State of Himachal Pradesh vs Arun Kumar

Justice Sanjay Karol, Judge

For an offence, which is alleged to have been committed on the night intervening 30th November and 1st December, 2002, accused was put to trial. In terms of judgment dated 14th December, 2006, passed by Additional Sessions Judge, Sirmour District at Nahan, in Sessions Trial No.17-N/7 of 2003 titled as State of Himachal Pradesh versus Arun Kumar, accused stands acquitted of the charged offence. It is the case of prosecution that on 28th November, 2002, accused Arun Kumar came to the house of Shri Dev Singh (PW-1) and requested his son Sushil Kumar (deceased) to accompany him to attend the marriage ceremony at Dehradun. The deceased left in the company of the accused but never returned. On 1st December, 2002, at about 6.30 a.m., information was received on telephone, at Police Station Paonta Sahib, from an unidentified person, that a dead body was lying in river Yamuna near Yamuna Bridge. Constable Arun Kumar (PW-10) reduced the same into writing vide Rapt (Ex. PW-10/A). Said information was passed on to Additional SHO Dilshad Mohammed (PW-11), who alongwith ASI Madan Lal (PW-17) proceeded to the spot. Photographs of the spot were taken by Shri Gulsher Ali (PW-3). Inquest report (Ex. PW-7/A & Ex.PW-7/B) was prepared on the spot and the dead body was sent for postmortem, which was conducted by Dr. Sanjeev Sehgal (PW-9) at Civil Hospital Paonta Sahib. Postmortem report (Ex. PW9/B) was taken on record, which revealed that deceased had died due to injury caused on the liver with peritoneal haemorrhage and injury caused on the left forearm leading to haemorrhage and shock. It is also the prosecution case that accused came to the house of Shri Dev Singh (PW-1) and Shri Ramesh Kumar (PW-2) and told them that the deceased should be searched either at the hospital or at the police station. Accordingly, they went to the police station and the mortuary, and identified the dead body to be that of Sushil Kumar. Shri Devi Singh (PW-1) lodged complaint (Ex. PW-1/A), on the basis of which FIR No.440/2002, dated 2nd December, 2002 (Ex. PW-8/A), u/s 302 of the Indian Penal Code, was registered at Police Station Paonta Sahib. Accused was suspected of having committed the crime of murdering the deceased by throwing him from the bridge into the river and as such he was arrested. He was interrogated and investigation revealed his complicity to the crime. Hence, challan was presented in the Court for trial.

Accused was charged for having committed an offence, punishable u/s 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, prosecution examined as many as eleven witnesses and statement of the accused, u/s 313 of the Code of Criminal Procedure was also recorded, in which he took up the defence that "I used to work as a labourer with one mason named as Mehtab, who was carrying out some construction work in the house of one Kaushal, the Director of Joyti Finance Co., and I was assisting the aforesaid mason as a labourer from 28-112002 to 2nd December, 2002 and on 2nd December, 2002 the police picked me up from there to the police station. am innocent and a false case has been planted against me".

The Court below, after appreciating the material on record acquitted the accused of the charged offence. Hence, the present appeal.

We have heard Shri R.K. Sharma, learned Senior Additional Advocate General, assisted by Shri J. S. Guleria, learned Assistant Advocate General, on behalf of the State as also Ms Jyotsna Rewal Dua, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence placed on record by the prosecution. Having minutely examined the record, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is well reasoned and is based on complete and proper appreciation of evidence (documentary and ocular) placed on record. There is neither any illegality/infirmity nor any perversity in the same.

The fact that the deceased died on account of haemorrhage is not in dispute. The same stands established through the postmortem report (Ex. PW9/B) and the statement of Dr. Sanjeev Sehgal (PW-9). There is no eye witness to the crime. Prosecution case primarily rests upon the circumstantial evidence.

The law on circumstantial evidence is well settled. To base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Suspicion, however, grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh,

The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. Trimukh Maroti Kirkan Vs. State of Maharashtra,

In our considered view, defence taken by the accused stands probablized by the prosecution witnesses themselves. We have no doubt, in our mind, that the police has falsely implicated the accused in the case. Investigation was carried out by SHO Virender Kalia (PW-8) and the Additional SHO Dilshad Mohammed (PW-11). Significantly, PW-11 has deposed that it did not come out in his investigation that the accused murdered the deceased and then threw him in the river. Shri Virender Kalia (PW-8) states that he arrested the accused after complaint (Ex.PW-1/A) was lodged. Now significantly, Shri Devi Singh (PW-1), who lodged the report, in Court admits that the deceased and the accused were "good friends" and never had "any altercation". He admits that deceased was a drug addict, which fact also stands admitted by Shri Ramesh Kumar (PW-2) and Shri Surinder Singh (PW-4). Further, this witness has deposed that he suspected complicity of the accused in the crime only on the ground that both the accused and the deceased used to live together. Most crucially, PW-1 has deposed that "I do not now remember as to whether Ext.PW1/A was written by the police or somebody else. I do not know whether Ext.PW1/A was written at the instance of police or somebody else". Thus, from his testimony it is evidently clear that even though PW-11 did not find anything against the accused, but it appears that on the asking of PW-8, complaint was lodged. Also, in his examination-in-chief, PW-1 does not specifically state that accused murdered the deceased. All that he states is that the accused had wanted the deceased to accompany him to Dehradun and lateron told them that his body should be searched in the hospital or mortuary. We do not find his latter version to be true and inspiring in confidence. This we say so for the reason that he does not remember as to whether he had narrated this fact to the police or not.

As per the version of Shri Ramesh Kumar (PW-2), who is brother of the deceased, we find that his version is similar to that of PW-1, and even his testimony does not advance the case of prosecution. This witness categorically admits it to be correct that "nobody had seen my brother being murdered. It is also correct that who has murdered my brother is not known to us". It is not the prosecution case that he has falsely deposed in Court. This witness further admits that from 28th November, 2002 till 2nd December, 2002, accused continued to work as a labourer with one Shri Kaushal of Jyoti Finance of Paonta Sahib. Now, if this were true then obviously prosecution story that the accused had taken the deceased to Dehradun on 28th November, 2001 is proved to be false.

Prosecution has also tried to corroborate the version of Shri Dev Singh (PW-1) and Shri Ramesh Kumar (PW-2) through the testimony of Shri Surinder Singh (PW-4), who states that on 1st December, 2002 accused came to him and told him that body of the deceased should be searched either in the mortuary or near Yamuna Bridge. He further states that this was disclosed to the "Tai", i.e. the mother of the deceased. Significantly, "Tai" has not been examined in Court. This witness admits that police recorded his statement, 10-12 days after recovery of the dead body. Crucially, this witness admits it to be correct that he had told the police that dead body of the deceased was recovered on the bank of River Yamuna near the Bridge. He admits it to be correct that "the cause of the death of my brother was not known". He admits that his version that accused had asked him to search the dead body of the deceased in the mortuary or police station not to have been narrated to the police by him. Hence, there is exaggeration, embellishment and improvement in his testimony in Court. It appears that this witness has been introduced subsequently by the investigating agency.

Hence, in our considered view testimonies of the relevant prosecution witnesses, being totally uninspiring in confidence cannot be said to be trustworthy and reliable.

Thus, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt by leading clear, cogent, convincing and reliable piece of evidence so as to prove the charged offence. The principles laid down in Ramreddy (supra) and Trimukh (supra) cannot be said to have been established.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.