State of Himachal Pradesh vs Neelam Kumar

Justice Sanjay Karol, Judge

For an offence, which is alleged to have been committed during the intervening night of 1st and 2nd December, 2005, accused was put to trial. In terms of judgment dated 8th March, 2007, passed by Sessions Judge, Bilaspur, in Sessions Trial No. 16 of 2006, titled as State of Himachal Pradesh versus Neelam Kumar, accused stands acquitted of the charged offence. It is the case of prosecution that on 3RD December, 2005, Shri Shiv Pal (PW-15) telephonically informed the police that dead body of Vijay Kumar was lying in a Nullah near Kainchi Mor. Entry in the Rojnamcha to this effect was made by MC Shri Baldev Raj (PW-19) at Police Station, Barmana. Inspector Shri Shamsher Singh (PW-20), who was Incharge of the said Police Station, proceeded to the spot alongwith ASI Shri Ashok Kumar, HC Shri Rattan Chand and HHC Shri Tej Singh (all three not examined). On the spot, he recorded statement (Ex. PW1/A) of Shri Nand Lal (PW-1), brother of the deceased, u/s 154 of the Code of Criminal Procedure. Ruka was carried to the Police Station by HC Shri Rattan Chand (PW-6), on the basis of which FIR No. 257/05, dated 3rd December, 2005 (Ex. PW-6/B), u/s 302 and 34 of the Indian Penal Code was registered. Investigation revealed that deceased Vijay Kumar and accused were good friends. On 1st December, 2005 at about 3.30 p.m. accused came to the house of the deceased, who was residing with his brother Shri Nand Lal (PW-1) and father Shri Gulaba Ram (PW-4). Accused asked the deceased to accompany him in connection with some election meeting. Accordingly deceased accompanied the accused. At about 5.30 p.m., deceased and the accused were seen by Shri Dandu Ram (PW-10) in the clinic of one Dr. Kiran alongwith Shri Babu Ram (not examined), Shri Roshan Lal (PW-17) and Shri Kali Dass (PW-14). Thereafter, all these persons went to Manju Dhaba, where they consumed alcohol and were seen by Shri Pawan Kumar (PW-13), Shri Sarwan Kumar (PW-16) and Shri Roshan Lal (PW-17). Since the deceased did not return home same night, Shri Nand Lal (PW-1) enquired about his whereabouts from the accused and was told that the deceased had left for his house. Shri Nand Lal (PW-1) made enquiries about the deceased and was informed by Shri Dandu Ram (PW-10) about the events which transpired the previous day. On the spot, police recovered the dead body, after preparing inquest report (Ex. PW-1/B) and getting the spot photographed. Postmortem of the dead body was conducted by Dr. N.K. Sankhyan (PW-2) at the Regional Hospital, Bilaspur who, on the basis of report (Ex.PW-2/C) of the Forensic Science Laboratory, issued postmortem report (Ex. PW-2/B). Shri Nand Lal suspected hand of various other persons, including the accused, in the commission of the crime. Police also recovered samples of hair allegedly belonging to the accused and the deceased. During the course of investigation accused was arrested and on 7th December, 2005 he made disclosure statement (Ex. PW-3/A) in the presence of Shri Dara Singh (PW-3) to the effect that he had killed the deceased with stone (Ex. P-1), which was also recovered by the police on his asking. Sample of hair of the accused matched with the hair found near the dead body of the deceased. Investigation revealed complicity of the accused to the alleged crime. Hence, challan was presented in the Court for trial.

Accused was charged for having committed 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 twenty 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 of innocence and false implication.

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 Shri Ajay Kumar, Senior Advocate, assisted by Mr. Dheeraj Vashist, 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.

There is no dispute about the identity of the body of the deceased. Dead body, postmortem of which was conducted by Dr. N.K. Sankhyan (PW-2), belonged to deceased Vijay Kumar. As per the version of doctor, several serious and multiple injuries were found on the dead body. In Court, doctor has opined the cause of death to be "due to combined affect of hypovolumic shock and antemortem injuries to the vital organs, i.e. brain, lungs and liver after consuming alcohol". Now, significantly the doctor in his cross-examination admits that "If a person fall from a considerable height and rolled down then all these injuries are possible after taking huge quantity of liquor. In the instant case keeping in view the quantity of the liquor consumed by the deceased, he may have fall after having a slip from the top of the steep gradient".

The fact that there is a deep gorge and steep fall at the spot from where the dead body was recovered, has come in the unrebutted testimony of relatives of the deceased, the Investigating Officer and the owner of the saw-mill Shri Sunka Ram (PW-7). Hence, possibility of the deceased suffering the injuries by slipping and falling down from the spot under the influence of liquor cannot be ruled out.

In the instant case, there is no direct evidence of complicity of the accused to the alleged crime. None has seen the accused hit the deceased with the stone or throw him down the cliff. Prosecution case primarily rests upon circumstantial evidence.

Now, in the instant case there are following three circumstances, which are heavily relied upon by the prosecution to show complicity of the accused to the alleged crime:

I) Disclosure statement (Ex. PW-3/A) made by the accused in the presence of Shri Dara Singh (PW-3) and Shri Dandu Ram (PW-10) and consequent recovery of weapon of offence, i.e. stone (Ex. P-1).

II) Recovery of sample of hair belonging to the accused near the dead body.

III) Deceased seen last in the company of accused and other persons while consuming liquor and thereafter the accused quarrelling with the deceased.

The law on circumstantial evidence is now 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,

We find that out of 20 witnesses examined in Court prosecution has tried to prove the aforesaid circumstances through the testimonies of Shri Nand Lal (PW-1), Shri Dara Singh (PW-3), Shri Gulaba Ram (father of the deceased) (PW-4), Shri Sunka Ram (PW-7), Shri Bishan Dass (PW-9), Shri Dandu Ram (PW-10), Shri Joginder Singh (PW-11), Shri Narender Kumar (PW-12), Shri Pawan Kumar (PW-13), Shri Kali Dass (PW-14), Shri Sarwan Kumar (PW-16) and Shri Roshan Lal (PW-17).

Unfortunately out of them PW-10, PW-11, PW- 12, PW-13 and PW-15 have not supported the prosecution case at all. They were declared hostile and cross-examined in Court by the Public Prosecutor, yet nothing fruitful could come out in favour of the prosecution. Even if testimonies of remaining independent witnesses were to be examined, we do not find that prosecution has been able to bring home the guilt of the accused to the alleged crime.

To begin with, we find that in the statement recorded u/s 154 of the Code of Criminal Procedure, Shri Nand Lal (PW-1) himself has stated that he "suspected" the hand of the present accused Neelam Kumar alongwith Shri Babu Ram, Shri Kali Dass and Shri Roshan Lal in the alleged crime. Now, police has not shown as to how complicity of persons other than the accused was ruled out by them. Significantly, PW-1 in Court states that he only suspected the hand of the accused in the alleged crime. Now, suspicion alone cannot be truth or a substitute for proof. In Court he does not specifically state that the accused murdered the deceased or that other persons so named by him were not involved at all. This witness further states that police took sample of hair of the deceased much prior to recording of his statement, u/s 154 of the Code of Criminal Procedure, which also were not sealed in his presence. This only shows how police is conducting the investigation. He admits that the accused and the deceased were good friends.

We may also observe that the Investigating Officer (PW-20) has deposed that he had sealed the sample of hair of the accused with seal impression ''K'', but this seal has not been produced in the Court. That apart, this witness has deposed that the hair found near the body of the deceased were recovered at about 11.30 a.m., after statement of PW-1 was so recorded, which version stands belied by PW-1 himself, according to whom the dead body stood recovered by 11 a.m. and sample of the hair were taken prior to the recording of his statement. Further, according to the Investigating Officer, sample of hair recovered were 6-7 in number, whereas according to PW-1 they were approximately 100 in number.

Shri Gulaba Ram (PW-4), who is father of the deceased, in Court states that he subsequently learnt that the deceased and the accused had quarrelled with each other at Kainchi Mor in the night. Now, he does not name the person who disclosed this fact to him. It is a hearsay Also in cross-examination, he states that he had sent a letter to Hon''ble the Chief Minister of the State regarding his apprehension that "two-three persons" were involved in the killing of his son and such act was not that of a single person. He does not disclose that he had named the present accused in such letter. He admits that when said letter eventually reached the SHO, he was called and pushed by him and told that his case was spoiled. He admits that till date he has good relations with the family of the accused and has also been organizing all their functions. Hence, false implication of the accused to the alleged crime cannot be ruled out, more so for the reason that this witness specifically does not state that accused was involved in the crime.

Quarrel necessarily does not mean commission of crime of a murder. We find that this witness has also stated something which is beyond the record. According to him, on 2nd December, 2005, he made a report to the SHO, regarding missing of his son. Now, where is this report? Why has it not been placed on record? Is he telling the truth? These questions have not been answered by the prosecution. We find the version of lodging the report on 2nd December, 2005 not to be correct, for the reason that it does not find mention in statement Ex. PW-1/A, which was recorded on 3rd December, 2005. Also, it is not the case of PW-1 that any such report was lodged with the police. This has rendered their version not to be reliable and trustworthy.

Thus, these two witnesses of the prosecution have not been able to establish, beyond reasonable doubt, the guilt of the accused. In this backdrop, we do not find it fruitful to minutely discuss the testimony of the hostile witnesses.

Coming to the correctness of disclosure statement, we find that Shri Dandu Ram (PW-10) has not supported the prosecution, but when we see the testimony of Shri Dara Singh (PW-3) itself, we find that even his version does not conclusively establish the guilt of the accused. According to PW-3, during interrogation accused made disclosure statement (Ex. PW-3/A) in the presence of Shri Dandu Ram and stone (Ex. P-1) was recovered at the instance of the accused. But, in cross-examination, we find that this witness, in his unrebutted testimony, has deposed that he was called to the Police Station by the SHO for giving evidence and the entire proceedings were written by "one constable who was in uniform and was of the rank of Head Constable. The statement was being dictated by the SHO". Now, this totally casts doubt about the genuineness/ correctness of the disclosure statement and recovery of weapon of offence.

We also find that stone (Ex.P-1) did not contain any blood stains at the time when it was taken into possession by the police. Doctor has opined that only some of the injuries were possible with the stone. But then possibility of all the injuries, which were sustained by the deceased, after falling and rolling down the cliff has not been ruled out.

With regard to the circumstance of recovery of hair of the accused, we find that Shri Bishan Dass (PW-9) has not supported the prosecution. In his unrebutted testimony, he has deposed that seizure Memo was not read over or explained to him by the police nor was the sample of the hair collected in his presence. In fact Shri Dandu Ram (PW-10), who is real brother-in-law of the deceased, has not supported the prosecution. His version with regard to recovery of hair is also to similar effect.

An attempt has been made to show that the accused had quarrelled with the deceased, after consuming liquor, which fact also stands denied by Shri Narender Kumar (PW-12) and Shri Kali Dass (PW-14).

Suspicion alone cannot be a ground for conviction and significantly in the instant case even the close relatives of the deceased suspected complicity of other persons against whom no investigation has been carried out. It appears that the accused has been falsely implicated on account of certain extraneous considerations.

There does not appear to be any motive on record for the accused to have committed the crime. Accused and the deceased were good friends, which fact has come on record through the unrebutted testimonies of his relatives.

Significantly, in this case doctor, in whose clinic the accused and the deceased were noticed, has not been examined.

As per the version of PW-1 deceased had left in the company of the accused for the purpose of election meeting. Prosecution has not been able to show that any such meeting was to take place on 1st December, 2005.

There is yet another disturbing factor in the instant case. Dead body was recovered on 3rd December, 2005 at 10 a.m. and postmortem was conducted only in the morning of 4th December, 2005 and that too at about 9.30 a.m. Now where did the dead body lie in between this period has not been sufficiently explained by the prosecution. The distance between the place where dead body was found and the hospital is just about 18 kms. None has deposed that the dead body was protected all this while.

Hence, in our considered view, prosecution has not been able to conclusively establish and prove the circumstances, as noticed herein earlier, linking the accused to the crime. It cannot be said that prosecution has been able to prove, beyond reasonable doubt, the fact that the accused had murdered the deceased. There is no clear, creditworthy, reliable, cogent, convincing and trustworthy evidence on record to prove the charged offence. 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., and State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , 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.