Kishan Lal vs State of Himachal Pradesh

Surinder Singh, J.—This is a jail appeal preferred by the appellant against his conviction and sentence for the offence of murder punishable u/s 302 of the Indian Penal Code whereby he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- with the default clause. In short, the prosecution case, as emerges from the evidence on record, can be stated thus. On 14.8.2004 at about 10.30 p.m. PW1 Babu Ram, a farmer was on his way to scaffold to guard his maize crop. On his way, he heard the shrieks of a lady coming from the place known as "Dharamshala" which was at a distance of about 10-12 meters from his house. He called his son Shyam Lal. Both of them went to PW2 Ashwani Kumar Pradhan of their Panchayat and informed him. All of them visited the place of incident and noticed a dead body of an unknown lady lying inside the jhugi (temporary shed). Her bag, cloths and milk bottle were lying nearby. PW2 Ashwani Kumar telephonically informed the police. Police reached the spot around 12.00 during night. The statement of Babu Ram Ext. PA was recorded u/s 154 of the Code of Criminal Procedure on the basis of which a formal FIR was registered.

(ii) Next morning, another dead body of a male child (2 1/2 years) was recovered from a nearby nullah which was at a distance of 60 feet from the dead body of the lady.

(iii) Police prepared the site plan Ext. PW16/A of the place where the dead bodies were found. Photographs Ext. PF to Ext. PJ were taken. The cloths, articles Ext. P1 to Ext. P20 etc which were found on the spot were put in a bag and were sealed, thereafter taken into possession vide memo Ext. PW1/C. Police also took broken bangles into possession and the blood stained earth from the spot, including a hair-pin and a ring which were also made into a separate parcel and sealed with seal impression ''A'', vide memo Ext. PD.

(iv) Police also prepared the inquest papers and sent the dead bodies for autopsy on 15.8.2004 at 5 p.m. PW7 Dr. S.K. Patial conducted the postmortem of the dead child and unidentified female. The lady was about 35 years of age. Doctor noticed right zygomatic eminence swollen and swelling on right side of forehead, eyes congested, right lower eyelid and upper lip of the dead female. Further, food matter was coming out of nostrils. Laceration on the inner side of upper lip was also noticed. Blood was found in the mouth cavity. Blood was splattered over forehead and left cheek. A sacred mala in the neck was loosely tied. No marks of ligature or mark of strangulation were seen on the body. Rigor mortis was passing out. However, there was a swelling of 10 cm x 10 cm on the right side of forehead. There was also a fissured fracture of the frontal bone on right side extending to the glabella and to the base of the skull (anterior cranial fossa) and roof of nose. There was evidence of blood having come out of the nostril and mouth. Subdural haemotoma in the area of frontal region was noticed and there was about 100 ml blood collected under the durameter. In the opinion of the doctor, female deceased had most probably died because of head injury. Viscera was preserved and sent to chemical examiner. He issued postmortem report Ext. PN. The period between death and injury was few minutes or instantaneous and the period between death and postmortem was more than three hours but less than 48 hours. Simultaneously he had also conducted the post mortem of the dead body of a male child. He was wearing a saffron colour half shirt sleeveless and a thin blue knicker. The dead body was having flaccid- rigor mortis passing out. Face was dark coloured with blood from nostrils and mouth. Tongue was found bitten under the clenched teeth. Face had multiple ante mortem bruises, chin had post mortem abrasions. Mouth and the lips were having ante mortem bruises all around. Face was congested with petichae. Crescentic scratches on left side of neck were four in number. Impression bruises over the upper part of neck on right side and abrasions on left side of neck accompanied by crescentic scratches were also noticed. Eyes were congested. Fracture of hyoid bone was also seen. Both the lungs were congested and the cut surface exuded dark frothy blood. In the opinion of the doctor, the male child had most probably died due to asphyxia as a result of homicidal throttling and gagging. The time between injury and death was between 4-5 minutes or instantaneous. Time between death and post mortem was more than three hours and less than 48 hours. The doctor had issued post mortem report Ext. PP to this effect. After receipt of the chemical examiners reports, final opinion remained the same but in the opinion of the doctor, the lady had died because of striking her head on the ground and with respect to death of male child, his opinion remained unchanged.

During investigation PW16 S.I. Purshotam Chand recorded the statements of six witnesses and tried to trace out the accused but in vain. On the cloth of the female deceased, there was a slip of Ludhiana, therefore, on 17/18.4.2005 he proceeded to Ludhiana and was able to trace out the father of the lady, namely, Kartar Singh @ Kartana (not examined), who, on seeing the photographs, identified dead body of female as his daughter and male as his grandson.

PW6 was running a tea-stall at Brahmnighat on the bank of Govind Sagar lake from where people used to go in boats to Nangal and to other places across the lake. According to him, accused had come to his tea-stall on 14.8.2004 at about 3.30 p.m., with a lady and a child. It was raining heavily on that day. All the three, including the accused took food in his shop/tea-stall in one plate and also took two cups of tea. The accused gave a 20/- rupee note, out of which he returned 5/- rupee to him. They had stayed in his tea-stall for about one and a half hours and left after the rain stopped. According to him, they were also having a bag containing their belongings. Next day on 15.8.2004, he had opened the tea-stall at 8 a.m. He was informed by two constables about the murder of the lady and the child. Then he went to the spot, saw the dead body of the lady in a hut and the dead body of the child was located from the bushes at some distance. He identified them to be the same who had visited his tea-stall with a person on the previous day. Photographs were taken and thereafter he came back to his shop. The police had taken him to Police Station and shown the articles and cloths of the child. After few days, he was called by the police to Shimla and on his information a sketch Ext. PM of the person accompanying the deceased was prepared by the police on computer as per description given by him.

After about 8 months, i.e. on 14.4.2005 a person dressed like sadhu was located in Brahmnighat who intended to go in the boat. Getting suspicious, the boatman called PW6 Barkety Ram asked that person that he had become sadhu and inquired about the lady and child but he refused that no lady and child were ever with him. However, PW6 identified him to be the same person who had taken food with the deceased and her child and also the way he was speaking. At that time, Dharam Singh, PW10 Khem Chand and PW11 Ranjeet Singh were stated to be present. They were told to keep eye on him, thereafter he went to PW2 Ashwani Kumar Pradhan and told him about the accused and to inform the police about his presence at Brahmnighat. Police reached the spot and took the accused into custody on the same day, i.e., on 14.4.2005.

Thereafter on 23.4.2005 test identification parade of the accused was conducted before the Additional Chief Judicial Magistrate J. K. Sharma. The detailed report is Ext. PW12/C.

On 24.4.2005, on interrogation, the accused is stated to have made a disclosure statement Ext. PE u/s 27 of the Indian Evidence Act in the presence of constable Shashi Kant and HHC Kashmir Singh with respect to the place where the alleged crime was committed by him to which he pointed out by taking the police to the spot. To this effect memo Ext. PB was prepared in the presence of PW 1 Babu Ram and Bhajan Lal (not examined). The spot was also got demarcated from patwari PW3 Jagar Nath and he prepared the tatima Ext. PW3/A at the behest of police and handed over it along with copies of jamabandies to them.

On the basis of the aforesaid evidence, challan was prepared against the accused for the offence aforesaid and presented in the Court for his trial.

Accused was accordingly charge sheeted u/s 302 Indian Penal Code to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses and accused was also examined u/s 313 of the Code of Criminal Procedure. His case was denial simplicitor. But stated that he never visited the dhaba of PW6 Barkety Ram to take food along with deceased persons, as alleged and further that police had wrongly arrested him in this case. He was asked to confess crime but he did not do so, on this, he was threatened to be shot dead. Then he felt unconscious. His thumb impressions were obtained on various papers in the police Station. He pleaded innocence and alleged false implication. No evidence in defence was led.

Disbelieving his defence, the accused was convicted and sentenced as aforesaid on the circumstantial evidence. Hence the present appeal.

There is no eye witness to the alleged incident. The prosecution heavily relied on the following two circumstances:-

i). Last seen.

ii). Disclosure statement and pursuant to it discovery of the place of the alleged incident.

The appellant was unrepresented and vide order dated 7.1.2008 Shri M.S. Guleria, Advocate was appointed as counsel for the appellant at the State expense. He was supplied with the paper book. Arguments were heard.

Shri Guleria vehemently argued that the evidence with respect to the last seen theory, as propounded by the prosecution is contradictory, shaky and wholly unreliable, further the disclosure statement and pointing out evidence is only a cover up story to link the accused without any substance with the alleged offence. It is also submitted that evidence qua identification and TIP both are also shaky and deserves to be discarded.

On the other hand, Shri D.C. Pathik, learned Additional Advocate General while relying upon the evidence regarding aforesaid circumstances supported the impugned judgment of conviction and sentence.

We have given our thoughtful consideration to the rival contentions of the parties and have reappraised and legally scanned the evidence to its meticulous details to find out the truth.

In Paramjeet Singh @ Pamma Vs. State of Uttarakhand, , the apex Court while dealing with the legal issues with respect to the standard of proof, observed as under:-

A criminal trial is not a fairy tale wherein one is free to give flight to one''s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide Kashmira Singh Vs. State of Madhya Pradesh, The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, Mousam Singha Roy and Others Vs. State of West Bengal, and Aloke Nath Dutta and Others Vs. State of West Bengal,

In Sarwan Singh Vs. The State of Punjab, this Court observed:

Considered as a whole the prosecution story may be true; but between ''may be true'' and ''must be true'' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted].

Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt.

[Emphasis ours]

Though in the case in hand, the death of lady and the child is homicidal and is a gruesome blind murder, there is no eye witness to the incident. The case hinges upon the two above mentioned circumstances. In Paramjeet Singh''s case supra reiterated the principle of law laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra, and held that it is well settled that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the Court where various links in the chain of circumstantial evidence are in themselves complete. The apex Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence for that:-

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(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.

A similar view has also been reiterated by the Supreme Court in State of U.P. Vs. Satish, Ramesh Bhai and Another Vs. State of Rajasthan, ; Subramaniam Vs. State of Tamil Nadu and Another, ; and Babu Vs. State of Kerala, observing that the evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable.

Thus examining the present case in the light of the above established principles we proceed to weigh the relevant evidence on the above two circumstances.

(I) Last Seen.

PW6 is Barkety Ram who was running a tea-stall at Brahmnighat stated that on 14.8.2004 accused was present in his dhaba and took meals with the deceased lady and the child together and had paid the money to him. Thereafter he had seen him after about 8 months, i.e., on 14.4.2005 adorning sadhu dress, at Brahmnighat and was apprehended in the manner already stated above. He also stated about the sketch Ext. PM having been prepared on the computer by the police on describing his features. In cross examination he stated that because of his old age, he has some hearing problem and eyes have also become little weak and he admitted that thousands of people had been visiting Brahmnighat to visit temple. Presence of police is also admitted by him at the said place throughout the day during all seasons. He stated that he had come to know about the occurrence on 15.8.2004 in the morning at 8 a.m. When he visited the spot, about 40 persons were present there and the dead body of the child was located around 9.15 p.m. from some distance. He also stated that 8/10 persons used to take food daily at his tea-stall. But he could neither identify nor give names of other persons who had taken food at his tea-stall on 14.8.2004. He further stated that when the accused was apprehended, he was taken to police station but his face was not muffled. He along with Ashwani Kumar had also accompanied them to the police station. He also stated about taking of his signatures by the police but he stated that no document was prepared. He was also confronted with the sketch Ext. PM with respect to the description which was given by him. He also stated that he did not remember what was the time when the accused had come to his dhaba/shop, but speculated that it was 5/6 p.m.

PW10 is Khem Chand Fisherman. He stated that he was present in the dhaba of PW6 when the accused along with deceased persons were taking food but pertinently PW6 Barkety Ram had not stated about his presence in his dhaba at that time. In cross examination, he admitted that thousands of devotees come to Brahmnighat to visit Shah-talai temple. He did not remember the colour of the cloth of the lady who allegedly took food with the accused but according to him, she was wearing salwar and kurta. He stated that accused was wearing pajama and kurta whereas PW6 Barkety Ram stated that he was wearing pant and shirt. Further he did not know as to who had identified and caught the accused on 14.4.2005 but according to him, he was brought by police and told him that he had committed the murder. He also stated that his face was not muffled. He was also shown to him before his TIP in Bilaspur Jail.

PW11 Ranjit Singh was stated to be present in the dhaba of the accused on 14.8.2004 when the accused is alleged to have taken food along with the deceased persons around 4/4.30 p.m. Pertinently his presence has also not been stated by PW6 Barkety Ram. He stated that he had occasion to see these persons for about 25 minutes in the dhaba, thereafter he left for the house of his relatives but later it was on 15.8.2004 at Kut Bhangar where the accused was found roaming but did not say that he was at Brahmnighat, as stated by the other witnesses. In cross examination, he stated that many devotees visited Brahmnighat. Significantly, he stated that the person who was taking food with the deceased was clad in white dress and one male person with her was wearing black pant and sweater and not pajama and shirt, having a shawl, as stated by other witnesses. He categorically stated that he did not see the accused wearing pant at that time. According to him, he met accused next day at that time he was in black pant and white shirt. Surprisingly when on 14.8.2004 it was found that there is a homicidal death of a female and her son and he had been sure that it was accused who was taking food during the previous evening in the dhaba of PW6 at Brahmnighat, in that event, why he did not inform police or other persons present on the spot or apprehended him to explain as to what had happened to the lady and the child accompanying him, which certainly raises doubt on his veracity.

Thus on the critical examination of the aforesaid evidence we find inconsistency, material contradictions and embellishments in the statements of above witnesses on vital aspects. Therefore, their testimonies deserve to be discarded in its entirety also for the reasons that dhaba of PW6 Barkatey Ram was being visited by many people and he could not identify nor give details of any of other persons who had taken food on 14.8.2004 in his dhaba. Further, all the three witnesses discussed above have given different dress of the person who had taken food with the deceased and the child. Though PW6 stated about the presence of PWs 10 and PW11 at the time when he allegedly identified him at Brahmnighat but the other witnesses denied this fact but they stated that they were called by the police. The accused appears to have been apprehended on the basis of suspicion. Legally, the suspicion how so ever strong cannot take the place of truth.

The circumstantial evidence in this case is very weak replete with contradictions. The complete chain of circumstances has not been established.

As a matter of fact, the last seen theory comes into play where the time gap between the point of time when the deceased is found dead is so small that possibility of any other person other than the accused being the author of the crime becomes impossible, as held by the Supreme Court in Sk. Yusuf Vs. State of West Bengal, . It must essentially also be established that the accused and the deceased were last seen together in close proximity to the time of death of the deceased. If these two aspects are not established, in a particular case, the very application of last seen theory would be impossible and would create major dent in the case of the prosecution.

In the instant case, firstly the accused is not proved to be last seen with the deceased proves beyond doubt, but for the argument sake in any case he was last seen around 4.30 p.m. then the time of death is around 10.30 p.m. after about 6 hours, as stated by PW1 Babu Ram he had heard shrieks emanating from the place known as "Dharamshala" from a hut nearer to his house around 10.30 p.m. Thereafter he called his son, informed Pradhan and went to the spot and found that woman was lying dead. Significantly, no one stated about the presence of the accused with the deceased in close proximity of time with the deceased nor there is any link evidence to establish his presence at the place of the incident. The time gap between death and the accused last seen alive is not so small that the possibility of person other than accused being author of the crime is possible. Therefore, reasonableness of time gap has a significance. Further, the prosecution has not imputed any motive of the alleged crime. Though it is not imperative but it could have served as a link to establish the link to explain what otherwise remained unexplained. There is also no other evidence connecting the accused with the crime. Therefore, last seen theory in the instant case is not conclusive in nature and tendency.

(II) Disclosure Statement.

The accused was arrested on 14.4.2005 thereafter his identification parade was also conducted. It is quite evident from the statements of the witnesses that his face was not muffled. The persons, who identified him in the jail before the Magistrate were already accompanying the police when he was apprehended at Brahmnighat. Therefore, his identification parade before the Magistrate is of no consequence.

The prosecution case relies upon the evidence of pointing out pursuant to the disclosure statement made after about 8 months. On 24.4.2005, the accused is alleged to have made the disclosure statement u/s 27 of the Evidence Act to the police, i.e., after about 10 days of his arrest, that too, before two police officials. When on 24.4.2005 other independent witnesses were available, it is not understood as to why they were not made witnesses to this statement. In so far as pointing out of the place is concerned, PW1 Babu Ram and Bhajan Lal (not examined) are the witnesses to the memo Ext. PB. Pertinently PW1 aforesaid in his examination-in-chief stated that accused has not made any statement in his presence. Thereafter he was cross examined by the learned Public Prosecutor then he admitted the execution of the memo aforesaid to this effect whereas the other witnesses did not say anything about making of any such statement. The pointing out evidence in the manner aforesaid coupled with the fact that the place was already known to the police is certainly not acceptable piece of evidence. This piece of evidence when the place of incident was already known to police is nothing but was introduced only to strengthen its case in which they failed.

Further the record reveals that PW2 Ashwani Kumar informed police telephonically that an unidentified body of a female was lying on the Brahmnighat path. This report was jotted down in the daily diary at 11.45 p.m. on 14.8.2004 by the police and its entry is Ext. PX. There is no reference about the dead body lying in a Jhugi, as stated by the witnesses which also makes the prosecution case all the more doubtful.

The sum and substance of the above discussion, in our considered opinion, is that the prosecution has failed to prove both the circumstances against the accused beyond reasonable doubt and in accordance with the established principles of law, as laid down by the apex Court. Thus, the appeal is allowed and the judgment of conviction and sentence is unsustainable therefore set aside for the reasons aforesaid. Consequently, the accused is acquitted by giving him the benefit of doubt.

Since the accused is in jail, he be released forthwith if not required in any other case.

The Registry is directed to prepare the release warrant of the accused and send to the Superintendent of the Jail concerned in conformity with this judgment forthwith to do the needful. The matter stands disposed of. Send down the records.