w w w . L a w y e r S e r v i c e s . i n



Rakesh Shah @ Chillu v/s State of H.P.


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    Cr. Appeal No. 608 of 2017

    Decided On, 29 July 2019

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE DHARAM CHAND CHAUDHARY & THE HONOURABLE MR. JUSTICE VIVEK SINGH THAKUR

    For the Appellant: Sheetal Vyas, Advocate. For the Respondent: Vikas Rathore, Addl. A.G, Narinder Guleria, Addl. A.G, J.S. Guleria, Dy. A.G.



Judgment Text

Dharam Chand Chaudhary, J.

1. The appellant (hereinafter referred to as the ‘accused’) herein is a convict. He has been convicted by learned Additional Sessions Judge-I, Kangra at Dharamshala for the commission of an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also to pay a sum of Rs.10,000/- as fine vide judgment dated 16.3.2017 passed in Sessions Case No. 14-N/VII/2014.

Facts of the case:

2. The allegations against the accused, in a nut-shell, are that deceased Fauju Shah, who was working as Security Guard in B.Sc. Nursing College, Malakwal returned to home after his duty was over at 5.00 p.m. on 2.6.2014. According to the complainant, Shukar Deen (uncle of deceased) his brother Roshan Deen @ Nagu (PW-12, father of the deceased) and Fauju Shah consumed liquor. They assaulted each other. The mother of deceased Fatima Bibi (PW-10) picked up ‘Thapi’ (flat wooden piece meant for beating clothes while washing) administered its blow on the head of Fauju Shah. The injury caused thereby started bleeding. He fell down in the courtyard. His father Roshan Deen @ Nagu (PW-2) had also sustained injuries on his person. He, therefore, was taken to the hospital in ambulance 108. The office of ambulance 108 made a call to the police station, Nurpur that in an altercation having taken place at village Malakwal, one person has received injuries and that he is being brought to the hospital. The information so received was entered in the rapat rojnamcha Ext. PW-27/A and Sub-Inspector Tilak Singh along with other police officials rushed to civil hospital, Nurpur. After conducting investigation, he returned to the police station and made entries in the daily diary Ext.PW- 12/A. It was recorded that MLC of injured was obtained and that he was called to the hospital again on the next day for x-ray examination and to have the opinion of ENT Specialist on some of the injuries.

3. PW-2 Roshan Deen @ Nagu was brought from hospital in the ambulance. PW-10 Fatima Bibi his wife was also with him. They noticed deceased lying on Atiala in village Malakwal. When they reached in the house informed Begum Bibi (PW-13) their daughter-in-law and wife of deceased that her husband was lying at Atiala.

4. On 3.6.2014 at 6.00 a.m. Balkar Singh (PW-7) informed Shukar Deen (PW-1) that the neck of Fauju Shah had been cut down and he is killed. Balkar Singh called Shukar Deen to come to the spot. Accordingly, PW-1 rushed to the spot and found the beheaded body of Fauju Shah lying on the spot. On suspicion, PW- 1 had lodged complaint Ext. PW-1/A with the police of police station, Nurpur against his brother Roshan Deen @ Nagu and Fatima Bibi, parents of deceased because there was property disputes pending between them. The information so given by PW- 1 Shukar Deen to the police was entered in daily dairy vide rapat Ext.PW-27/B. PW-27 Megh Nath Inspector/SHO Police Station, Nurpur, District Kangra has has taken the investigation in his hand. He recorded the statement Ext.PW-1/A of Shukar Deen. On the basis of statement of Shukar Deen, a case under Section 302 IPC was found to be made out by the police. He sent the statement made by Shukar Deen to police station through Constable Ajay Kumar, on the basis thereof, FIR Ext.PW-19/A was registered by ASI Ramesh Chand. PW-27, the I.O has telephonically called the FSL team to the spot. The photographs Ext.PW-15/A to Ext.PW-15/A-18 were clicked on the spot. The CD of the photographs Ext.PW-15/D- 1 was also prepared. He videographed the spot vide DVD Ext.PW- 15/B and prepared the spot map Ext.PW-27/C also. The team of FSL also reached on the spot. The I.O. filled the inquest papers Ext.PW-27/D (five leaves). The blood sample was lifted from the spot and taken in possession after getting the same dried and sealing in a plastic box with impression of seal ‘A’. The control soil was also lifted for sample from the nearby place where the blood was lying. The same was sealed in a small box with impression of same seal. The blood lying on the cemented floor near the dead body after getting it dried was also taken into possession after sealing with impression of seal ‘A’. All these items were recovered vide memo Ext.PW-4/A. A pair of chappal Ext.P-3 was also taken in possession and sealed in parcel Ext.P-4. On 2.6.2014 during fight having taken place in the courtyard of the house of deceased, two buttons Ext.P-5 and P-6 had fallen there. The same were also sealed in a parcel along with one piece of ‘kangan’ Ext.P-7 to Ext.P-9 and taken into possession vide memo Ext.PW-5/A.

5. PW-9 thereafter made an application Ext.PW-27/F to the Medical Officer, Civil Hospital, Nurpur for the post-mortem of the dead body of Fauju Shah. The Medical Officer on duty, however, advised that the opinion of Forensic expert regarding cause of death and injury is required. The body, therefore, was taken to the Dr. R.P.G.M.C, Tanda for getting the post-mortem conducted by some Forensic Expert. The report is Ext.PW-3/A. The Medical Officer, Civil Hospital, Nurpur written a letter to Forensic Department of RPGMC Tanda. The same along with inquest papers was sent to medical college along with dead body. The postmortem of the dead body was conducted. The photographs of the post-mortem Ext.PW-18/A-1 to A-10 and CD of the post-mortem Ext.PW-18/A-11 were also taken. The Forensic Expert handed over the clothes, sample of hair, blood and viscera along with letter addressed to Forensic Science Expert to the police officials who have brought the dead body to the medical college. All such samples preserved in the hospital were deposited by the I.O PW-27 in the police station with MHC for necessary action.

6. On 4.6.2014, an empty half bottle of officer choice was recovered from the drain. The same was allegedly thrown by the accused after consuming the liquor on 2.6.2014 during the night at 10.00 a.m. The supplementary statements of Shukar Deen PW-1, the statements of Vakil Shah PW-17, Begum Bibi PW-13, Roshan Deen PW-12 and one Ram Bahadur and Manoj Kumar PW-6 under Section 161 Cr.P.C were recorded. They all stated that the accused was seen with the deceased in the night and they consumed liquor together.

7. The accused was arrested on 6.6.2014. He made a disclosure statement Ext.PW-20/A in the presence of PW-20 Munshi Ram and one Arood Singh that knife Ext.P-1, Pant Ext.P-11 and vest Ext.P-12, he was wearing at the time of murder of Fauju Shah have been thrown under a culvert (Pulia) and it is he who alone can get the same recovered. The statement of Munshi Ram and Arood Singh were recorded by the I.O. The accused thereafter led the police to the place one kilometer away from Malakwal chowk towards Lahru road and identified the culvert there. He had taken out beneath the culvert knife, pants and vest. The sketch of the knife Ext.PW-9/A was prepared. The pant and vest were also sealed in a parcel and taken in possession vide memo Ext.PW-9/C in the presence of Ravinder Chaudhary PW-14 and Khushwant Singh PW-9. The photographs of the place of recovery are Ext.PW- 15/C-1 to C-7 and CD is Ext.PW-15/D.

8. The application Ext.PW27/H was made to the Tehsildar, Nurpur for demarcation of the land at Malakwal chowk where the deceased was murdered. The demarcation was conducted by the Field Kanungo Ashwani Kumar PW-16, who has prepared the demarcation report Ext.PW-16/A, copy of jamabandi Ext.PW-16/B and tatima Ext.PW-16/C and also recorded the joint statement of witnesses Ext.PW-16/D and E. The same were handed over to the police.

9. All the articles seized during the course of investigation were handed over to MHC of police station for safe custody. The same were sent for scientific analysis. The reports from FSL Ext.PA-1 and PA-2, Forensic Expert opinion of Medical Officer RPGMC Tanda Ext.PW2/B was obtained. The weapon of offence knife Ext.P-1 was also examined by the Forensic Expert and given his opinion thereon. On the completion of the investigation, report under Section 173 Cr.P.C was filed in the Court.

10. Learned trial Judge on appreciation of the contents of the police report and documents annexed therewith and finding that sufficient grounds are made out to proceed further against the accused, framed charge for the commission of offence punishable under Section 302 IPC against him. The accused, however, pleaded not guilty to the charge and claimed trial. The prosecution, therefore, examined 27 witnesses in all to substantiate the charge so framed against the accused.

Prosecution case in a nut-shell:

11. The complainant is Shukar Deen. He is uncle of deceased. He has reported the matter to the police on 3.6.2014 on seeing the dead body of his nephew Fauju Shah and suspected the hand of his brother Roshan Deen @ Nagu PW-12, Fatima Bibi, PW-10 (parents of deceased) as on 2.6.2014, in the evening, they assaulted each other and also the dispute of property between them. When the police arrived at the spot, he has made the statement Ext.PW-1/A again implicating his brother Roshan Deen PW-12 and Fatima Bibi PW-10 for the murder of their son Fauju Shah. In his supplementary statement recorded by the I.O., he has implicated the accused on the basis of the information given to him by Manoj Kumar PW-6 that the accused and deceased were seen together by him at 10.00 p.m on2.6.2014 on Malakwal chowk at Atiala. PW-4 Ashwani Kumar is a witness to the blood samples drawn by the police on 3.6.2014 from the spot, which were taken in possession vide memo Ext.PW-4/A. A pair of chappal belonging to the deceased was also taken in possession in his presence and in the presence of PW-8 Shakti Prasad vide recovery memo Ext.PW-4/B. PW-5 Rakesh Kumar is a witness to the recovery of two buttons Ext. P-5 and P-6 and three pieces of plastic kangan Ext.P-7 to P-9 taken in possession on 3.6.2014 from the courtyard of the house of the deceased vide memo Ext.PW-5/A. Arood Singh is another witness to this memo. PW-6 Manoj Kumar is resident of village and post office, Khuwara. According to him on 2.6.2014, in the evening, he had consumed liquor with his friend Ram Bahadur at Malakwal. Their another friend Raghu had to come, therefore, they came to Atiala to wait him there. Around 10.00 p.m., accused and deceased also came there from their house. The accused had a liquor bottle in his hand. They both consumed liquor. The deceased had injuries on his face. On reaching at Atiala, the deceased lie-down there. The accused offered liquor to this witness and his friend Ram Bahadur, however, they refused. The accused filled the bottle with water of handpump and consumed the liquor, which he had been carrying with him. The empty bottles he threw away in the nearby drain. He has also witnessed the recovery of empty bottles Ext.P-2, which the accused had allegedly thrown in the drain vide memo Ext.PW- 6/A. PW-7 is the shopkeeper, whose shop is adjacent to Atiala. According to him, on 3.6.2014, when he opened his shop at 5.45 a.m. noticed dead body of Fauju Shah lying on Atiala. He informed Shukar Deen, uncle of deceased accordingly. PW-8 Shakti Prasad is a witness to the samples of blood taken from the spot i.e. Atiala in his presence and presence of Ashwani Kumar PW-4. PW-9 Khushwant Singh and PW-14 Ravinder Chaudhary are the witnesses to the recovery of knife Ext.P-1, pant Ext. P-11 and vest Ext.P-12 from a place beneath the culvert, on the identification of the accused. PW-10 Fatima Bibi and PW-12 Roshan Deen @ Nagu are the parents of deceased. PW-10 has stated that the deceased and her husband quarreled with each other and received injuries. As a result thereof, her husband received injuries on his head. He, therefore, was taken in 108 ambulance to the hospital. Around 10.00 p.m. when they returned from the hospital to the house, found their son Fauju Shah lying on Atiala and the accused sitting with him there. They apprised their daughter-in-law Begum Bibi that her husband was lying on Atiala and that he will come to home. According to them, the accused had killed their son as he suspected illicit relations of deceased with his wife. PW-11 Sahib Singh is also a witness to the last seen theory. According to him, he is salesman in the liquor vend at Malakwal. Deceased Fauju Shah was known to him. On 2.6.2014, around 8.30 p.m. Fauju Shah came to liquor vend and purchased one one pets of officer choice and went towards the house of accused Rakesh. After 10- 15 minutes, they both came together from the house of the accused and went towards Malakwal chowk. In the morning, he came to know that Fauju Shah has been killed. PW-13 Begum Bibi is the wife of deceased Fauju Shah. According to her also, deceased and her father-in-law PW-12 quarreled with each other on 2.6.2014. Her father-in-law was taken to the Civil Hospital, Nurpur for medical examination in 108 ambulance. Her husband went to Malakwal bus-stand side. He, at about 10.00 p.m. was seen by her father-in-law and mother-in-law in the company of accused at Malakwal chowk lying on Atiala there. She went to sleep after having dinner. On the next day, came to know that her husband was murdered and his dead body was lying on Atiala. She believed that it is the accused who had murdered her husband as he was suspecting the illicit relations of deceased with his wife. It was told to her by the deceased also that the accused suspects his illicit relations with the wife of the accused. PW-17 Vakil Shah is the brother of deceased. According to him, he is Constable in CRPF and was posted at that time at Jalandhar. His mother Fatima Bibi (PW-10) told him on 2.6.2014 that the deceased was in the company of the accused in the market at Malakwal. On 3.6.2014 at about 5.40 p.m. (time wrongly stated by him), he received a telephonic call from Begum Bibi, wife of deceased that Fauju Shah has been murdered and his dead body is lying on Atiala. He came to Malakwal. According to him, photographs Ext.PW-15/A-1 to Ext.PW-15/A-18 were clicked in his presence. As per his version also, since the deceased was in the company of accused till late evening, therefore, it is the accused who killed him. PW-20 Munshi Ram is the witness to disclosure statement Ext.PW-20/A allegedly made by the accused while in police custody.

12. Other prosecution witnesses are PW-2 Dr. Vijay Arora, Professor and Head Department of Forensic Medicine RPGMC, Tanda, who has conducted the post-mortem of the dead body and given his opinion Ext.PW-2/B and PW-3 Dr. S.K. Mahajan who was posted as ENT specialist, Civil Hospital, Nurpur at the relevant time. It is he who had inspected the dead body, however, referred the same for the expert opinion to RPGMC, Tanda. His report is Ext.PW-3/A. PW-15 Rajinder Soga has clicked the photographs of the dead body Ext.PW-15/A-1 to A-18 and also prepared the DVD of the spot Ext.PW-15/B. The CD of the spot he prepared is Ext.PW-15/B-1. The photographs regarding the recoveries made he clicked are Ext.PW-15/C-1 to C-7 and the CD is Ext.PW-15/D. He has made the entries Ext.PW-15/E in his register. He issued certificate Ext.PW-15/F also. PW-16 is the Field Kanungo, Sadwan, Tehsil Nurpur. He has conducted the demarcation and submitted the report Ext.PW-16/A, jamabandi Ext.PW-16/B, Aks Shazra Kishtvar Ext.PW-16/C to the police. The joint statement of witnesses Balkar Singh, Arood Singh and Joginder Ext.PW-16/D was also recorded by him and handed over to the police. PW-18 is also a Photographer. He has clicked the photographs of the postmortem of the dead body conducted in RPGMC, Tanda Ext.PW- 18/A-1 to A-10 and also prepared CD Ext.PW-18/A-11. They all are formal witnesses.

13. The remaining prosecution witnesses are official witnesses. PW-19 ASI Ramesh Chand has registered the FIR Ext.PW-19/A, on the basis of rukka Ext.PW-1/A. PW-21 was posted as MHC Police Station, Nurpur. The case property was entrusted to him for safe custody in the malkhana. He forwarded the same to FSL, Dharamshala for analysis. PW-22 HHC Chaman Prakash has deposited the case property which was handed over to him by the Forensic Expert in RPGMC, Tanda. He had also taken the case property to FSL Dharamshala vide RC No. 120/14, Ext.PW-21/C. PW-23 is HC Swaroop Singh. He had conducted the investigation partly. He had taken on record certificate Ext.PW-15/F and the abstract of register Ext.PW-15/E from Rajinder Soga, PW-15, the Photographer. PW-24 is Sub-Inspector Kalyan Singh. He has also investigated the case partly. He has recorded the statements of MHC Bir Singh and HHC Chaman Prakash. In his presence, the samples were sent to RFSL, Dharamshala by MHC Bir Singh. PW-25 is HC Satish Kumar, who was posted as MHC in police station at the relevant time. He sent the knife to Forensic Expert at RPGMC Tanda. After its inspection by the Forensic Expert, the opinion Ext.PW-2/D was given. The same was collected and brought to the MHC by HHC Parmod Singh PW-26. The Investigating Officer is Inspector Megh Nath PW-27, SHO Police Station, Nurpur.

14. On the other hand, the accused in his statement recorded under Section 313 Cr.P.C has denied the incriminating circumstances appearing against him in the prosecution evidence either being wrong or for want of knowledge. According to him, the interested witnesses have been associated by the prosecution who had deposed falsely against him. He, however, opted for not producing any evidence in his defence.

15. Learned trial Judge on appreciation of the evidence comprising oral as well as documentary has convicted the accused for the commission of an offence punishable under Section 302 IPC. He has been sentenced to imprisonment for life and to pay Rs.10,000/- as fine.

Ground of appeal:

16. The appellant-convict aggrieved by the impugned judgment has questioned its legality and validity on the grounds inter-alia that the evidence on record has not been appreciated in its right perspective and to the contrary, learned trial Judge has based its findings on surmises and conjectures, which has resulted in miscarriage of justice to him. The accused was made to sign all the documents by putting him under fear. The investigation as conducted, therefore, is stated to be violative of Article 20(3) of the Constitution of India. The documents produced in evidence being fabricated are also hit by Sections 25 and 26 of the Evidence Act and also Section 162 of the Code of Civil Procedure. The case, according to the accused is based on circumstantial evidence. The circumstances relied upon against him do not point out towards his guilt. The alleged disclosure statement Ext.PW-20/A is stated to be not voluntary and rather recorded after subjecting the accused to torture. The same, as such, is hit by Article 20(3) of the Constitution of India. The impugned judgment being not legally and factually sustainable has been sought to be quashed and set and the accused acquitted of the charge.

Arguments addressed:

17. We have heard Ms. Sheetal Vyas, learned counsel representing the accused and Mr. Narinder Guleria, learned Additional Advocate General on behalf of the respondent-State.

18. Ms. Sheetal Vyas, learned counsel has vehemently argued that the impugned judgment is not legally sustainable as the prosecution, according to her, has failed to prove its case against the accused beyond all reasonable doubt. According to learned counsel, the story qua the accused had motive to kill the deceased is highly improbable because had the accused was apprehensive of the deceased having physical relations with his wife, the former had no occasion to consume the liquor with the latter, paramour of his wife. Also that, had the deceased been in physical relations with the wife of the accused, he would have also not taken the risk to consume liquor with him. The prosecution story that deceased was lastly seen on 2.6.2014 around 10.00-11.00 p.m. in the company of accused on Atiala in village Malakwal has not been proved at all. According to Ms. Vyas had the parents of deceased Fatima Bibi (PW-10) and Roshan Deen (PW-12) seen the deceased lying at Atiala and the accused sitting with him there, as a normal human conduct, apprehending danger to his life at the hands of accused with whose wife deceased was in physical relations, would have taken/arranged to take the deceased from Atiala to the house and would have not satisfied only by apprising his wife Begum Bibi (PW-13) that her husband was lying on Atiala. There is no other corroborative material on record lending support to the prosecution case in this regard.

19. The evidence as has come on record by way of another set of witnesses i.e. Manoj Kumar (PW-6), a Teacher by profession, as per his version, he had collected the payment of the school at Nurpur and thereafter came to Malakwal, there he consumed liquor with his friend Ram Bahadur. The deceased and the accused were seen by them at 10.00 p.m. when they were waiting for their another friend Raghu at Atiala. Ram Bahadur has not been examined and as regards the above testimony of Manoj Kumar, the same according to learned defence counsel, cannot be relied upon for want of better particulars as to in which school this witness was working as Teacher and from which office at Nurpur, he had collected the payment of the school. Also that, some record should have been maintained in his school regarding his visit to Nurpur and the record would have also been maintained at Nurpur from where he had collected the payment of the school. Therefore, his testimony without any corroboration thereto cannot be relied upon. As regards the evidence having come on record by way of testimony of Sahib Singh (PW-11) that around 8.30 p.m., the deceased came to liquor vend and took one-one pets of officer choice and thereafter went to the house of the accused and after 10-15 minutes accompanied by him towards the Malakwal chowk, according to learned counsel, cannot be relied upon as nothing has come on record that this witness was working as Salesman in the liquor vend and no record pertaining to sale of liquor to the deceased produced by him.

20. It has, therefore, been urged that story of the last seen is not at all proved on record. The disclosure statement Ext.PW-20/A, according to learned defence counsel is hit by Article 20(3) of the Constitution of India being not recorded in accordance with law. The presence of PW-20 in the police station is highly doubtful as he failed to disclose the purpose for which he had gone to the police station. He is resident of a place i.e. village Matholi not less then 25 kilometers from the place of occurrence i.e. Malakwal. Otherwise also, the recovery of so called weapon of offence i.e. knife Ext.P-1, Pants Ext.P-11 and vest Ext.P-12 though from a place beneath the culvert, however, an open place is hardly of any help to the prosecution. It has, therefore, been urged that the true story has been withheld from the Court and the story of last seen invented to implicate the accused falsely in this case.

21. On the other hand, Mr. Narinder Guleria, learned Additional Advocate General appearing on behalf of the respondent-State has urged that the prosecution case against the accused stands proved beyond all reasonable doubt. The accused was lastly seen in the Company of deceased and this part of the prosecution case, according to learned Additional Advocate General, stands satisfactorily proved from the evidence available on record. The disclosure statement Ext.PW-20/A is stated to be made by the accused voluntarily and the recovery of weapon of offence, the knife Ext.P-1, Pants Ext.P-11 and vest Ext.P-12 of the accused, pursuant to that also proved his guilt. The motive is also stated to be proved in the case in hand.

22. We have critically analyzed the arguments addressed on both sides and also gone through the record of the case.

Our findings:

Circumstantial evidence:

23. Before coming to the evidence available on record and the alleged incriminating circumstances appearing against the accused, it is deemed appropriate to discuss first as to in a case which hinges on circumstantial evidence, how and under what circumstances, an accused can be held guilty for the commission of the offence. We have discussed the well settled legal principles attracted in a case of this nature in our recent judgment dated July 15, 2019 rendered in Criminal Appeal No. 565 of 2016 titled Mohan V. State of Himachal Pradesh. This judgment reads as follows:

“15. The present being not a case of direct evidence and rather hinges upon circumstantial evidence casts an onerous duty on this Court to find out the truth by separating grain from the chaff. In other words, it has to be determined that the facts of the case and the evidence available on record constitute the commission of an offence punishable under Section 302 IPC against the accused or not. However, before coming to answer this poser, it is desirable to take note of legal provisions constituting an offence punishable under Section 302 IPC. A reference in this regard can be made to the provisions contained under Section 300 IPC. As per the Section ibid, culpable homicide is murder firstly if the offender is found to have acted with an intention to cause death or secondly with an intention of causing such bodily injury knowing fully well that the same is likely to cause death of someone or thirdly intention of causing bodily injury to any person and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if it is known to such person that the act done is imminently so dangerous that the same in all probability shall cause death or such bodily injury as is likely to cause death.

16. Culpable homicide has been defined under Section 299 IPC. Whoever causes death by way of an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death can be said to have committed the offence of culpable homicide. Culpable homicide is murder if the act by which death is caused is done with the intention of causing death. Expression “intent” and “knowledge” postulate the existence of a positive mental attitude which is of different degree. We are drawing support in this regard from the judgment of Apex Court in Jagriti Devi vs. State of Himachal Pradesh, AIR 2009 SC 2869.

17. The ingredients of culpable homicide amounting to murder, therefore, are: (i) causing death intentionally and (ii) causing bodily injury which is likely to cause death. In case the accused had motive to cause death of deceased, the eye witness count of the occurrence may not be required, however, where the motive is missing, the prosecution is required to prove its case with the help of the testimony of eye witnesses.

18. The present being a case of circumstantial evidence, the Court seized of the matter has to appreciate such evidence with all care and circumspection and rely upon only if establishes the guilt of the accused alone and rule out all possibilities leading to the presumption of innocence of the accused. The law is no more res integra as support can be drawn from the judgment of a Division Bench of this Court in Sulender vs. State of H.P., Latest HLJ 2014 (HP) 550. The relevant extract of this judgment reads as follows:

[21] It is well settled that in a case, which hinges on circumstantial evidence, circumstances on record must establish the guilt of the accused alone and rule out the probabilities leading to presumption of his innocence. The law is no more res integra, because the Hon’ble Apex Court in Hanumant Govind Nargundkar Vs. State of M.P, 1952 AIR(SC) 343 has laid down the following principles:

“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 be 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.”

[22] The five golden principles, discussed and laid down, again by the Hon’ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 4 SCC 116, are as follows:

(i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established,

(ii) 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,

(iii) the circumstances should be of a conclusive nature and tendency,

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

(v) 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.”

19. Similar is the ratio of the judgment rendered again by this Bench in State of Himachal Pradesh vs. Rayia Urav @ Ajay, ILR 2016 (5) (HP) 213. The relevant text of this judgment also reads as follows:

“[10] As noticed supra, there is no eye-witness of the occurrence and as such, the present case hinges upon the circumstantial evidence. In such like cases, as per the settled proposition of law, the chain of circumstances appearing on record should be complete in all respects so as to lead to the only conclusion that it is accused alone who has committed the offence. The conditions necessary in order to enable the court to record the findings of conviction against an offender on the basis of circumstantial evidence have been detailed in a judgment of this Court in Devinder Singh V. State of H.P, 1990 1 Shim LC 82 which reads as under:-

“1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

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 guilt.

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.

[11] It has also been held by the Hon’ble Apex Court in Akhilesh Halam V. State of Bihar, 1995 Supp3 SCC 357 that the prosecution is not only required to prove each and every circumstance as relied upon against the accused, but also that the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant portion of this judgment is reproduced here-as-under:-

“…………It may be stated that the standard of proof required to convict a person on circumstantial evidence is now settled by a serious of pronouncements of this Court. According to the standard enunciated by this court the circumstances relied upon by the prosecution in support of the case must not only be fully established but the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for as conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt of an accused is to be inferred, should be conclusive nature and consistent only with the hypothesis of the guilt of the accused and the same should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together lead to the only irresistible conclusion that the accused is the perpetrator of the crime……….”

20. This Court has again held in State of Himachal Pradesh Vs. Sunil Kumar, Cr. Appeal No. 326 of 2011 decided on 15.6.2017 as under:

“13. It is more than settled that in case of circumstantial evidence, the circumstances from which inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there be a complete chain of evidence consistent only that the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:

i) The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.

ii) Those circumstances should be of a definite tendency un-erringly pointing out towards the guilt of the accused.

iii) The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime was committed by the accused.

14. Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.

15. In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypothesis and should be consistent that only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173).”

21. The Hon’ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 Supreme Court 1622, has held as under:

“150. 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 than 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 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.

… … … … … …

158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.”

24. Therefore, from the evidence available on record, it has to be determined that the evidence as well as the facts and circumstances of this case are conclusive in nature and consistent only with the hypothesis to the guilt of the accused and not explainable on any other hypothesis except that the accused is guilty of the commission of offence punishable under Section 302 IPC.

25. Now, if coming to the prosecution case, the accused and deceased belong to village Malakwal. The dead body of Fauju Shah was lying on Atiala. It is Balkar Singh (PW-7) who had seen the dead body first on 3.6.2014 around 5.45 a.m., when he came to open his shop situated there. He informed Shukar Deen (PW-1), the complainant.

26. As per the prosecution case itself, Roshan Deen @ Nagu (PW-12) and his wife Fatima Bibi (PW-10) on one side, whereas, their son Fauju Shah deceased on the other, had assaulted each other on 2.6.2014 at 5.00 p.m., when deceased came to home from his duty. PW-10 administered ‘Thapi’ blow on the head of deceased and due to this, blood started oozing out and the injury started bleeding and he also fell down in the courtyard. PW-12 also received injuries who allegedly was taken to hospital in ambulance 108. The police of police station, Nurpur received a telephonic call on that very day at about 8.05 p.m. from ambulance 108 that quarrel has taken place at Malakwal and the injured is being taken to Civil Hospital, Nurpur. The information so received was entered in daily diary vide rapat Ext.PW-27/A. SI Tilak Singh along with other police officials went to Civil Hospital, Nurpur. He conducted investigation there and returned to the police station. Rapat Ext.PW-12/A was entered in daily dairy on his arrival in the police station. What PW-12 Roshan Deen, father of deceased told SI Tilak Singh is that Fauju Shah, the deceased returned to home from his duty at 7.15 p.m. He was under the influence of liquor. He started abusing this witness and thereafter started beating him with a wooden rod. Thereafter, Shukar Deen (PW-1) and his wife Amro also started beating him. Fatima Bibi (PW-10) and her daughter-in-law Begum Bibi (PW-13) came there and saved him from their clutches. Rapat Ext.PW-12/A discloses that he was beaten by Fauju Shah etc. due to their enmity with him. Since he has received injuries on his head, nose, right arm, therefore, expressed his desire to SI Tilak Singh to get him medically examined. SI Tilak Singh got medically examined Roshan Deen (PW-1) vide MLC No. 280/14. Out of five injuries on his person, injuries No. 1 to 3 were found simple in nature and as regards injuries No. 3 and 5 and also 4, the opinion was left to be given after x-ray of the said witness and also the opinion of ENT specialist. The injured PW-12 was called again for x-ray and check-up by the ENT specialist on the next day. No case, however, was registered on the basis of disclosure made by PW-12 before SI Tilak Singh and the action in the matter left to be taken on receipt of final medical opinion. What happened thereafter, nothing has come on record as there is no evidence available on record that x-rays of PW-12 were conducted and he was examined by the ENT specialist also on the next day i.e. 3.6.2014. As a matter of fact, the police has closed the investigation in the matter reported by PW-12 without registering a case and conducting further investigation to take the investigation to its logical end to the reasons best known to it. Though, MLC No. 280/14 was allegedly issued by the Medical officer, Civil Hospital, Nurpur who examined PW-12, however, neither the doctor who medically checked-up PW-12 has been associated in the investigation of the case nor examined as witness and even the post-mortem report Ext.PW-2/A has also not been produced in evidence. Such a conduct attributed to the police itself speaks in plenty about the seriousness and fairness of the investigation conducted.

27. There is another aspect of the matter disclosed by Shukar Deen (PW-1) in his statement Ext.PW-1/A dated 3.6.2014 at 8.10 a.m. to the police after he having seen the dead body of Fauju Shah lying on Atiala with injury on his neck and blood oozing out. According to him, on 2.6.2014, he was present in his house at village Malakwal at 5.00 p.m. His brother Roshan Deen @ Nagu (PW-12) and deceased Fauju Shah had consumed liquor and started quarreling with each other. They exchanged kick and fist blows to each other. Fatima Bibi (PW-10), wife of Roshan Deen @ Nagu picked up a ‘Thapi’ and given its blow on the head of Fauju Shah. Fauju Shah, the deceased received injury on his head. The injury started bleeding and the blood oozed out in the courtyard of the house also. Roshan Deen @ Nagu sustained minor injuries on his person. The ambulance was called and he was taken to Civil Hospital, Nurpur. Around 11.00 p.m. the injured returned to the house from the hospital with his wife Fatima Bibi (PW-10). Also that, today (3.6.2014) around 6.00 a.m. he came to know from Balkar Singh (PW-7) over cellphone that Fauju Shah has been murdered by someone by cutting his throat. He rushed to the spot and noticed that Fauju Shah was murdered by someone with sharp edged weapon. He suspected the hand of Fatima Bibi (PW- 10) and Roshan Deen @ Nagu (PW-12) in the murder of their son Fauju Shah, the deceased because land disputes were going on between them. The statement Ext.PW-1/A of Shukar Deen (PW-1) has been recorded by SI/SHO Megh Nath (PW-27), Police Station. Nurpur. On the basis of the statement Ext.PW-1/A, FIR Ext.PW- 19/A was registered. As per FIR on the day i.e. 3.6.2014, Roshan Deen @ Nagu (PW-12) has also informed the police at 6.40 a.m. that his son Fauju Shah had been murdered at Malakwal chowk on Atiala. He requested the police to visit the spot and conduct investigation. Therefore, after the stage of registration of the FIR, the deceased was suspected to have murdered by his parents, who as per prosecution version itself, had quarreled with each other.

The last seen theory:

28. How the story of last seen came to be introduced, reference can be made to statement of Shukar Deen (PW-1) who tells us that he came to know about the accused and deceased roaming together from Manoj Kumar (PW-6) and Ram Bahadur @ Shiva. The complaint Ext.PW-1/A implicating the parents of deceased was made by him on suspicion. As per his further version, later on the accused confessed before the police in his presence that he had committed the murder of Fauju Shah. His statement to this effect was recorded, however, no such statement has been produced in evidence by the prosecution. This part of the statement of PW-1 is not only unnatural but highly improbable. There is no iota of evidence that the accused had confessed in his presence before the police that it is he who had murdered the deceased. No doubt, as per his version in the cross-examination, his statements were recorded on two occasions. His first statement ( Ext.PW-1/A) was recorded on 3.6.2014 at 8.10 a.m. His supplementary statement that from Manoj Kumar (PW-6) and Ram Bahadur, he came to know about the accused and deceased were together at 10.00 p.m. on 2.6.2014 has been recorded under Section 161 Cr.P.C on 4.6.2014 is belated. Therefore, the last seen story introduced by the prosecution seems to be not correct.

29. No doubt, Roshan Deen (PW-12) and his wife Fatima Bibi (PW-10) while in the witness box have stated that around 10.00 p.m. when they came back in taxi and alighted at Malakwal chowk, their son deceased Fauju Shah was lying on Atiala and accused Rakesh sitting with him. Sahib Singh (PW-11) Salesman also tells us that deceased purchased liquor from him around 8.30 p.m. and went to the house of the accused. After 10-15 minutes, they both came together and went towards Malakwal chowk. According to Manoj Kumar (PW-6) around 10.00 p.m. accused along with deceased Fauju Shah came together towards their houses near Atiala. The accused had bottle of liquor in his hand. Both the accused and deceased had consumed liquor. The deceased had injuries on his face and on reaching Atiala, deceased lie-down there. The accused offered drink to this witness and his friend Ram Bahadur. They, however, refused. On this, the accused filled bottle with water from handpump and consumed liquor. He threw the bottles in the nearby drain. As per further version of this witness, he thereafter went to his house along with his friend Ram Bahadur. Ram Bahadur has not been examined. Begum Bibi (PW-13), wife of deceased tells us that on 2.6.2014, at about 10.00 p.m when her father-in-law Roshan Deen and mother-in-law Fatima Bibi returned from hospital, they informed that Fauju Shah, her husband was lying at Atiala on Malakwal chowk and the accused is with him. She went to sleep after having dinner with her children. Such behaviour and conduct of the parents of deceased PW-10 and PW-12 and that of his wife PW-13 is quite unnatural. There is no explanation as to why they did not deem it appropriate to bring the deceased inside the house, particularly, when as per their version, the accused had been suspecting his (deceased’s) illicit relations with his wife. On seeing the deceased lie-down on Atiala, the parents of deceased otherwise would have suspected something wrong with him and not allowed him to remain there any further. There is no evidence as to at what time Roshan Deen and Fatima Bibi started from the hospital and how much was the distance between the hospital and their house. Therefore, the prosecution story that they came at 10.00 p.m. from the hospital and seen the deceased lie-down on Atiala, whereas, the accused sitting there with him is highly doubtful. On the other hand, if the rapat Ext.PW-12/A is seen, the same has been entered at 21.50 i.e. 9.50 p.m. on that day i.e. 2.6.2014. Though, what is the distance between Civil Hospital, Nurpur and Police Station, Nurpur, again no evidence has come on record, however, SI Tilak Singh had reached in the police station well before 9.50 p.m. In the absence of MLC and also that the doctor who medically checked-up PW-12 has not been examined, it is difficult to believe that PW-10 and PW-12 returned to their house at 10.00 p.m.

30. Again, the statement of Manoj Kumar (PW-6) that he had seen the accused and deceased together at Malakwal chowk where he along with one Ram Bahadur was waiting for arrival of his another friend Raghu there, is doubtful for the reason that his presence, during odd hours, at that place, is not proved for want of supporting material, such as, the name of the school where he was posted as Teacher and the name of the office/place at Nurpur from where he had collected the payment of the school. It is also not known as to why he had come to village Malakwal. If he had come to his friend Ram Bahadur, it is not known that said Ram Bahadur is resident of this village. On the other hand, Manoj Kumar (PW-6) is resident of Khuwara, which place as per his own version, is at a distance of 25 kilometers from Malakwal. His testimony, in such circumstances, cannot be taken as legal and acceptable evidence.

31. Sahib Singh (PW-11), Salesman can’t also be believed to be a witness to the last seen theory introduced by the prosecution, because there is nothing suggesting that he was working as Salesman in the liquor vend. In order to prove that he is a true witness and working as Salesman, the owner/proprietor of liquor vend should have been examined. The record pertaining to his wages etc. should have also been collected and produced in evidence. The prosecution has miserably failed to explain as to why such evidence has been withheld.

32. Even on the last seen theory, the law is also no more resintegra as the Apex Court in State of Goa V. Pandurang Mohite, AIR 2009 SC, 1066 has held as under:-

“16. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:

"22. The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

33. The Hon’ble Apex Court has again held in Ramreddy Rajeshkhanna Reddy V. State of A.P. [2006 (10) SCC 172 as under:-

“The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.”

34. In Kanhaiya Lal V. State of Rajasthan, 2014 (4) SCC 715 has again held as under:-

“17. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

35. Therefore, the last seen theory introduced by the prosecution is even not substantiated on record legally also, because no evidence has come on record that the accused and deceased quarreled after 10.00 p.m. and it is accused alone and no-one else came there till he was murdered.

Motive:

36. Although, it is not necessary for the prosecution to prove motive of the accused to commit the offence. However, in a case, where there is no eye witness and the prosecution case hinges upon the circumstantial evidence alone, the prosecution is required to establish that there was some motive behind the commission of murder of the deceased. In the case in hand, as noticed in para supra, there is no direct evidence and the prosecution case hinges upon the circumstantial evidence. The scientific investigation conducted in this case also not connect the accused with the commission of the offence. As per the prosecution, the accused had suspicion of the deceased having illicit relations with his wife. PW-13 Begum Bibi, wife of deceased while in the witness box has stated that to her knowledge and belief, it is the accused who murdered her husband as he was suspecting that her husband had illicit relations with his wife. The deceased had also told her about the suspicion of the accused regarding alleged illicit relations with his wife. PW-12 Roshan Deen while in the witness box has also stated that the accused killed his son Fauju Shah on the suspicion that he had illicit relations with his wife. Such version of PW-12, however, is an improvement as he has stated so for the first time while in the witness box, as there is no mention to this effect in his statement recorded under Section 161 Cr.P.C. PW-10 Fatima Bibi has also stated that her son deceased was killed by the accused on the suspicion of his illicit relations with his wife.

37. True it is that in the statements of PW-13 Begum Bibi and PW-10 Fatima Bibi, the wife and mother respectively of the deceased recorded by the police during the course of investigation of the case, they both have doubted the hand of the accused in the commission of murder of deceased as according to PW-13 it is her husband, the deceased who himself had told her about it. According to PW-10, it is the wife of accused who had told that the deceased used to do obscene activities with her and also teasing her. However, interestingly enough, had they both been in the knowledge of such doubt of the accused, would have not allowed the deceased to remain in the company of the accused, that too, when he had suffered the injuries in the assault already taken place. Looking to the conduct of Begum Bibi (PW-13), the wife of deceased that on coming to know from PW-12 and PW-13 about her husband that the deceased lying on Atiala, she did not go out and to bring him to the room therefrom and rather went to sleep along with her children as stated by her while in the witness box. The statements under Section 161 Cr.P.C of PW-10 and PW-13 have been recorded by the I.O. on 8.6.2014 i.e. much after the occurrence which had taken place on 2.6.2014. The statement so made by them to the police, therefore, is the result of due deliberation and an afterthought to implicate the accused in this case falsely. In case version of PW-11 Sahib Singh is believed as correct, the deceased was not apprehensive of any danger or threat to him from the accused because as per version of this witness, he not only purchased liquor from the liquor vend on 2.6.2014 around 8.30 p.m. but also went towards the house of the accused. After 10-15 minutes, they both came together and went towards Malakwal chowk. Had the deceased been in the knowledge of accused suspecting his illicit relations with his wife, he would have not taken the risk of joining his company, that too, during odd hours and the purpose was to consume liquor with him. Surprisingly enough, the recording of statement of PW-11 Sahib Singh has also been delayed being recorded on 8.6.2014. When the liquor vend where this witness allegedly was working as Salesman is situated in village Malakwal itself, it is not understandable as to how he would have kept mum for such a long time, had the deceased been come to the liquor vend during that night and purchased the liquor from him. Therefore, for want of any proof that this witness was actually working as Salesman in the liquor vend, the possibility he is a stock witness, cannot be ruled-out. His version, therefore, is also not natural. The Apex Court in Varun Chaudhary V. State of Rajasthan, AIR 2011 SC 72, has held that in a case where there is no eye witness or the scientific evidence to connect the accused with the commission of the offence, the prosecution must establish on record that the accused had some motive to commit the murder of the deceased. This judgment reads as follows:

“23. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eye witness or where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned.”

38. In the given facts and circumstances even if it is believed that the accused had enmity with the deceased, the possibility of he has been falsely implicated in this case at the instance of prosecution witnesses cannot be ruled-out because it is rather PW-12 and his wife PW-10, the parents of deceased quarreled with deceased and both sides sustained injuries in the scuffle. Therefore, the possibility of murder of deceased caused by someone else and on account of enmity, the accused has been implicated falsely cannot also be ruled-out. The Apex Court in State of Punjab V. Sucha Singh, AIR 2003 SC 1471, has held as under:-

“11…..When the basic foundation of the prosecution case crumbled down, the motive becomes inconsequential. At the same time, animosity is a double-edged sword. It could be a ground for false implication, it could also be a ground for assault. In the instant case, in view of the facts and circumstances as discussed above, the motive, however, strong merely creates a suspicion. Suspicion cannot take the place of proof of guilt.”

39. In view of reappraisal of the given facts and circumstances and also the evidence discussed hereinabove, the motive to kill the deceased attributed to the accused is not at all proved and the possibility of latter having been implicated in this case falsely cannot be ruled-out.

Disclosure Statement Ext.PW-20/A and recoveries pursuant to that.

40. The Apex Court in Geejaganda Somaiah V. State of Karnataka, 2007(2) R.C.R (Criminal) 255: 2007(9) SCC 315, has held that no doubt the statements recorded under Section 27 of the Evidence Act are generally termed as disclosure statement leading to the discovery of facts which presumably are in exclusive knowledge of the maker, however, keeping in view that the same are being frequently misused by the police, the Court should be vigilant while placing reliance thereon. This judgment reads as follows:

“21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.

22. As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act.”

41. Therefore, a duty is casted upon this Court to scrutinize the evidence qua this aspect of the matter produced by the prosecution with all caution and circumspection.

42. As per the record, the accused was arrested on 4.6.2014. The alleged disclosure statement was recorded on 6.6.2014, after about 48 hours of his arrest. In case any such statement had to be made by the accused voluntarily, he would have made the same during the course of his interrogation conducted by the I.O. immediately after his arrest on 4.4.2014. Therefore, making of such statement voluntarily by the accused on 6.6.2014 while in the police custody is highly doubtful. The Apex Court in Pohalya Motya Valvi V. State of Maharashtra, (1980) 1 SCC 530, a case where the disclosure statement of the accused was recorded after 48 hours, has held as under:-

“16. It may be recalled that the appellant was in custody of the Police Patil from 2nd Oct. 1970 and it is alleged that he had pointed out the place where the dead body was kept, evidence on which point has not been accepted by both the courts. He was formally arrested on 3rd Oct. 1970 and he is alleged to have made a statement leading to the discovery of the spear on 4th Oct. 1970. He was thus in custody for nearly 48 hours and was unceasingly questioned both by the relatives of Motibai and by the Police Patil Kutrya before the investigating Officer entered the scene. In this background it is difficult to believe that it was for the first time the appellant gave information to the PSI leading to the discovery of the spear. It is more probable to believe that the place where the dead body and the spear were lying were already known and, therefore, it is not possible to accept the suggestion that it was for the first time the appellant gave information on 4th Oct. 1970 leading to the discovery of the spear.”

Therefore, it is doubtful that the statement Ext.PW- 20/A has been made by the accused while in custody voluntarily and for the first time.

43. Now, coming t

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o the evidence qua this aspect of the matter, the I.O. PW-27 while in the witness box has stated that on 6.6.2014 while in custody, the accused had made the disclosure statement that the knife Ext.P-1, by which he murdered deceased Fauju Shah, pants Ext.P-11 and vest Ext.P-12 which he was wearing at that time were thrown by him at a distance of one kilometer from Malakwal chowk towards Lahru under one culvert. When cross-examined, no doubt, he has denied the suggestion that neither the accused made any disclosure statement nor got the alleged recovery effected and that the memos were prepared by him at his own in the police station. It is also denied that the statements of witnesses were recorded by him at his own to implicate the accused in a false case in connivance with the family members of the deceased. PW-20 Munshi Ram is a witness to the disclosure statement Ext.PW-20/A. According to him, he was in the police station in connection with his work, when the accused made the disclosure statement. In his statement recorded under Section 161 Cr.P.C, nothing is there that he was present in the police station in connection with some work. Therefore, this part of his statement is the result of improvement he made while in the witness box. Another witness Arood Singh to the disclosure statement has not been examined. 44. Now if coming to the place of recovery, PW-9 Kushwant Singh has admitted that place below culvert from where the recoveries were allegedly effected is an open place and anyone can have access to that. This witness has further admitted that the accused never made any disclosure statement in his presence. He also admits that knives similar to the knife Ext.P-1 and the clothes i.e. pants and vest recovered by the police are generally available in the market. They are the only material witnesses to this part of the prosecution case. The close scrutiny of their respective statements and also the investigation right from the very beginning is not fair nor the conduct of the Investigating Officer is above board. The possibility of recoveries so effected and the disclosure statement Ext.PW-20/A fastened upon the accused, cannot be ruled-out. Therefore, no findings of conviction could have been recorded against the accused on such evidence having come on record qua the so called disclosure statement made by the accused and the recoveries effected pursuant to that. Consequently, the recovery memos Ext.PW-4/A and Ext.PW-4/B and site plan Ext.PW-27/C relied upon to prove the recovery of knife, pants and vest etc. at the instance of the accused can’t also be believed to be the genuine documents. Scientific investigation: 45. Now if coming to the scientific investigation conducted in this case, true it is that as per chemical examiner’s report, human blood of group ‘B’ was detected in the blood stained soil lifted from the spot, blood lifted on cotton cloth, blood stained on dagger/knife, T-shirt and pants of the accused, T-shirt and vest of the deceased and blood samples of the deceased. However, such evidence cannot also be taken as conclusive proof to infer that it is the accused alone who had killed the accused for the reason that the blood group ‘B’ is mostly common blood group and judicial notice thereof can be taken. The accused may also have blood group ‘B’. However, the grouping of the blood of the accused has not been done. Even DNA profiling has also not been conducted. It is not proved that the pants and vest having allegedly blood stains were worn by the accused while in the company of deceased. PW-11 Sahib Singh and PW-6 Manoj Kumar have also not stated so nor the same got identified from them while in the witness box so that something tangible suggesting that the accused had worn the same when seen by them in the company of deceased. The throat of deceased was found to be cut with sharp edged weapon. The possibility of such weapon was knife Ext.P-1 cannot also be ruled-out, however, it is the accused alone who had inflicted the fatal injury to the deceased is not proved beyond all reasonable doubt. The investigating agency, in our considered opinion, has concealed the true facts from the Court either for some extraneous considerations or its inability to trace out the real culprit. The accused seems to have been made an escape goat and implicated falsely in this case. Therefore, the scientific investigation conducted in this case is also of no help to the prosecution. Medical evidence: 46. The medical evidence as has come on record by way of testimony of PW-2 and PW-3 and also the post-mortem, no doubt, is suggestive of that the present is a case of culpable homicide amounting murder because it is on account of multiple injuries on vital parts of the body of deceased caused his death. There, however, remains the mystery as to who has killed him so brutally. As per prosecution case itself, initially, deceased on the one hand and his parents PW-10 and PW-12 on the other, have assaulted each other. PW-1 Shukar Deen also joined hand with the deceased in assaulting PW-10 and PW-12 and other members of their family. The death of the deceased may be the result thereof, is just possible and the story of last seen and also the murder of deceased by the accused has been introduced on due deliberation and for extraneous considerations. Therefore, no findings of conviction could have been recorded, in view of such sketchy evidence available on record. Conclusion drawn: 47. In view of the discussion hereinabove, we are satisfied that the present is a case of sketchy evidence against the accused. Whatever evidence having come on record by way of statements of PW-1 Shukar Deen, PW-10 Fatima Bibi, PW-12 Roshan Deen and PW-13 Begum Bibi cannot be relied upon against the accused as they are interested witnesses. The evidence as has come on record by way of their respective testimony is otherwise also inconsistent and contradictory in nature. They even have improved their previous version. Learned trial Court, as such, has not appreciated the evidence available on record in its right perspective and to the contrary recorded its findings on the basis of conjectures and surmises. Such an approach has certainly resulted in miscarriage of justice to the accused. He has been convicted while placing reliance on highly inadmissible evidence. The impugned judgment, as such, is neither legally nor factually sustainable. 48. Consequently, this appeal succeeds and the same is accordingly allowed. The accused is acquitted of the charge under Section 302 IPC framed against him. The accused is serving out the sentence. He be set free forthwith, if not required in any other case. The Registry to prepare the release warrants accordingly. The amount of fine, if already deposited, be refunded to the accused against proper receipt.
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