Pawan Kumar vs State of Himachal Pradesh

Rajiv Sharma, J.�The present appeal is instituted against the judgment dated 27.5.2009 rendered by learned Additional Sessions Judge, Shimla, H.P. in Sessions Trial No. 1-S/7 of 2009, whereby the appellant/accused (hereafter referred to as the "accused" for the sake of convenience), who was charged with and tried for an offence punishable under Section 302 of the Indian Penal Code, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302 of the Indian Penal Code.

The case of the prosecution, in a nutshell, is that on 27.6.2008, PW1 Roop Dutt, Vice President, Gram Panchayat, Balog telephonically informed the Police at Police Post Junga that near Balog Ghati in Dob Nallah, dead body of a woman was noticed. The police proceeded from Junga to the spot. The Incharge, Police Post Junga, who was at that time away in Rohalti area, was telephonically informed, who further informed the Police at Police Station Dhalli. The police reached the spot. Statement of Roop Dutt under Section 154 Cr.P.C. was recorded. Dead body was sent to the IGMC for postmortem examination. According to the report of the doctor, the deceased died due to asphyxia secondary to ligature strangulation homicidal in nature. It has come in the investigation that the deceased Nirmala left her house on 26.6.2008 for Chail to buy some goods. She was expected to return by the evening, but she did not. Next day, her dead body was spotted in Dob Nallah. The accused was arrested. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities.

The prosecution examined as many as twenty five witnesses in support of its case. The accused was examined under Section 313 Cr.P.C.. He denied the case of the prosecution and claimed innocence. Learned trial court convicted and sentenced the accused under Section 302 of the Indian Penal Code vide judgment dated 27.5.2009, as stated hereinabove. Hence, the appeal.

Mr. Vinay Thakur and Mr. Satyen Vaidya, learned Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused.

Mr. Parmod Thakur, learned Additional Advocate General, has supported the judgment dated 27.5.2009.

We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully.

PW1, Roop Dutt, deposed that on 27.6.2008, he was present at Janedghat. At about 3.45 P.M., one Hira Singh informed him telephonically that dead body of a lady was noticed in Dob Nallah. He made a telephonic call to the Police Post, Junga. At about 4.00 P.M., Vishnu Dutt of Village Dhang met him and told him that the deceased was his wife. He took Vishnu Dutt in his vehicle to the place where the dead body was lying. When they reached the spot, about 4-5 persons gathered there. They saw dead body of Nirmala, which was about 300-400 metres away from the road. There was a dupatta around her neck having 3-4 knots. A blood stained stone was lying nearby. Two polythene carry bags were also lying there. After some time, the police also reached the spot and recorded his statement under Section 154 Cr.P.C., Ext.PW1/A. Next day, the police inspected the spot. Police took into possession blood stained stone, carry bags and a purse containing some money and these were sealed in two separate parcels with seal impressions "A" and "H". Kewal Ram witnessed the proceedings. The seals were handed over to Kewal Ram. His signatures were obtained on memos, Ext.PW1/B and PW1/C. In cross-examination, he deposed that Vishnu Dutt once or twice told him that character of deceased was not good. They often used to quarrel. Laiq Ram told him on the day of ''Kriya'' that he had seen the deceased with someone in Shimla on 26.6.2008. Laiq Ram also told him that he also informed about this fact to Vishnu Dutt the same day. He admitted that the deceased used to leave house of Vishnu Dutt without informing him. She used to remain away for days together and due to this, relations between them were not cordial. A day prior to death of Vishnu Dutt, Sewak Ram met him in Village Dhang and told him that Vishnu Dutt told him that he had killed his wife Nirmala and his brother accused Pawan Kumar was innocent. On that day, Prakash also met him and told that Vishnu Dutt told him that he would confess his guilt and would go to jail and he intended Prakash to take his children with him. Babli, daughter of Vishnu Dutt, was living in her maternal uncles'' house for the last 3-4 years. She was sent by Vishnu Dutt to her maternal uncle''s house so that she would not follow foot steps of her mother. On 7.7.2008, he went to a transformer, which was near to the house of Babu Ram, on the direction of the police. The people gathered there. He saw a parcel there. He did not know what was contained in the parcel. The police went away with the parcel. Thereafter Babu Ram told him that the same day in the morning, two police officials, who were not in uniform, came to him and demanded from him clothes of Vishnu Dutt. He gave the clothes, which were kept in the cowshed by the police officials. Babu Ram did not tell him that they were Constables, Head Constables or ASI. Vishnu Dutt told him three times that the character of his wife was not good.

PW2, Ravi Kant, Patwari, deposed on 28.6.2008, he visited the spot and prepared Tatima, Ext.PW2/B and copy of Jamabandi, Ext.PW2/C.

PW3, Satya Dutt Sharma, deposed that on 22.6.2008, while he was returning from Giripul Subzi Mandi after selling garlic, he found the accused removing potato crop from his field. He wanted to help him in the field. He said that he had to consult his father. The accused accompanied him on that day to his house. Next morning, i.e. 23.6.2008, he came with accused and helped him in extracting the potato crop from the field. He stayed at the accused''s house till evening of 23.6.2008. On 24.6.2008 in the morning, he and the accused proceeded towards his house. On 25.6.2008 at 6.30 P.M., he proceeded towards his house. Thereafter, the accused never came to his house in the month of June 2008.

PW4, Bhagat Ram, deposed that in the month of July 2008, he was going from Janedghat to his village Kumhali. There was a Forest Check Post on the way. The police was present along with the accused in the check post. Babu Ram was with him. Police called them. Police told them that the accused murdered Nirmala by strangulating her with ''Dupatta''. The police asked from the accused whether he committed murder. The accused replied in affirmative. Thereafter, nothing happened in his presence. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor he admitted that the accused told the police that he had concealed his clothes in ''Obra''. He also admitted that the police recorded his statement, which was signed by him and Babu Ram. He identified his signature on memo, Ext.PW4/A.. Signature of the accused was also obtained. In cross-examination conducted by the learned counsel for the accused, he deposed that he had a house in Janedghat. On that day, he had also gone to his house at Janedghat. He was alone. He proceeded from Janedghat at about 4.00/5.00 P.M. to his village Kumhali. There was a Forest Check Post at Janedghat. Some forest officials always used to remain on duty there. He denied that he was not associated by the police during the investigation in the month of July 2008 or that nothing was disclosed by the accused in his presence. House of Babu Ram was adjoining to his house in village Kumhali. Wife of Babu Ram Mehta was President of Gram Panchayat Janedghat. He could not say that wife of Babu Ram was not supported by the accused and his family during her election. They remained at Janedghat Check Post for about 30 to 45 minutes. The accused did not disclose the police about the colour of the clothes. There was only one room in the Check Post. There were a bath room and a kitchen in the Check Post.

PW5, Babu Ram, deposed that on 6.7.2008, he and Bhagat Ram were going from Janedghat to their Village Kumhali. It was raining. On the way, they went inside the Forest Check Post in order to save themselves from the rain. SHO and ASI were present in the Check Post. They wanted to know from the ASI what happened about the murder case. ASI told them that the case was solved as the accused admitted the commission of murder. They asked him if he was confessing guilt under pressure of the police. The SHO asked the accused to state in the presence of the witnesses whether he would admit the guilt or not. The accused stated that he strangulated the deceased with her chunni. They questioned him how with the help of Chunni, he could kill a person. According to him, at that time a lady happened to pass by. The police asked for Chunni from her. The lady was his wife, Pushpa. He further deposed that infact, all of them were coming together and in order to save from rain, she also came inside the Check Post with him and Bhagat Ram. The police had not called her. She was already with them. The police handed over the chunni of Pushpa Devi to the accused. The accused putting the chunni around his neck demonstrated how one could be killed with the help of Chunni. The accused disclosed that the clothes, which he was wearing on that day, were concealed by him in his ''Obra''. A memo was prepared to this effect, vide Ext. PW4/A. In cross-examination conducted by the learned counsel for the accused, he deposed that on 6.7.2008, a meeting of the Panchayat was to be held at Janedghat. His wife was President of Panchayat. They proceeded at 10.00 A.M. from their house towards Janedghat. The meeting was over by 2.30 P.M.. It was raining. They sat at a shop for about 30 to 45 minutes. At about 3.30 P.M., he and Bhagat Ram proceeded towards Village Janedghat. They reached Check Post. They remained at the Check Post for about half an hour. According to him at about 4.00/4.15 P.M., they proceeded from the Check Post to their village. Police recorded his statement. He did not remember that when the Investigating Officer recorded his statement, it was stated that he asked the accused in the presence of the Investigating Officer, whether he was making confession under pressure from the police or that he stated that he was not under pressure. He was confronted with his statement Mark B, wherein it was not so recorded. He told the Investigating Officer that he inquired from the accused how he committed murder, who told him that he strangulated the deceased with her ''Chunni''. He did not tell the Investigating Officer that his wife Pushpa came there and after taking her ''Chunni'', the accused demonstrated the police how he killed Nirmala. He told the police that the accused disclosed that the clothes wee concealed by him in his ''Obra''.

PW6, Dharam Singh, deposed that on 7.7.2008, the police visited his village to call him and Rama Nand. They were called by the police to a Transformer. The SHO, ASI and 3-4 police officials were present there. The police asked to accompany them to the place where the murder was committed. They reached Dob Ka Nallah. The accused disclosed that he was hiding himself behind a tree of ''Chinna''. He strangulated the deceased with ''Dupatta''. She fell down. Then he pushed her down in the Nallah. The accused further told that thereafter he kept sitting under a shrub of Banna and watching to ensure that the deceased was alive or not. The police prepared the map, which was signed by them. The police prepared two other documents. Their signatures were obtained. He identified his signature on Ext.PW6/A and Ext.PW6/B. The police took the accused to village Dhang. The accused produced to the police a plastic bag from an ''Obra'' of goats kept under a sleeper. It was containing a red coloured T-shirt and a blue coloured lower. There were 3-4 long hair on the T-shirt. The hair were put in a match box and the same was wrapped in a piece of cloth with three seal impressions of seal "H". Another parcel of clothes was prepared, which was sealed with eight seals of seal impression "H". He identified his signature on the parcels, Ext.P7 and Ext.P8. In cross-examination, he deposed that he was told that the accused had been brought to the transformer. The police came to his house at about 10.30 A.M.. They reached the transformer in 15 minutes. The police official, who had come to him, was in civil dress. The SHO told them that the police would first take the accused to the place where the murder was committed and thereafter to the place where the accused had concealed the clothes. They stayed Dob Ka Nallah for about 45 minutes or one hour.

PW7, ASI Shakir Khan, deposed that on 27.6.2008, he had gone to Village Lakhoti in connection with a theft case. He received telephonic information at village Lakhoti to the effect that Roop Dutt, President, Balog Panchayat had given telephonic information at Police Post Junga that the dead body of a lady was noticed in Doob Dhang. He informed Dhalli Police from his mobile phone. The SHO directed him to visit the spot. He took the photographer from Chail and reached Doob Dhang. He also instructed M.C., Police Post Junga to send some police officials. Two Constables from Police Post Junga had already reached the spot before his arrival. Many people gathered there. He recorded statement of Roop Dutt, Ext.PW1/A. He sent the same to Police Station Dhalli for registration of the FIR through Constable Bihari Lal. The SHO visited the spot. On 6.7.2008, he along with SHO was present in the Check Post, Janedghat in connection with the investigation of the case. The accused was in the police custody. It was drizzling outside. Babu Ram Mehta and Bhagat Ram also came inside the Check Post in order to save themselves from rain. The SHO told them that the accused had committed the murder and he was being interrogated. The SHO associated them in the investigation. The accused stated to the SHO in their presence that he killed his sister-in-law (Bhabhi) by strangulating her. When SHO asked the accused how he committed the murder, he stated that he strangulated the deceased with her ''chunni''. He further disclosed that he knocked her down due to which she received injuries on her head because the head fell on a stone. He then picked up her and kept in a ''Nali''. He also disclosed to the police that he could identify the place where he committed the murder and also the place where he had concealed his clothes, which he was wearing at the time of offence. The SHO recorded the statement of the accused vide Ext.PW4/A. On 7.7.2008, the accused led them to the place of occurrence. Dharam Singh and Rama Nand were also present. Memo, Ext.PW6/A was prepared to this effect. Thereafter, the accused produced from the ''Obra'' a polythene bag, which was kept underneath the sleepers. It was containing a T-shirt and lower. On the chest portion of T-shirt, three long hair were found. The SHO put the hair in a match box and sealed the same in a separate parcel with seal impression "H". The clothes were also sealed in a separate parcel with seal impression "H". Both parcels were taken into possession vide memo, Ext.PW6/C. In cross-examination, he deposed that on 6.7.2008, they proceeded from the Police Post towards Janedghat at about 10.00/10.15 A.M.. They reached Janedghat at about 12.00 noon. They remained at the check post till around 5.00 P.M.. Babu Ram and Bhagat Ram reached the Check Post between 2.00 to 4.00 P.M.. They remained with them in the check post till 5.00 P.M.. Next day, they reached the transformer at about 10.30 A.M.. The transformer was about 7 to 8 kms away from Janedghat. He did not remember at what time, they reached Janedghat. They remained at the spot for about half an hour. Thereafter, they went to ''Obra''. It took about 3 to 4 hours in the entire proceedings.

PW8, Sandeep, deposed that on 26.6.2008, his mother, Nirmala Devi proceeded from the house to Chail at about 6.30 A.M. to purchase some goods. At about 8.00 A.M., he and his sister Sita went to the school. They came back to house from the school at about 4.45 P.M. His mother did not return home. Vishnu Dutt Sharma was his father. The accused was living with his grand parents and his father was living separate. When they reached from the school, the accused was at his home. His father was a home guard and on that day was on duty at Tara Devi. The accused used to quarrel with his mother. His mother had instructed him not to go the house of accused. On that day, a cricket match was coming on the TV. He repeatedly went to the house of accused to watch the match, but due to instructions of his mother, he had been coming back to his house. When he was coming back from the house of the accused, he saw him going towards Balog. Thereafter, he again went to the house of accused to watch TV. According to him, even at about 8.30 P.M., he was at the house of the accused watching TV. At that time, he saw that the accused came back to home and changed his clothes. He took his clothes outside the house and after some time, he entered the room. He after washing his hands and feet started watching T.V. He asked the accused to accompany him to bring his mother as it was dark. The accused told that she would not come. He went to his house, took the food and went to sleep. His sister, Babli used to live at her maternal uncle''s house at Village Jagyala because the accused was keeping bad eye on her. Next day his sister went to School, whereas he stayed at home. During day time, his father made a telephonic call to him. He told him that the previous day, his mother had gone to Chail and had not returned. One Santosh, who belonged to his village, met him. She told him that dead body of someone was lying to the upper side. When she was telling him about the dead body, his sister and her friend also arrived there. He and his sister went upward. They saw that Virender brother of Santosh was sitting near the dead body. They identified the dead body to be of their mother. He informed his father from the spot telephonically by using Virender''s phone. In cross-examination, he deposed that he did not know where was his father when he talked to him from Virender''s phone. His father was having mobile phone.

PW9 Babli Sharma, deposed that she had been living at the house of her maternal grand mother for the last about 4-5 years because the accused used to tease her. She told about this to her mother. She talked to the accused, but the accused took quarrel with her mother. According to her, due to this reason, she was sent by her mother to the house of her maternal grand mother. In cross-examination, she admitted that she was sent by her mother to her maternal grand mother''s house without consulting her father.

PW10, Devinder Sharma, deposed that Nirmala was his sister. Babli, daughter of Nirmala, had been living with them for the last four years. His sister never complained about the accused. He could not say why Nirmala dropped Babli at their house. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that he could not say his sister dropped Babli at their house for the reason that the accused was keeping bad eye on her. In cross-examination conducted by the learned counsel for the accused, he admitted that he had disclosed to the police that they brought Babli to our house because marriage of their sisters had taken place.

PW11, Amar Singh, deposed that on 27.6.2008, he went to Piran. Some ladies told him that a dead body was noticed at Dhang. When he returning from Piran, Roop Dutt Sharma, who was Vice President, Balog Panchayat, met him at Janedghat. He talked to him about the dead body. He made a telephonic call to the police. He was also declared hostile.

PW12, Kapil Thakur, deposed that on 26.6.2008, he was travelling by HRTC bus from Chail to his village Balog. Ramesh Chand, Medh Ram and Nirmala also boarded the same bus. The bus reached near Balog Ghati at about 7.15 P.M.. At Balog Ghati, he, Medh Ram, Ramesh, Nirmala, Raju and his wife got down from the bus. All of them went on foot upto transformer. Thereafter, Nirmala went to other way and they went in other direction. Nirmala was carrying bags containing goods. In cross-examination, he deposed that on 28.6.2008, he was called by the police. He did not know how police came to know that he was travelling by the bus. All of them, who got down from the bus at Balog Ghati, were called by the police. He did not have any proof with him to show that he was travelling by bus on 26.6.2008.

PW13 Randhir, deposed that on 27.6.2008, at the instance of the police, he visited ''Khad'' near Balog and took photographs, Ext.PW13/A-1 to Ext.PW13/A-4.

PW14, Dr. Piyush Kapila, deposed that he conducted the post mortem on the body of the deceased. He issued post mortem report, Ext.PW14/D. According to his opinion, the deceased died as a result of asphyxia secondary to ligature strangulation homicidal in nature. The probable time which elapsed between injury and death was immediate and between death and postmortem was around 36 to 48 hours.

PW15 Ridku Ram deposed that he has been working Monument Attendant in Taradevi Temple for the last 10 to 12 years. As per the orders of the Deputy Commissioner, Shimla, two Home Guards used to remain on duty in the temple from 9.00 A.M. to 5.00 P.M. for the last 2-3 years. Vishnu Dutt, home guard joined duty there in mid of June 2008, while the other home guard, Nand Lal was already on duty there. On 24.6.2008, Vishnu Dutt left the temple at 5.00 P.M. informing the Cook Prem Chand that he was going to village Sari. Vishnu Dutt came to attend the duty on 25.6.2008 at 9.00 A.M.. On 25.6.2008, he performed his duty during day. He stayed in the temple complex during night. At about 7.00 P.M., he came to his room and watched cricket match of India vs. Hong Kong on television. He left his room at about 10.30 or 11.00 P.M.. On 26.6.2008, he again came for his duty. On 26.6.2008, again there was match between India vs. Pakistan. He left his room at about 10.30/11.00 P.M.. He had come to his room at about 6.30/7.00 P.M.. He stayed in the temple complex during that night. On 27.6.2008, at about 12.30 P.M., he left the temple informing him that he would first go to Shogi to deposit telephone bill and then Shimla to the home guard''s office. In cross-examination, he deposed that it was not a part of his duty to supervise home guards. The home guards were not supposed to report him while coming to their duties.

PW16, Nand Lal, deposed that he had been working as home guard in Taradevi Temple since 1.3.2009. He had brought with him attendance register. Their duty hours were from 9.00 A.M. to 5.00 P.M.. His house was 8 kms away from Tara Devi Temple. On 26.6.2008, he and Vishnu Dutt were on duty in the temple complex. After 5.00 P.M., he went to his house, while Vishnu Dutt stayed there. On 27.6.2008, Vishnu Dutt was on duty till 12.00 noon. Thereafter, he went to deposit telephone bill at Shoghi. He had handed over to him attendance detail made from the attendance register, which he was to carry to Home Guard Office, Shimla after visiting Shoghi. On 27.6.2008, at about 8.30 P.M., he received a telephonic call from Vishnu Dutt. He told him that his wife was murdered. He produced copy of the attendance register, Ext.PW16/A to the Police. In cross-examination, he deposed that there was no signature of Platoon Commander in the register. He volunteered that Platoon Commander used to sign only when they were on training. The register is checked by the SDM only whenever he comes on inspection. On the leaf of the attendance register for 25.6.2008 and 26.6.2008, names of home guards were written by him. On the leaf of the attendance register of 27.6.2008 and 28.6.2008, names of the home guards were written by Vishnu Dutt. They used to write names of home guards in advance. The register used to remain in the custody of home guards on duty.

PW17, LHC Suresh Kumar, proved entry No. 8 made in daily diary vide Ext.PW17/A.

PW18, Constable Bihari Lal, deposed that on 27.6.2008 he handed over Ruqua to MC Madan Lal at Police Station Dhalli at 11.30 P.M.

PW19, HC Dalip Singh, deposed that he got conducted post mortem on dead body of Nirmala Devi in IGMC Shimla and thereafter, the dead body was handed over to Vishnu Dutt. On 3.7.2008, he visited the hospital. The doctor handed over to him six parcels sealed with seal "DKG". The sample of seal was also handed over to him. He deposited the same with MHC Shiv Kumar, Police Station Dhalli the same day.

PW20, HC Shiv Kumar, deposed that on 2.7.2008, SI Shashi Pal deposited with him a parcel sealed with five seals of letter "A", another parcel sealed with seal "H" and plastic bag containing a jersey and some currency. He made entry to this effect at Sr. No. 14 of the malkhana register, Ext.PW20/A. On 3.7.2008, HC Dalip Singh deposited with him six parcels sealed with seal "DKG". He proved entry, Ext.PW20/B and Ext.PW20/C made by him in the malkhana register qua case property. He further deposed that on 18.12.2008, Constable Rajinder Kumar No. 445, Police Post Junga deposited with him case property and the result of FSL. He handed over the result to the SHO and kept the case property with him.

PW21, Inspector Manohar Lal, deposed that he prepared the challan after receiving the FSL report, Ext.PW21/A.

PW22, Constable Parma Nand, deposed that on 10.7.2008, MHC Shiv Kumar handed over to him ten parcels for being taken to FSL Junga. He deposited the parcels at FSL Junga vide R.C. No. 105/2008 and obtained receipt on the RC. He handed over to the RC to the MHC.

PW23, SI Chaman Lal, deposed that on 27.6.2008, at about 11.30 P.M., he received statement Ext.PW1/A, on the basis of which FIR Ext.PW23/A was lodged.

PW24, Rajinder Singh, deposed that he obtained the FSL report and parcels and deposited the same with MHC, Police Station Dhalli.

PW25, SI Shahi Paul, deposed that on 27.6.2008, MC, Police Post telephonically informed at Police Station Dhalli that the dead body of a lady was found lying in Balog Ghati. He proceeded to the post in the official vehicle accompanied by Constable Sanjeev Kumar. ASI Sakir Khan, some police officials, Vice President Roop Dutt Sharma, Kewal Ram, Vishnu Dutt etc. were present on the spot. It was raining. It was dark. The dead body was examined in the torch light. At about 2.30 A.M., Constable Bihari Lal handed over to him case file from Police Station Dhalli. He recorded statement of Bihari Lal under Section 161 Cr.P.C.. In the morning photographs of the dead body were taken. The dead body was sent to the IGMC Shimla for post mortem examination through HC Dalip Singh and Constable Rajinder Singh. The spot map, Ext.PW25/A was prepared. A blood stained stone was found on the spot, which was sealed in a separate parcel with eight seals of letter "H" and taken into possession vide memo, Ext.PW1/B. According to him, on the dead body two plastic envelopes were found lying, one was containing shoes, whereas another was containing comb, bindi, pen etc.. The boots were stained with blood. These were sealed in separate parcel with five seals of letter "A" and taken into possession vide memo, Ext.PW1/C. On 6.7.2008, at Janedghat, Forest Check Post, accused made a disclosure statement to him that he killed Nirmala by strangulating with dupatta. On 7.7.2008, the accused led the police party from Police Post Junga to identify the place of occurrence. After their arrival at Balog Ghati, he deputed Constable Bihari Lal to bring some respectable persons of locality. He brought with him BDC member Dharam Singh, Ex-Ward member Rama Nand. They all proceeded towards the spot of occurrence. On the spot the accused identified the place of occurrence. The accused demonstrated how he killed the deceased. He prepared identification, memo, Ext.PW6/A. thereafter, he prepared site plan, Ext.PW6/B. The accused took them to his cow shed in village Thang. The accused after opening the cow shed, took out a plastic envelope from the sleepers. It was containing T-shirt and lower. On the T-shirt, 2-3 long hair were found stuck. The hair were put in a match box. It was wrapped in a piece of cloth and sealed with three seals of letter "H". T-shirt, lower and bag were sealed in separate parcels with eight seals of letter "H". Both parcels were taken into possession vide memo, Ext.PW6/C. On 8.7.2008, he deposited the case property with MHC Dhalli in the same condition. In cross-examination, he admitted that he wrote a letter to the S.P., Shimla, wherein it was stated that lie detection test of Vishnu Dutt should be done. He also admitted that S.P. further wrote to CBI for getting the lie detection of Vishnu Dutt done. He admitted that he wrote a letter to the Nodal Officer to collect call details of Vishnu Dutt''s mobile phone and the location of the towers. According to him, the purpose behind the lie detection test was to know about the relations between Vishnu and his wife. Before this, he never wrote to S.P. for getting a lie detection done in any case. The information sought from the Nodal Officer was not received and the accused had confessed his guilty. On 30.6.2008, on interrogation, Laiq Ram disclosed that he met Nirmala in lower bazaar Shimla at about 12.00/12.30 P.M. on 26.6.2008. According to him, Laiq Ram was not cited as witness. It had not come in his interrogation that the accused was keeping bad eye on sister of Sandeep or that the accused had been quarrelling with the deceased and Sandeep had seen the accused going to Balog or changing his clothes. He also associated Babli during investigation on 26.6.2008. She did not disclose to him that the accused was keeping bad eye on her. According to him, on search of the person of Nirmala, tickets of Shubham Bus were found. No tickets of HRTC bus were found. According to him, he did not carry out investigation whether Vishnu Dutt came to Home Guard Head Quarter, Shimla along with Dak on 27.6.2008 or that he deposited telephone bill on that day at Shogi.

The case in hand is based on circumstantial evidence. It was necessary for the prosecution to prove that the complete chain of circumstances points out towards guilt of the accused and if one element of the chain is broken, conviction of the accused cannot be recorded. It is also well settled that in a case of circumstantial evidence, motive also plays a very important role.

In the present case, motive, as per the prosecution, to kill the deceased by the accused was that he was keeping bad eye on her daughter, PW9 Babli Sharma. The deceased had sent her daughter to the house of her maternal grand mother. According to Babli Sharma, she had been living at the house of her maternal grand mother for the last about 4-5 years because the accused used to tease her. She told about it to her mother. Her mother talked to the accused, but he took up quarrel with her. She was sent by her mother to the house of her maternal grand mother. PW10, Devinder Sharma, brother of the deceased, testified that PW9 Babli had been living with them for the last four years. According to him, the deceased never complained to him about the accused. In cross-examination conducted by the learned Public Prosecutor, he deposed that he could not say that the deceased dropped Babli at their house because the accused was keeping bad eye on her. PW9 Babli Devi started living with her maternal grand mother about 4-5 years back when she was only 14 years old. It is not believable that the accused, who was his real uncle, would keep bad eye on her, when she was only 14 years old. It has come in the statement of PW9 Babli Sharma she was sent by her mother to her maternal grand mother''s house without consulting her father. PW1 Roop Dutt Sharma, in his cross-examination, categorically stated that Vishnu Dutt once or twice told him that character of the deceased was not good. They often used to quarrel. He also admitted that the deceased used to leave house of Vishnu Dutt without informing him. She used to remain away for days together and due to this, relations between them were not cordial. According to him, one Liaq Ram told him on the day of ''Kriya'' of husband of the deceased that he had seen the deceased with someone in Shimla on 26.6.2008. Liaq Ram also told him that he also informed about this fact to Vishnu Dutt the same day. He further deposed that PW9 Babli Sharma, daughter of Vishnu Dutt, was living in the house of her maternal uncle for the last 3-4 years. She was sent by Vishnu Dutt to her maternal uncle''s house otherwise she would be of the same character as the deceased.

The evidence, which emerges from the statement of PW1 Roop Dutt Sharma is that in fact, Vishnu Dutt, husband of the deceased, was suspecting on her character. It was for this reason, he sent his daughter PW9 Babli Sharma to her maternal grand mother''s house. Vishnu Dutt also committed the suicide after death of the deceased. PW25. SI Shahi Paul, in his cross-examination, categorically admitted that he had written a letter to the S.P., Shimla, requesting him for getting done lie detection test of Vishnu Dutt. He also admitted that the S.P. also wrote a letter to CBI for getting the lie detection of Vishnu Dutt done. He admitted that he wrote a letter to the Nodal Officer to collect call details of mobile phone of Vishnu Dutt and the location of the towers. He explained that the purpose behind the lie detection test was to know about the relations between Vishnu and the deceased. PW15 Ridku Ram, was working as Monument Attendant in Taradevi Temple for the last 10 to 12 years. In his cross-examination, he stated that it was not a part of his duty to supervise home guards and the home guards were not supposed to report him while coming to their duties. PW16, Nand Lal, deposed that on 26.6.2008, he and Vishnu Dutt were on duty in the temple complex. After 5.00 P.M., he left for his house, while Vishnu Dutt stayed in the temple complex. According to him, on 27.6.2008, Vishnu Dutt was on duty till 12.00 noon. Thereafter, he went to deposit telephone bill at Shoghi. He had handed over to him attendance details of the attendance register for being taken to Home Guard Office, Shimla after visiting Shoghi. He categorically stated in his cross-examination that the register was not signed by the Platoon Commander. According to him, the Platoon Commander used to sign only when they were on training. The register was to be checked by the SDM only whenever he was to come on inspection. The register did not bear signature of the SDM. He deposed that he had written the names of the home guards on the leaf of the attendance register for 25.6.2008 and 26.6.2008, whereas on the leaf of the attendance register for 27.6.2008 and 28.6.2008, names of the home guards were in the hand of Vishnu Dutt. They used to write names of home guards in advance. The attendance register used to remain in the custody of home guards on duty. PW25, SI Shashi Paul, admitted that he did not visit Tara Devi on 28th, 29th and 30th of June, 2008.

The police did not collect the details of phone calls of Vishnu Dutt and the location of towers, though PW25 SI Shashi Paul admitted that he had written a letter to the Nodal Officer to supply the details of phone calls of Vishnu Dutt and the location of the towers. The prosecution has not conclusively proved that Vishnu Dutt was on duty at Tara Devi Temple at the relevant time. According to PW1 Roop Dutt Sharma, one day prior to death of Vishnu Dutt, one Sewak Ram met him in Village Dhang and told him that Vishnu Dutt disclosed to him that he had killed his wife Nirmala and his brother accused Pawan Kumar was innocent. On that very day, Prakash also met him and told that Vishnu Dutt also disclosed to him that he would confess his guilt and would go to jail and he requested Prakash to take his children with him. Since Vishnu Dutt was suspecting fidelity of his wife, his involvement in the crime cannot be overruled, coupled with the fact that he committed suicide after the murder of the deceased. The explanation given by the prosecution was that he could not bear grief of his wife. This explanation is not at all acceptable in view of the alleged character of his wife.

Now, we will advert to the manner in which the site of occurrence was identified and the recoveries were effected at the instance of the accused.

PW4, Bhagat Ram, deposed that the Police called them. The Police told them that the accused murdered the deceased by strangulating her with ''Dupatta''. The police also asked from the accused whether he committed murder. The accused replied in affirmative. Thereafter, nothing happened in his presence. He was declared hostile. According to PW4, Bhagat Ram, on that day, he proceeded from Janedghat at about 4.00/5.00 P.M. to his village Kumhali. There was a Forest Check Post at Janedghat, where some forest officials always used to remain on duty. The house of Babu Ram was adjoining to his house in village Kumhali. However, according to PW5 Babu Ram, on 6.7.2008, a meeting of the Panchayat was to be held at Janedghat. His wife was President of Panchayat. They proceeded at 10.00 A.M. from their house towards Janedghat. The meeting was over by 2.30 P.M.. It was raining. Thereafter, they sat at a shop for about 30 to 45 minutes. At about 3.30 P.M., he and Bhagat Ram proceeded towards Village Janedghat. It was raining heavily. They reached Check Post. They remained at the Check Post for about half an hour. According to him at about 4.00/4.15 P.M., they proceeded from the Check Post to their village. Police recorded his statement. He did not tell the Investigating Officer that his wife Pushpa came there and after taking her ''Chunni'', the accused demonstrated the police how he killed Nirmala. He told the police that the accused disclosed that the clothes were concealed by him in his ''Obra''. However, according to PW4, Bhagat Ram, they were called by the police, whereas as per statement of PW5 Babu Ram, they were in the Check Post in order to save themselves from the rain and the police officials met them there. It casts doubt the manner in which Ext.PW4/A was recorded. According to PW6, Dharam Singh, on 7.7.2008, the accused led the police party to the place where he murdered the deceased. The police prepared the map. The police prepared two other documents. Their signatures were obtained. He identified his signature on Ext.PW6/A and Ext.PW6/B. Thereafter, the police took the accused to village Dhang. The accused got recovered before the police a plastic bag from an ''Obra'' of goats kept under a sleeper. The bag was containing a red coloured T-shirt and a blue coloured lower. There were 3-4 long hair on the T-shirt. The articles were sealed in separate parcels with seal impression "H". According to PW7, ASI Shakir Khan, on 6.7.2008, he along with SHO was present in the Check Post, Janedghat. The accused was in the police custody. At that time, Babu Ram and Bhagat Ram also came inside the Check Post in order to save themselves from the rain. The SHO told them that the accused had committed the murder. The accused disclosed to the SHO in their presence that he killed the deceased by strangulating her. Thereafter, he demonstrated the manner in which the deceased was killed. The accused produced from the ''Obra'' a polythene bag, which was kept concealed underneath the sleepers. It was containing a T-shirt and lower. PW1 Roop Dutt Sharma, deposed that father of deceased Babu Ram told him that in the morning, two police officials, who were not in uniform, came to him and demanded from him clothes of Vishnu Dutt. He gave the clothes. The same were kept in the cowshed by the police officials. Babu Ram did not tell him that they were Constables, Head Constables or ASI, though he told him that they were police officials as they had been coming to village earlier. It casts doubt the manner in which the recovery has been made from the ''Obra'' by the police. Statement made before PW4 Bhagat Ram and PW5 Babu Ram by the accused cannot be treated as an extra judicial confession. The alleged statement has been made in the presence of the police officials. This cannot be termed to be voluntary in nature.

Their Lordships of Hon''ble Supreme Court in Sk. Yusuf Vs. State of West Bengal, have held that extra-judicial confession is a very weak type of evidence and requires appreciation with great caution. The extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of crime. Their Lordships have held as under:-

Both, Nurul Islam (PW.11) and Ali Hossain (PW.13) are chance witnesses as they alleged to be in Shyamsundar Bazar on that date for marketing and none of them had regular business in that bazar. The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See: State of Rajasthan Vs. Raja Ram, ; and Kulvinder Singh and Another Vs. State of Haryana, .

Their Lordships of Hon''ble Supreme Court in Sucha Singh vs. State of Haryana (2013) 14 Supreme Court Cases 552 have held that extra-judicial confession is a direct piece of evidence, but this evidence should not be used as sole ground of conviction. It may be used as a corroborative piece of evidence. Their Lordships have held as under:-

"8. There is also no merit in the contention of the learned counsel for the appellant that the extra-judicial confession alleged to have been made by the appellant to PW-8 ought not to have been believed. In Sahoo Vs. State of Uttar Pradesh, , this Court has held that a confession is a direct piece of evidence but before such evidence can be accepted, it must be established by cogent evidence what were the exact words used by the accused and even if the confession was established, prudence and justice demand that such evidence should not be used as the sole ground of conviction and it may be used as a corroborative piece of evidence. As we have already noticed, PW-8 has stated that on 05.02.1997, the appellant came to his residence and told him that with a bad intention he had murdered the deceased and he had brought the mule cart to village Kamalpur. This was a clear confession made by the appellant to PW-8. That apart, this extra-judicial confession only corroborates the other circumstances which establish the guilt of the appellant beyond reasonable doubt."

Learned trial court while convicting the accused has relied upon one circumstance that the hair of the deceased were matched with hair found on the T-shirt of the deceased. The deceased died on 26.6.2008 and the recovery of T-shirt was made on 7.7.2008. It is not believable that hair would remain stuck to the T-shirt, that too for more than ten days. The recovery of T-shirt along with lower is also doubtful, as discussed hereinabove, the manner in which these were recovered on the basis of disclosure statement made by the accused before PW4 Bhagat Ram and PW5 Babu Ram. In view of this, report of the FSL, Ext.PW21/A, has wrongly been relied upon by the learned trial court for convicting the accused.

The prosecution has failed to prove that the deceased travelled by HRTC to her village. How, the police came to know that PW12 Kapil Thakur was also travelling in the same bus is not understandable. According to PW25 SI Shahi Paul on search of the person of deceased, tickets of Shubham Bus were found. No tickets of HRTC bus were found. Rather PW12, Kapil Thakur, admitted that he had no proof to establish that he was travelling by HRTC bus on 26.6.2008. Even he did not know how the police came to know that he was travelling by HRTC bus on 26.6.2008.

The cause of death of the deceased as per opinion of PW14 Dr. Piyush Kapila was asphyxia secondary to ligature strangulation homicidal in nature. The probable time, which elapsed between injury and death was immediate and between death and postmortem was around 36 to 48 hours. According to PW14, Dr. Piyush Kapila, few hair were presented for cross match as well as sample of blood for the same purpose along with other articles which were found on the body. In the post mortem report, Ext.PW14/D, PW14 Dr. Piyush Dapila found as many as nine injuries on head and face of the deceased. He noticed 14x8 cms avulsed laceration with ragged margins starting from lateral angle of left eye and lower end reaching up to lobule of the left ear and upper end reaching 8 cms behind the forehead. Skull bone was visible and clotted blood was also present along with grass and weeds. There was 9x4 ms laceration on the left side of forehead, bone deep just above eyebrow on left side. The clotted blood was present. These serious injuries could not be caused by dragging the deceased, as projected by the prosecution. All the injuries were found to be ante mortem. He also noticed the injuries on neck and ligature marks. He also noticed gross contusion of lower back, reddish including right lumbar area measuring 25x12 cm, 15x4 cms contusion on right side of upper back in scapular area and two grazed abrasions reddish, upper measuring 3 x 1/2 cms and lower 8 cms on left side of posterior auxiliary line. The skull had a liner fracture, which reached upto anterior cranial fossa. Statement of PW3 Satya Dutt Sharma does not support the case of the prosecution. PW8 Sandeep Singh, testified that his mother had told him not to visit house of the accused and despite that he visited the house to see cricket match. He even went to the house of the accused at 8.30 P.M. There was no occasion for him to visit house of the accused in case he was keeping bad eye on his sister, Babli Sharma.

Their Lordships of Hon''ble Supreme Court in Dandu Jaggaraju Vs. State of A.P., have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. Their Lordships have held as under:-

It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story.

Their Lordships of Hon''ble Supreme Court in Pudhu Raja and Another Vs. State, rep. by Inspector of Police, have held that the motive assumes great significance and importance in case of circumstantial evidence and absence of motive puts court on its guard and causes it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not taken the place of proof. Their Lordships have held as under:-

Furthermore, in such a case, motive assumes great significance and importance, as the absence of motive puts the court on its guard and causes it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. The evidence regarding existence of motive which operates in the minds of assailants is very often, not known to any other person. The motive may not even be known, under certain circumstances, to the victim of the crime. It may be known only to the accused and to none other. It is therefore, only the perpetrator of the crime alone, who knows as to what circumstances prompted him to adopt a certain course of action, leading to the commission of the crime.

Their Lordships of Hon''ble Supreme Court in Rishi Pal Vs. State of Uttarakhand, have held that while motive does not have a major role to play in cases based on eye witness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have further held that essence of requirements that must be satisfied in cases resting on circumstantial evidence is that not only should circumstances sought to be proved against the accused be established beyond reasonable doubt, but also that such circumstances from so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. Their Lordships have held as under:-

"14. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs. 15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram Vs. State of Maharashtra, , Dr. Sunil Clifford Daniel Vs. State of Punjab, , Pannayar Vs. State of T. Nadu by Inspector of Police, . Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.

It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between ''may have'' and ''must have'' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."

The prosecution has failed to prove the case against the accused. The trial court has convicted the accused on a mere superfluous approach without in-depth analysis of the relevant facts.

Accordingly, in view of the discussion and analysis made hereinabove, the appeal is allowed and the impugned judgment dated 27.5.2009 rendered by the learned Additional Sessions Judge, Shimla in Sessions Trial No. 1-S/7 of 2009 is set aside. The accused is acquitted of the charge under Section 302 of the Indian Penal Code. The fine amount, if any deposited by the accused is ordered to be refunded to him. The appellant, who is in jail, be released forthwith, if not required in connection with any other case.

The Registry is directed to prepare the release warrant of the appellant and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.