State of Himachal Pradesh vs Sh. Gurcharan Singh Alias Charanjit Singh Alias Channa

Dev Darshan Sud, J.—The State has appealed against the judgment of the learned Additional Sessions Judge, Solan, acquitting the respondents herein, who were charged for commission of offences under Sections 302,392,120B and 420 I.P.C. The prosecution case in brief is that both accused, who were residents of village Nadali, Police Station Plath, District Kapurthala (Punjab), committed the murder of Darshan Lal and Kulwant Singh. PW26 Inspector, Padam Chand was informed on telephone by an unknown person that there was a dead body lying under the culvert near Solan-Brewery. He entered this information in the daily diary report Ext. PW26/A and rushed to the spot along with a police party. There, to his surprise, instead of one he found two dead bodies under the culvert. He found the bodies wrapped in a blanket and tarpaulin. Those bodies were photographed and the photographs were proved as Ext.PW13/A to Ext.PW13/H; inquest report was prepared and proved as Ext.PW26/B and Ext.PW26/C. The personal search of the bodies was carried out and one receipt bearing No. 6353 Ext.PW26/D of the toll tax barrier was recovered from the dead body of one Sikh gentleman. Some slips Ext.PW26/E and Ext.PW26/D were also recovered. The bodies were sent for post mortem and then handed over to the Municipal Committee for cremation. The prosecution case is that the bodies were decomposed and could not be identified. After the receipt of post mortem report Ext.PW14/A and Ext.PW14/A-1, F.I.R. No. 33/93 Ext.PW26/H was registered.

The case of the prosecution is that PW25 ASI Sh. Gurdeep Singh was deputed to investigate the case who found that the accused had been seen on 14.2.1993 travelling towards Panchkula in truck No. HIA-6353 which was being driven by accused Gurcharan Singh and his co-accused Amrik Singh, was sitting with him. PW7 Amrik Singh, who was driver of truck No. HP-20-1481, started from Jharia coal fields loaded his truck with coal and proceeded towards Solan. On 14.2.1993 when he reached Solan Brewery, he saw the truck driven by Gurcharan Singh being unloaded. According to him, accused Gurcharan Singh helped him by providing assistance by pulling his truck with a tow chain on the steep incline. On 2.3.1993, the police received information that both accused have been arrested in Punjab at Kapurthala. They rushed there and obtained the custody of the respondents, who were accused for committing the murders. The case of the prosecution is based on a number of circumstances which according to it makes the chain so complete and impregnable that it leads to no other conclusion except the guilt of the respondents. These circumstances as urged by the prosecution are that:

Accused were last seen with truck No. HIA6353 and going towards Panchkula on 14.2.1993.

Owner of the truck Darshan Lal was last seen with truck HIA 6353 at Jharia on 12.2.1993 while loading coal along with PW7 Amrik Singh who also loaded his truck with coal. Darshan Lal deceased started for Solan earlier and when the truck reached at Solan Brewery the same was in possession of accused Gurcharan Singh being driven by him.

The accused received payment, committed theft, robbery and theft of truck.

Accused were arrested by the police of police station, Palath on 2.3.1993 at about 7.50 p.m. along with stolen truck.

The accused made disclosure statement leading to the discovery of weapon of offence.

Medical evidence, cause of death and the injuries sustained by the deceased and also the time of death of deceased.

False defence.

Adverting to the death of both the deceased Darshan Lal and Kulwant Singh, post mortem was conducted by PW15 Dr. L.B. Purohit on 21.3.1993, who found number of injuries on their bodies. The factum of death is not disputed.

Adverting to the first circumstance, the learned trial Court holds that the circumstance urged is that truck No. HIA-6353 was last seen coming from Kalka and going towards Panchkula. To prove this fact, PW1 Hardip Singh has been examined. He stated that on 14.2.1993 at about 4 p.m., he was returning to his village from Surajpur. He saw truck No. HIA 6353 coming from Kalka going towards Panchkula which was being driven by accused Gurcharan Singh. He was standing near the chowk (cross road) at Punchkula. He saw the accused Gurcharan Singh alias Channa driving the vehicle. He thought that the truck was going to Nalagarh and, therefore, he signalled it stop so that he could ask for a lift. The driver did not respond and drove away. He says that during those days Kulwant Singh deceased was the driver of the truck. He was not known to Gurcharan Singh accused. In cross examination, he says that at the time when his statement (Ext.DA) u/s 161 Cr.P.C. was recorded, he did not know the name of the accused Gurcharan Singh alias Channa and as such he did not mention it in his statement. Besides that, he saw another person sitting in the truck which fact he did not disclose to the police. Head Constable Gurdip Singh told him about the name of Gurcharan Singh alias Channa about fifteen days prior to the date when the evidence was recorded. He says that he had been visiting the truck operators Union Nalagarh, where two trucks of his brother were attached and had seen there Gurcharan Singh alias Channa. He did not pay any attention to the fact as to whether Kulwant Singh was present in the truck or not. The evidence of this witness was rejected by the learned trial Court after detailed consideration holding that in cross-examination, he stated that when his statement was recorded by the police, he did not know the name of the accused Gurcharan Singh. He also admitted that he was not acquainted with the accused persons. The Court holds that no identification parade was conducted by the police to have the accused identified from this witness. His evidence is also to the effect that he did not recognize the second accused sitting in the truck. In these circumstances, the statement was not worth believing and the facts seem to have been cooked up. We concur in the manner in which the learned trial Court has appreciated his evidence.

The second circumstance which was central to the prosecution case is based on the evidence of PW7 Amrik Singh. This witness states that he is the owner of truck No. HP-20-1481 and he along with Darshan Lal (deceased) driver of truck No. HIA-6353 loaded coal in Jharia in their respective trucks and started journey for Solan. The deceased proceeded earlier in point of time than this witness. On 14.2.1993 when he reached Solan Brewery, truck of Roshan Lal (sic. Darshan Lal) was being unloaded. At that time, he noticed that the accused Gurcharan Singh was the driver of this truck. He says that he took assistance from Gurcharan Singh, (who was driving truck No. HIA-6353) for having his truck pulled by tow chain. He says that he enquired about Darshan Lal and was informed by the accused that he (deceased) had gone to meet his brother. Prima facie, this would be a very important circumstance linking the accused with the offence. However, when considered with the evidence of PW8 Ramesh Chand, we cannot find that his evidence can be accepted.

PW8 Constable Ramesh Chand has produced register (Ext.P-16) to prove that on 13.2.1993 truck No. HIA-6353 was recorded as entering Himachal at Parwanoo Barrier. This register was not paged. He then admits in his cross-examination that there was no entry of the truck of PW7 Amrik Singh at Parwanoo Barrier. No signatures of the driver and conductor have been obtained on the register. He also admits that there is no entry of truck No. HP-20-1481 of Amrik Singh in the register on 13th February, 1993. Ext.P16 pertains to the period from 13.2.1993 to 15.2.1993. This witness admits that the serial numbers of the entries are not correctly given nor have been verified by any person. In these circumstances, the learned Court holds that the testimony of PW7 Amrik Singh that his vehicle was provided assistance by the accused on 14th February, 1993 cannot be accepted. We cannot come to any different view. Leaving everything aside even if Ext.P16 is accepted as it is, the case of the prosecution that Amrik Singh, who also drove his truck from Jharia to Solan, an entry was made at the Parwanoo barrier as the case of the prosecution is that all commercial vehicles entering Himachal Pradesh are recorded at the barrier. There was no such entry in the register and in these circumstances; it becomes difficult to accept that Amrik Singh is stating the facts correctly. We are alive to the situation that even one circumstance can unerringly prove the guilt of the accused but the evidence must be complete and in capable of explanation of any other hypothesis than that of the guilt of the accused.

The third circumstance urged is with respect to the payment received by the accused. The prosecution relies upon the statements of PW17 Pradeep Kumar, PW23 Rajesh Kapil and PW22 Gian Chand. Adverting first to the statement of PW23 Rajesh Kapil, he states that he was working as Accounts Officer in Baddi Spinning Mill. He handed over consignment note Ext.PW17/A to the Police. The vouchers pertain to truck No. HIA 6353 and the person who had received the payment had signed on the obverse side of the vouchers. In cross-examination, he admits that he cannot state with certainty as to whether the payment of Rs. 9,000/was paid in cash or cheque to Mr. Gurucharan Singh. But he says that some amount was paid by cheque also.

PW17 Pradeep Kumar states that he was working as an Accountant in Bindal Company, Solan. The truck was unloaded in NCP Limited of Mohan Meakins Pvt. Ltd. Solan. According to him the payment was released to the person who brought the goods receipt. He could not recognize the person who received the payment. PW22 Gian Chand, Naib Tehsildar states that Amrik Singh accused was produced before the police for taking his specimen signatures. Papers were signed in his presence. The learned Court on the evidence of these witnesses finds that the payment in question of the consignment does not stand proved, the very cheque which was admittedly issued in his favour, has not been proved to either have been issued or encashed.

The next circumstance urged is the arrest of the accused along with the stolen truck by PW16 Jasbir Lal ASI, Police Station, Dhimla in Kapurthala. The prosecution urges the evidence of PW16 Jasbir Lal and PW20 Inspector Mohinder Pratap in support of this fact. PW16 Jasbir Lal has stated that on 2.3.1993, he was posted at Ibrahim Bagh Police Post and was present at a Nakka which had been set up on prior permission on the information that one truck from Himachal Pradesh had been stolen and had been sold in that area. At around 7.50 p.m., this truck was intercepted and at the relevant time, it was being driven by accused Gurcharan Singh and accused Amrik Singh was sitting with him. They were arrested and taken into custody. Challan u/s 379 and Section 411 I.P.C was presented in the Court of J.M.I.C, Kapurthala and he appeared there as a witness. Both the accused were acquitted. PW20 Inspector Mohinder Singh, S.H.O. Parwanoo has stated that the investigation of the case was handed over to him on 2.3.1993 by Station House Officer. In cross examination, he says that Gurcharan Singh accused had already been arrested before 2.3.1993. In these circumstances, the court notices a very vital fact that when the accused had been arrested before 2.3.1993 then in what circumstances, he would be again arrested on the same day by PW16 Jasbir Lal.

The defence produced five witnesses in support of his case. DW3 Pritam Singh, who was the Pradhan of Gram Panchayat, Kapurthala states that the accused was arrested from village Nadali on 2.3.1993. To similar effect is the evidence of DW4 Karnail Singh stating that on 2.3.1993, accused Amrik Singh was arrested from village Nadali. This stands corroborated by DW5 Malkiat Singh, Secretary of the Gram Panchayat. In these circumstances, the fact as to whether Nakka had, in fact, been organized and the accused was not in the police custody itself becomes a big question mark. It cannot be accepted that the accused were actually seen driving in the stolen vehicle belonging to the deceased. Moreover, as admitted by the police itself, they were acquitted for offences in that case.

Another circumstance urged relates to the disclosure statement made by accused as proved by PW6 Satish Kumar and PW10 Durga Ram in the presence of PW20 Mohinder Pratap. The weapon in question was a rod which was admitted by PW6 Satish Kumar to have been recovered from an open place. PW10 Durga Ram has stated that in his presence the police interrogated accused Gurucharan Singh and statement Ext.PW10/E was recorded. He had gone on that day to the Police Station in connection with the murder of his elder brother. He admits that the Station House Officer had told him that the accused was stating nothing about the rod. The recovery is further doubted by the learned court below and rightly so, when adverting to the statement of this witness, the court holds from his cross examination that the police had already told him that Gurcharan Singh accused had made a disclosure statement before the arrival of this witness and that the rod was recovered from 600 meters from Solan-Brewery under some bushes. He did not accompany the accused to the spot but remained standing on the national high-way.

The sixth circumstance urged is the medical evidence on the record which according to the prosecution implicates the accused. Adverting to the evidence of PW15 Dr. L.B. Purohit, who conducted the post mortem of the dead bodies on 21.2.1993, found number of injuries on the body of the deceased. He states that the body of a Sikh gentlemen had three lacerated wounds out of which two were found to be ante mortem in nature. The injuries on the body of the clean shaven person were in the nature of incised wounds. This witness testifies that the lapse of time between the death and post mortem was 40 to 48 hours and that semi digested food was found in the stomach. Rigour mortis was found on the legs and maggots were present in the body. The Sikh gentlemen had died on account of head injuries and the cause of death of other person was multiple injuries including ruptured spleen, right lung and vessels etc. The prosecution urged that this fact established the exact time of death of the deceased which was fixed as the intervening night of 12th/13th February, 1993. The doctor admitted in his cross-examination that rigour mortis starts about 1 to 2 hours after death and takes about 12 hours to develop fully and another 12 hours to pass of. On the aspect of finding semi digestive food in the stomach, he states that the last meal could have been taken about less than six hours as the stomach was full of semi digestive food. The factum of such food in the stomach would make the death nearer to the time of the post mortem. This circumstance was, therefore, rejected and we affirm the same.

Adverting to the last circumstance, the learned trial Court notes that PW16 Jasbir Lal states that one person named Jat had also figured in the investigation who was suspected to have committed the crime and he was absconding, no effort was made to trace him. We find this intriguing.

In the totality of the facts and circumstances of

the case, the Court finds that the chain of evidence has not been established.

Admittedly, the present case is based on circumstantial evidence. The principles of law in such circumstances have been enunciated by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Court holds:

It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Vs. The State of Madhya Pradesh, This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P., (1969) 3 SCC 198 and Ram Gopal Vs. State of Maharashtra, It may be useful to extract what Mahajan, J. has laid down in Hanumant''s case (at pp. 345-46 of AIR) (supra) :

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made :

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

153 These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

154 It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus :

Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.

Lord Goddard slightly modified the expression ''morally certain'' by ''such circumstances as render the commission of the crime certain

(PP 1655 & 1656)

We need not multiply precedent on the point but we note that the learned trial Court rightly considers the other judgments on the point in Padala Veera Reddy Vs. State of Andhra Pradesh and others, , holding that the chain of circumstances from which an inference of guilt is sought to be drawn must be established, it must be a definite unerringly pointing to the guilt of the accused. The chain must be so complete that there is no escape from the conclusion that it was the accused and nobody else committed the crime. These principles find reiteration in Kishore Chand Vs. State of Himachal Pradesh, . We need not multiply precedent further. We find from the evidence on record that each circumstance urged either on its own or in conjunction with the other circumstance(s) do not implicate the accused. In these circumstances, we cannot persuade ourself to hold that the prosecution has been able to establish that the offence was, in fact, committed by the respondent.

Turning to the totality of the facts and circumstances of the case, we find that the evidence to prove the complete chain of events has not been established. In these circumstances, we do not find any fault in the reasoning of the learned trial Court. This appeal is accordingly dismissed. We place on record our appreciation for the valuable assistance rendered to this Court by Ms.Kanta Thakur, Advocate who has appeared as Amicus Curiae.