram Abadh (P.W. 22) states that the Appellant was arrested on 5-5-1986. He further states that the Appellant had already made a disclosure statement at Shimla on 7-5-1986 and the same was recorded in writing.

Shri Ashok Kumar (P.W. 21) also states that the Appellant had disclosed to the police at Shimla, before they left on 7-5-1986 for Jubbai, that he could get the dead body of the deceased recovered from a place known as Giri Garh nallah. His statement have not been placed on the record of this case by the police. The result is, the police had come in possession of the inform; lion to the place where the dead body was living. If this is so, visit of the police to Hatkoti and Police Station, Jubbal, on 8-5-1986 at 8 a.m. appears to be without purpose although it is stated that the disclosure statement was made by the Appellant at this place as witnessed by Shri Ashok Kumar (P.W. 21) and Ram Abadh (P.W. 22). The crux of the matter is: that in the presence of the disclosure statement alleged to have been recorded at Shimla, there was no justification for the recording of second disclosure statement at Police Station, Jubbal; rather the same becomes illegal and of no consequence. The prosecution having failed to produce the statement recorded at Shimla, the result is that no reliance can be placed on the so-called disclosure statement (Ex. P.W. 20/A) recorded at Police Station, Jubbal, and the recovery cannot be considered to have been made as a result of any disclosure statement recorded by the police u/s 27 of the Indian Evidence Act.

Now, coming to the crucial aspect of the recovery of the deadbody, it is in evidence that the police had arrested one Mohinder Singh of the same village in connection with this case He was in the custody of the police till his discharge by the police. It is in the statement of Shri Devi Saran (P.W. 5) that he was with the police party while it went to Giri Garh Khad. The accused led them to a ditch in a khad where there was some water. From that place, stones were removed which were quite large in number. The accused took part in the removing of the stones where after the dead body was recovered. He further states that on the recovery memo. (Ex. P.W. 5/A), his signatures were taken by the police when it came for the investigation of die case for the second time when neither the Appellant nor Ashok Kumar were present. He further says: "One more person was also arrested by the police along with accused Devinder Singh. That person had also removed the stones at the time of recovery of dead body." On the prayer of the prosecution, this witness was declared hostile on this aspect and in cross-examination by the prosecution, he said:

It is incorrect that the second man who was in police custody did not go to the place of recovery or that that person was left by the police at Batwari. It is also incorrect that the second man did not get the stones removed.

The effort of the police, it appears, was to exclude Mohinder Singh from accusation in this case and to fasten the same exclusively on the shoulders of the Appellant. With this end in view, the prosecution has endeavored to show that Mohinder Singh was left at Batwari and it was only the Appellant who led them to the place in the khad, removed the stones, which were kept on the dead body, and recovered the same. But this does not at all appear to be so. It is absolutely doubtful to ascribe these steps to the Appellant. In his examination u/s 313 of the Code of Criminal Procedure, the Appellant states that he was taken by the police to the place along with Mohinder Singh and the dead body was taken out by the police and the witnesses and he knew nothing. He further states that the police took him there and he did not point out to any place nor that place was known to him. It cannot, therefore, be said data the Appellant was responsible for dumping the dead body of the deceased at that place and the same was recovered at the instance of the Appellant. The other way to examine the authenticity of this aspect of the case is the reason of concealing the dead body in the form alleged by the prosecution looking to the fact situation. The story of the prosecution that he was pushed by the Appellant from a precipice for robbing him of his money is thoroughly baseless and unbelievable. So is the factor of concealing the dead body. The place is such (a deep cavity/ ravine) where there was no cause to conceal the dead body as the same could not otherwise be visible to anyone. Moreover, it is a ''place which is not at all frequented by anyone. The inference which can be safely drawn is that the evidence as to the dumping of the dead body in sand and mud and placing of stones thereon is something which has been intentionally created to make it out a discovery within the meaning of Section 27 of the Evidence Act. So, this aspect of the case of the prosecution is thoroughly unbelievable and the inference drawn by the learned Sessions Judge on this aspect of the case are not correct and in tune with well accepted norms for drawing such conclusions. Alternatively, pointing out of a particular spot by the Appellant from where, later on, the dead body was recovered, does not advance the case of the prosecution for proving the guilt of the Appellant. The fact, at the most, indicates that he had knowledge that a dead-body was lying there. This knowledge could be acquired in various ways but it cannot be held without cogent and convincing evidence that it was none other than the accused who had thrown the dead body there 1962 Cri LJ 690, Dadulla Dhcmukai Ram and Ors. v. State of Madhya Pradesh, and 1988 (III) SVLR (Cr) 1, Makhan Singh v. State of Punjab].

The net result of the aforesaid discussion is that the prosecution has not been able to prove as to whether the death of the deceased was really homicidal or accidental- It cannot be inferred definitely in this case that it was homicidal because the fact situation indicates that the passage from village Gawas is narrow and passes through high hills. It cannot be ruled out that the deceased unknown to the area and the local hilly passages, had slipped, fell down the precipice and died as a consequence thereof (See: Kali Ram Vs. State of Himachal Pradesh,

In view of the aforesaid examination of the case, it can be said that the prosecution has not been able to prove the offence against the accused beyond all reasonable doubts with the result that the appeal of the Appellant is hereby allowed. The conviction and sentence recorded by the trial court are set-aside. The accused is stated to be in jail. He is ordered to be set at liberty at once.