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Naresh Kumar v/s State of Himachal Pradesh

    Criminal Appeal No. 383 of 2018

    Decided On, 01 April 2022

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MS. JUSTICE SABINA & THE HONOURABLE MR. JUSTICE SATYEN VAIDYA

    For the Appellant: Naveen K. Bhardwaj, Advocate. For the Respondent: Ashwani K. Sharma, Additional Advocate General.



Judgment Text

Sabina, J.

Appellant has filed the appeal, challenging the judgment/order dated 17.8.2018 and 24.8.2018, whereby he was convicted and sentenced, respectively, as under:-

Sections 302 & 364 read with Section 34 of Indian Penal Code: Imprisonment for life and to pay a fine of Rs.25,000/-each.

Section 201 read with Section 34 of Indian Penal Code: Rigorous imprisonment for a term of seven years and to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo imprisonment for a term of six months.

2. Prosecution story, in brief, is that on the night intervening 13.4.2013 and 14.4.2013, appellant Naresh Kumar and his co-accused Vijay Kumar, had committed murder of Rajeev Kumar and had thrown the dead body on the Kalka-Shimla Railway Track near Taksal, KM No.3/7-8. Deceased Rajeev Kumar was residing with Rajesh Kumar in a rented room in the building of Shyam Lal. Rajeev Kumar went missing on the night of 13.4.2013 from his rented premises. On 19.4.2013, Mangat Ram (father of the deceased), received a letter from Balraj Engineering Works that his son was absent from duty w.e.f. 14.4.2013. Complainant made all possible efforts to search his son, but in vain. Thereafter, complainant lodged the missing report of his son at Police Station, Nalagarh on 23.4.2013. Thereafter, on 27.4.2013, complainant came to know from Rajesh Kumar (room partner of the deceased) that Rajeev Kumar was missing since 13.4.2013. Complainant further came to know that on 13.4.2013, Rajeev Kumar had consumed liquor with accused and then they had left at about 1:00 a.m. towards Nalagarh on a motorcycle. Although, the accused had returned in the morning, but Rajeev Kumar had gone missing.

3. FIR was registered on 28.4.2013 at Police Station, Nalagarh. On 14.4.2013, an unidentified male body, run over by the train, was found at Kalka-Shimla Railway Track near Taksal, KM No.3/7-8 near HPMC Factory, Parwanoo. After postmortem examination, the dead body had been cremated as unidentified/unclaimed. After seeing the photographs of the dead body, the same was identified as that of Rajeev Kumar by the complainant on 11.5.2013. Appellant was arrested on 9.5.2013, but his co-accused Vijay Kumar could not be arrested. After completion of investigation and necessary formalities, Challan was presented against the appellant.

4. Charge was framed against the appellant under Sections 364, 302, 201 read with Section 34 of the IPC. Appellant did not plead guilty to the charges framed against him and claimed trial.

5. During trial, prosecution examined 26 witnesses to prove its case. Appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he had been falsely implicated in the case. In fact, he was present in Delhi with his friend, Gagan from 13.4.2013 to 17.4.2013. Appellant did not examine any witness in defence.

6. Learned counsel for the appellant has submitted that the present case rests on circumstantial evidence. The star witness of the prosecution was Rajesh Kumar. However, the said witness had not been examined during trial. So far as the statement of PW-9 (Shyam Lal) is concerned, the same had been recorded on 17.5.2013. Hence, the delay in recording his statement renders his testimony doubtful. So far as PW-4 (Navneet Saini) and PW-2 (Gurmeet Singh) are concerned, their statements were hearsay and could not be relied upon in the absence of testimony of Rajesh Kumar. No reliance can be placed on the report of the Forensic Science Laboratory (Ex.PE) as the T-Shirt alleged to have been worn by the appellant had been recovered from Rajesh Kumar, whereas Rajesh Kumar had not been examined as a witness during trial.

7. Mr. Ashwani K. Sharma, learned Additional Advocate General, on the other hand, has opposed the appeal, and has submitted that the prosecution has been successful in proving its case. The statements of the witnesses examined by the prosecution inspire confidence.

8. The present case relates to murder of Rajeev Kumar. The case rests on circumstantial evidence. It has been held by the Hon’ble Supreme Court in Krishnan v. State represented by inspector of Police, 2008(15) SCC, 430 as under:-

“15. Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) 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 none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

9. Thus, the evidence led by the prosecution has to be scrutinized with a view to come to a conclusion, as to whether the prosecution has been successful in completing the chain of circumstances leading towards the guilt of the accused or not. The prosecution story mainly rests on theory of last seen and report of the Forensic Science Laboratory (Ex.PE).

10. It is the case of prosecution, as per the investigation of the case, that the deceased and the accused had consumed liquor together in the rented premises of the deceased. Thereafter, the accused alongwith deceased had left the premises on a motorcycle. Accused had taken Rajeev Kumar towards Railway Track and had caught hold of Rajeev Kumar from his arms as he was under the influence of liquor. Vijay Kumar had struck the empty beer bottle on the head of Rajeev Kumar, as a result of which, Rajeev Kumar fell on the Railway Line. Thereafter, Vijay Kumar and appellant inflicted injuries on the persons of Rajeev Kumar with stones as a result of which, Rajeev Kumar died. The dead body of Rajeev Kumar was left on the Railway Track so that nobody could come to know about the incident. Thereafter, Vijay Kumar had sold his motorcycle to Mangal Singh.

11. Thus, the prosecution had projected its case that the accused, after committing murder of Rajeev Kumar, had thrown the dead body on the Railway Track, so that the offence committed by them could not be detected. In this regard, postmortem examination of the deceased is very material.

12. PW-13 Dr. A.K. Sharma deposed that on 15.4.2013, he had conducted the postmortem examination of an unknown dead body (of a person aged about 25 years) alongwith Dr. Pratima Thakur and had found following ante-mortem injuries on his person:-

“(1) Head and a part of the neck was found decapitated (dismembered) at the level of 5th cervical vertebrae with massive local tissue destruction with a band of red contusion collar on the either side of the severed areas of neck with soiling of damaged area with greased dirt and dust.

(2) Right upper limb was found detached/ dismembered with right shoulder area with massive local tissue destruction with a band of red contusion collar on both sides of amputated area with soiling of damaged area with grease dirt and dust.

(3) Left leg and left foot was found massively lacerated (crushed) with massive destruction of underlined soft tissues and bones with soiling of damaged area with grease dirt and dust, but not dismembered attached with the rest of left lower limb with tag of soft tissue.

(4) Lacerated wound of size 8x4x bone deep present in left parietal region of the scalp.

(5) Lacerated wound of size 4x3 cms x bone deep present in the left temporal region of the scalp.

(6) Lacerated wound of size 4x2x1 cms present over right temporal region of the scalp.

(7) Red contusion of size 11x10 cm present over right fronto temporal region of scalp extending down to the right side of the face.

(8) Lacerated wound of size 1x1x.5 cms present near the outer angle of right eye.

(9) Multiple red abrasions of varying sizes present all over the face.

(10) Lacerated wound of size 3x1x1 cms present over the left pinna.

(11) Multiple abrasions of varying sizes present over the posterior aspect of lower thorax and upper abdominal region across midline.

(12) Red abrasions of size 3x2 cm present on the left elbow.

(13) Lacerated wound of size 3x1x05 cms present over palmer aspect of left index finger.

(14) Red abrasion of size 2x1 cms present over frontal aspect of left knee.

Clotted blood was present in all the injures described above. On the basis of the observations and interpretation there on the deceased belongs to Indian race with an approximate age of 22+-2 years.

Head Region

Antemortem subaponeurotic haemorrahage present in right and left fronto parieto temporo occipital region of scalp.

Antemortem depressed comminuted fracture present in the region of left temporo occipital region of scalp.

Extensive antemortem subdural and subarachnoid haemorrhage present in right and left cerebral hemisphere of the brain. Brain and membrains were pale.

Spinal cord was found transected at the level of 5th cervival vertebrae.

Thorax

Walls, ribs, cartilages, pleurae, right and left lungs, heart and vessels were found pale,

In the larynx and trachea were found transacted at the level of 5th cervical vertebrae with evidence of antemortem in filtration of clotted blood in an around transacted ends.
Rest-NAD.

Abdomen

Peritoneum, liver spleen, kidneys, bladder, organs of generation were found pale.

Antemortem fracture present on left upper central incisor and left upper canine tooth (Crown part was missing) with contusion present in the adjoining gums. The stomach contains 500 cc semi digested food with pale mucosa and foul smelling gases.

Rest-NAD.

(NAD stands for Nothing Abnormal detected.)”

13. The said witness proved the postmortem report (Ex.PW13/A). He further deposed that as per their opinion, the death had occurred on account of shock, as a result of multiple ante mortem injuries. The probable time elapsed between injuries and death was instantaneous and the time between death and post mortem was around 36 hours. The blood alcohol concentration of the deceased was 276.81 mg%, as per chemical examiner report.

14. The dead body of Rajeev Kumar was recovered from the Railway Track.

15. PW-23 (Nigahu Ram) deposed that on 14.4.2013 at about 7:30 a.m., while checking the Railway Track, he noticed a dead body on the Track. The scalp of the body was cut and separated. The right arm was also cut and separated from the body and left leg was in the track and the dead body could not be identified. Local Police and GRP clicked photographs on the spot and dead body was sent for postmortem examination.

16. Statement of PW-23 is corroborated by PW-21 (Ram Dhari).

17. So far as postmortem examination report of the deceased is concerned, as per the same, the deceased had suffered 14 ante mortem injuries. Thus, it is evident that when the body of Rajeev Kumar was crushed by the running train, he was alive as all the injuries suffered by him were ante mortem in nature. On the other hand, the story sought to be projected by the prosecution is that the accused, after committing murder of Rajeev Kumar, had thrown the dead body on the Railway track. The said theory put forth by the prosecution is belied by the medical evidence.

18. Prosecution has also examined witnesses to establish the fact that the deceased had been last seen in the company of the accused. In this regard, PW-2 (Gurmeet Singh) has deposed that he was working as a Foreman in Balraj Engineering Works. Rajeev Kumar used to work in the said Company as a Machine Helper. On 13.4.2013, he had proceeded on half day leave and had given the keys of the workshop and mobile to Rajesh and Rajeev Kumar. The quarter of the said persons was near the workshop. On 17.4.2013, he returned back to the duty and inquired about Rajeev Kumar from Rajesh Kumar. Rajesh Kumar informed him that on 13.4.2013, during night time, Vijay, Naresh and Raju had consumed liquor in the room. Naresh and Vijay had taken Rajeev Kumar on their motorcycle towards Nalagarh and thereafter Rajeev Kumar had not returned for duty. The statement of this witness can be said to be hearsay. However, Rajesh Kumar has not been examined during trial. In these circumstances, the testimony of PW-2 (Gurmeet Singh) fails to advance the prosecution case as his statement is merely hearsay.

19. Complainant (Mangat Ram), while appearing in the witness box as PW-1, has deposed that his son was working with Balraj Engineering Works for the last three years. On 7.4.2013, his son had informed him on phone that he would be visiting home on 14.4.2013. However, his son had not visited home. On 19.4.2013, he received a letter from Balraj Engineering Works that his son, Rajeev Kumar had not reported for duty since 13.4.2013. He tried to contact his son, but his mobile phone was switched off. He lodged a missing report on 23.4.2013 at Police Station, Nalagarh. On 27.4.2013, he came to know that his son was residing with his room partner and the room partner disclosed that Naresh Kumar and Vijay Kumar used to visit the room of his son, Rajeev Kumar. On 13.4.2013, his son, Naresh Kumar and Vijay Kumar had consumed liquor together and thereafter they had all left on a motorcycle. He had a suspicion that his son had either been concealed or killed by the accused persons. He had identified the photographs of his son which had been published by the Police on 14.4.2013. Thus, so far as involvement of the appellant with regard to the crime in question is concerned, no reliance can be placed on the testimony of PW-1. PW-1 has failed to disclose even the name of the person with whom his son, Rajeev Kumar was sharing the room. Thus, he has also failed to disclose the source of his information with regard to involvement of the appellant in the crime. Moreover, his statement is merely hearsay.

20. PW-4 (Navneet Saini) deposed that they were running a workshop under the name and style of Balraj Engineering Works. Rajeev Kumar was working in their Company as a Machine Helper. On 13.4.2013, Foreman, Gurmeet had proceeded on half day leave and had handed over the keys of the workshop to Rajesh and Rajeev Kumar. On 13.4.2013, he was informed by Rajesh that on the night intervening 13/14.4.2013, Vijay, Naresh and Raju had consumed liquor together and thereafter they had gone somewhere on a motorcycle. Rajeev Kumar had not returned thereafter. Mobile Phone of Rajeev Kumar was found switched off. He sent a letter at the home address of Rajeev Kumar with regard to his absence and thereafter family members of Rajeev Kumar visited his Office.

21. Statement of PW-4 can also be said to be hearsay so far as the theory of last seen of the deceased in the company of the accused is concerned. So far as the statement of Rajesh, who had disclosed to this witness that the deceased and the accused had taken liquor together and had left thereafter on a motorcycle, is concerned, the same has not been corroborated by the author of the information, Rajesh Kumar, as Rajesh Kumar has not been examined as a witness during trial. Hence, statement of PW-4 fails to advance the case of the prosecution with regard to the involvement of appellant in the crime.

22. PW-9 (Shyam Lal) deposed that he had constructed two storied home at Jagatkhana. He had given 10/12 rooms to Balraj Engineering Works. One room had been given on rent to Rajeev and Rajesh for the last about one and half years prior to the incident. On 13.4.2013, Rajeev, Naresh Kumar, Jitender and Vijay Kumar had consumed liquor in the room. On 14.4.2014, all the persons did not return to the room and had left the room without paying the rent. Thereafter, he came to know that Rajeev Kumar was missing from 13.4.2013 onwards. His statement was recorded by the Police on 17.4.2013. In his crossexamination, he deposed that he could not produce any rent agreement or receipt relating to payment of rent by the tenants. The statement of this witness was recorded on 17.5.2013. Thus, there was delay of more than one month in recording his statement, although, missing report was lodged by the complainant on 23.4.2013.

23. PW-1 (Mangat Ram) also came to know on 27.4.2013 that his son was residing with a room partner. However, statement of PW-9 was recorded by the Police on 17.5.2013. PW-9 has failed to produce any receipt with regard to payment of rent by the tenants or rent agreement executed between him and the tenants. PW-4 (Navneet Saini) has not corroborated the testimony of PW-9 (Shyam Lal) to the effect that 10/12 rooms had been given to their Company by PW-9. Hence, the testimony of PW-9 also fails to inspire confidence.

24. Prosecution has also placed reliance on the report of the Forensic Science Laboratory (Ex.PE). The conclusion given in Ex.PE reads as under:-

“i) xxx xxx xxx

(ii) The DNA Profile obtained from exhibit-3a (T-shirt of accused Naresh Kumar) matches completely with the DNA profile obtained from the clavicle bone of the deceased (received vide letter No.671/5A dated 18.04.13 and RC No.4/13 dated 18.04.13 and reported vide SFSL Report No.626-B/SFSL/DNA-85/13), exhibit- 1a (jean pants of deceased Rajeev Kumar), exhibit-1c (T-shirt of deceased Rajeev Kumar) and exhibit-1e (slipper of deceased Rajeev Kumar).”

25. Thus, as per the above opinion, the DNA Profile obtained from the T-shirt of the appellant matched completely with the DNA Profile obtained from clavicle bone of the deceased. In this regard, the relevant evidence would be, as to how the T-shirt belonging to the appellant, was recovered during the course of investigation.

26. PW-8 (SI Kuldeep Kumar) deposed that on 17.4.2013, Rajesh Kumar, who was residing at Jagatkhana alongwith accused, handed over to Police his clothes, i.e., a jean pant and a sky blue T-shirt, which were worn by the accused at the time of incident. Statement of PW-8 is corroborated by PW-9 (Shyam Lal) Thus, as per the said witnesses, T-shirt, which was allegedly worn by the appellant at the time of incident, had been produced before the Police Officials by Rajesh Kumar. However, Rajesh Kumar has not been examined during trial. Hence, the recovery, which was allegedly effected from Rajesh Kumar, cannot be said to be duly established as Rajesh Kumar has not been examined during trial. It was only Rajesh Kumar who was alleging that the T-shirt given by him to the Police had been worn by the appellant at the time of incident. Since Rajesh Kumar has not appeared in the witness box, appellant has been denied the opportunity to crossexamine the said witness to elicit truth from him. Hence, no reliance can be placed on the testimony of PW-8 to conclude that the T-shirt he had got recovered during investigation, in fact, had been worn by the appellant at the time of incident.

27. After the arrest of the appellant, his statement was recorded under Section 27 of the Indian Evidence Act, 1872. PW-20 (SI Pradeep Chand) has deposed that the appellant had disclosed that he could identify the place of occurrence and in pursuance to the statement suffered by the appellant he took the police party to the Railway Track at Sector-5 Parwanoo, where Rajeev Kumar had been murdered by him alongwith Vijay Kumar. At the spot, blood stained stones and a broken bottle of beer, were found and they were taken in possession.

28. Thus, on the basis of the alleged disclosure statement suffered by the appellant, blood stained stones and broken bottle of beer were recovered after a period of about one month from the spot. So far as the place from where the dead body was recovered is concerned, the same was already in the knowledge of the Police as the dead body had already been recovered from the Railway Track. As per the report of the Forensic Science Laboratory ( Ex.PC), human blood deducted on the blood stained stones, broken glass pieces of beer bottle and blood stained soil lifted from the spot, had remained inconclusive with respect to blood group. Hence, the recovery of the blood stained stones and broken beer bottle from the spot, fails to advance the prosecution case with regard to the involvement of the appellant in the crime.

29. Thus, a perusal of the circumstances brought on record by the prosecution, reveal that the prosecution has failed to complete the chain of the circumstance leading towards the guilt of the appellant. The medical evidence fails to corroborate the prosecution story with regard to the fact that after committing the murder of Rajeev Kumar, the accused had thrown the dead body on the Railway Track with a view to destroy the evidence of their involvement in the crime. As per the postmortem report, the injuries suffer

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ed by the deceased were antemortem in nature. Thus, when the deceased was crushed by the train, it can be said that he was still alive. Secondly, the theory propounded by the prosecution of last seen of the deceased in the company of the accused is concerned, the same is also not established on record as the main witness of the prosecution, Rajesh Kumar was not examined during trial. The recovery of the T-shirt worn by the appellant at the time of incident is also not established on record as the person who had handed over the T-shirt allegedly worn by the appellant at the time of incident to the Investigating Agency, was not examined during trial. The Forensic Science Laboratory report also fails to establish that the blood stained stones carried the same blood group as that of the deceased or glass pieces of the broken beer bottle carried the blood stains of the deceased. 30. Keeping in view the totality of the facts and circumstances of the case, we are of the opinion that the prosecution had failed to establish the guilt of the accused beyond the shadow of reasonable doubt. The possibility of appellant having been falsely involved in this case cannot be ruled out. 31. Accordingly, the appeal is allowed. The impugned judgment of conviction dated 17.08.2018 and subsequent order of sentence dated 24.08.2018, passed by the Sessions Judge, Solan, Camp at Nalagarh, District Solan (H.P.), in Sessions Trial No.16-NL/7 of 2013, are set aside. Appellant is acquitted of the charges framed against him in case F.I.R. No.78/2013, dated 28.04.2013, Police Station, Nalagarh, District Solan, (H.P.), under Sections 364, 302 & 201 read with Section 34 of the Indian Penal Code. Appellant be set at liberty forthwith, if not required in any other case. 32. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Naresh Kumar, son of Sh. Chaturbhuj Sharma, is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court. 33. Pending miscellaneous application(s), if any, shall also stand disposed of.
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