Dismissed

State of Hp v. Kamal Bahadur

Himachal Pradesh HC8 Nov 2024CR.A/194/2014

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the acquittal of the accused in a murder case. Upholding the trial court's view, the court found the evidence, including DNA reports and injuries on the accused, insufficient to prove guilt beyond reasonable doubt, noting the presence of an equally plausible hypothesis of innocence.

What did the court decide?

The appeal was dismissed; the appellant was directed to furnish bail bonds within four weeks under Section 481 of the BNSS.

State of Hp Vs Kamal Bahadur — Murder and Culpable Homicide | Himachal Pradesh HC (2024)

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2024:HHC:10909

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 194 of 2014 Reserved on: 4.11.2024 Date of Decision: 08.11.2024

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State of H.P. ...Appellant. Versus Kamal Bahadur ...Respondent.

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Coram
*Hon’ble Mr Justice Vivek Singh Th*	*akur, Judge.*
*Hon’ble Mr Justice Rakesh Kainth*	la,*Judge.*
*Whether approved for reporting?*¹	*Yes.*
For the Appellant/State :	Mr. S.D. Advocate	Vasudeva, Deputy General.
For the Respondent :	Mr. N.K. Advocate, Thakur,A	Thakur, Senior with Ms. Shalini dvocate.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment 20.12.2013, passed by learned Additional Sessions Judge-I, Shimla, Camp at Rohru, vide which the appellant (accused before the learned Trial Court) was acquitted of the commission of offences punishable under Sections 452 and 302 read with Section 34 of the Indian Penal Code (IPC). (Parties shall hereinafter

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 302, 452 and 323 read with Section 34 of IPC. It was asserted that Suraj Bahadur visited the Police Station on 7.5.2012 and informed that the dead body of Man Bahadur was lying on Pokhta road near Sharog. SI Ramesh Thakur (PW15) and other police ofÏcials went to the spot to verify the correctness of the information. The informant Suraj Bahadur made a statement that he was working as a labourer with Roop Singh (PW9) for about one year. His family members resided with him. Man Bahadur, Dil Bahadur, Bobby, and Chini Bahadur visited the informant’s house on 6.5.2012 at about 4.00 PM. All of them consumed liquor. Yash Pal, Raj Pal and Prashant visited the informant’s house at 8.30 pm where they quarrelled with Man Bahadur and gave beatings to him and the informant. All of them threatened Man Bahadur to pay ₹1,000/- or they would kill him. The incident occurred because Man Bahadur had taken liquor from them on loan. They left thereafter. Chini Bahadur and Dil Bahadur also left the

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informant’s house during the night. Bobby and Man Bahadur slept in one room and the informant and his wife Pushpa slept in another room. Two persons visited the informant’s house at about 11-12 PM and attacked Man Bahadur. The informant could not identify them due to darkness and because he (the informant) was heavily intoxicated. The informant found in the morning that Man Bahadur was murdered and his naked body was thrown on the roadside. Statement (Ex.PW15/B) was reduced into writing and was sent to the Police Station, where FIR (Ex.PW14/E) was registered. SI Ramesh Thakur (PW15) conducted the investigation. He seized the dead body vide memo (Ex.PW9/A) in the presence of Roop Singh and Suraj Bahadur. He prepared inquest reports (Ex.PW9/C and Ex.PW9/D). He took photographs of the dead body (Ex.PW15/A1 to Ex.PW15/A11). SI Ramesh Thakur (PW15) prepared the site plan (Ex.PW15/C). He seized the clothes of the deceased vide memo (Ex.PW1/A). Suraj Bahadur identified the clothes as belonging to the deceased. SI Ramesh Thakur prepared the spot map (Ex.PW15/D). He found a pair of slippers which were seized vide memo (Ex.PW9/B). He handed over the case property to MHC Amrit Singh (PW14), who made an entry in the register of Malkhana (Ex.PW14/A) and

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deposited the case property in Malkhana. Dr. Dalip Sharma (PW10) conducted a postmortem examination of the deceased. He found multiple injuries on the dead body which were sufÏcient to cause death and could have been caused by fist and kick blows. He issued the report (Ex.PW10/B). He handed over the viscera and the blood sample on the FTA card to the police ofÏcial accompanying the dead body. These were deposited with HC Amrit Singh (PW14), who deposited them in Malkhana and made an entry at Serial No. 466 (Ex.PW14/B). The police arrested the accused on 8.5.2012. ASI Ramesh Thakur scraped the dirt from the feet of the accused and put it inside the box. The box was sealed in a parcel. The dirt from the sleepers was also scraped and seized vide memo (Ex.PW4/A). Accused Kamal Bahadur made a disclosure statement (Ex.PW4/C) stating that he could get his clothes recovered. He got his pants and shirt recovered from his house which were seized vide memo (Ex.PW15/N). These were put in a parcel and the parcel was sealed with seal ‘M’. The seal impression (Ex.PW15/O) was taken on a separate piece of cloth. SI Ramesh Thakur prepared the site plan (Ex.PW15/P) and took a photograph (Ex.PW15/Q). Hardyal Singh, Patwari, visited the spot and prepared tatima (Ex.PW5/A)

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and Jamabandi (Ex.PW5/B). The case property was deposited with HC Amrit Singh, who made an entry in the register of Malkhana at Serial No. 467 (Ex.PW14/C) and deposited the case property in Malkhana. He handed over the case property to Constable Kapil Dev (PW11) on 15.5.2012 with a direction to carry them to FSL Junga vide RC No. 43/12 (Ex.PW14/D). Constable Kapil Dev (PW11) deposited all the articles in FSL, Junga and handed over the receipt to HC Amrit Singh on his return. Dr Pawan Jhalta (PW8) medically examined the accused and found multiple abrasions on both legs. He issued MLC (Ex.PW8/B). The abrasions could have been caused by striking against the rough surface. The results of the analysis (Ex. PX, Ex. PY and Ex. PZ) were issued in which it was shown that ethyl alcohol was detected in the viscera, human blood of group ‘O’ was detected on the pants of the accused but it was insufÏcient for serological examination, DNA profile obtained from the jacket and shirt of the deceased matched with the DNA profile obtained from the FTA card of deceased Man Bahadur and DNA could not be extracted from the pants of accused Kamal Bahadur. The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was

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prepared and presented before the learned Judicial Magistrate First Class, Court No.1, Rohru, who committed it to the learned Sessions Judge, Shimla for trial.

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Learned Sessions Judge, Shimla assigned the case file to learned Additional Sessions Judge, Shimla, Camp at Rohru (learned Trial Court).

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Learned Trial Court charged accused Kamal Bahadur with the commission of offences punishable under Sections 302 and 452 read with Section 34 of IPC. Learned Trial Court further held that beating the deceased during the daytime was a different transaction that could not be connected to the murder of the deceased committed in the night. Hence, the charge sheet was ordered to be presented against other accused before learned Judicial Magistrate First Class-1, Rohru.

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The prosecution examined 15 witnesses to prove its case. The prosecution failed to complete the evidence despite repeated adjournments, hence the evidence was closed by the order of the Court on 13.11.2013. Arjun Gurang (PW1) stated about the recovery of the dead body. He also witnessed the seizure of the clothes of deceased Man Bahadur. Chander Bahadur (PW2) proved the incident which took place during the day time. Des Raj

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(PW3) is the witness to recovery but he did not support the prosecution case. Constable Brij Lal (PW4) is the ofÏcial witness to the recovery and the disclosure statement made by the accused. Hardyal Singh (PW5) prepared the tatima and issued copy of Jamabandi. Dr. Ravinder (PW6) obtained the blood sample of the accused on FTA card for DNA analysis. Inspector Amar Chand (PW7) prepared the challan and the supplementary challan. Dr. Pawan Jhalta (PW8) conducted the medical examination of the accused. Roop Singh (PW9) is the owner of the house where the informant was residing. He also witnessed various recoveries but did not support the prosecution case. Dr. Dalip Sharma (PW10) conducted the postmortem examination of the deceased. Kapil Dev (PW11) and HC Rattan Dass (PW13) carried the case property to FSL, Junga. Constable Anil Kumar (PW12) brought the case property and the result of analysis from FSL, Junga. HC Amrit Singh (PW14) was working as MHC with whom the case property was deposited. SI Ramesh Thakur (PW15) conducted the investigation.

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The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was innocent and that he was falsely implicated.

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Learned Trial Court held that as per the prosecution case, Pushpa and Bobby had identified the accused and Dinesh as the persons who had dragged the dead body of Man Bahadur during the night, however, they were not examined and an adverse inference had to be drawn against the prosecution. There was no other evidence to connect the accused with the commission of crime. The clothes stated to have been recovered at the instance of the accused contained blood but this blood could not be connected to the deceased. There was no other evidence showing that the accused had committed the crime. Hence, the accused was acquitted of the commission of offences punishable under Sections 452 and 302 read with Section 34 of IPC.

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Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court appreciated the evidence in a slipshod and perfunctory manner. The reasoning of the learned Trial Court was unreasonable and unsustainable. The testimonies of ofÏcial witnesses were discarded without any reason. The charge sheet specifically mentions that Man Bahadur had given beatings to Kamal Bahadur and the accused killed Man Bahadur

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to avenge the beatings. The recovery of the shirt and pants made at the instance of the accused was duly proved and learned Trial Court erred in discarding it. The statement of the Medical OfÏcer proved the homicide. The injuries on the person of the accused were also proved. Pushpa, Bobby, and Suraj Bahadur have left India and they could not be produced despite the best efforts of the prosecution. The prosecution version could not have been discarded due to their non-examination. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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We have heard Mr. S.D. Vasudeva, learned Deputy Advocate General, for the appellant/State and Mr. N.K. Thakur, learned Senior Counsel assisted by Ms. Shalini Thakur, learned counsel for the respondent/accused.

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Mr. S.D. Vasudeva, learned Deputy Advocate General, for the appellant/State submitted that the learned Trial Court erred in acquitting the accused. The prosecution had succeeded in proving the recovery. The accused had sustained injuries and blood was found on his clothes for which he had not provided any explanation. Medical evidence proved the homicide. Learned Trial Court ignored all these aspects. Hence, he prayed that the

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present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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Mr. N.K. Thakur, learned Senior Counsel for the respondent/accused submitted that the learned Trial Court had properly appreciated the evidence. Reports of FSL clearly showed that the blood stains found on the pants of the accused were not connected to the deceased. The accused had also sustained injuries and the Medical OfÏcer admitted that the injuries could be caused while working as a labourer in the field. Learned Trial Court had taken a reasonable view and this Court should not interfere with the same. Hence, he prayed that the present appeal be dismissed.

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We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is

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illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:

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“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

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26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

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27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “ two-views theory ” has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

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28. In Selvaraj v. State of Karnataka [ Selvaraj v. State of Karnataka , (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19] : (SCC pp. 236-37, para 13)

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“ 13 . Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : (SCC p. 643, para 9)

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‘ 9 . … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with

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appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’”

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29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522] , the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

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“ 7 . It is well settled that:

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7.1 . While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586 ] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).

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7.2 . With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807] ).

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7.3 . If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of

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Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320] ).”

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The prosecution case is based upon the circumstantial

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evidence. The law relating to circumstantial evidence was explained by the Hon’ble Supreme Court in Raja Naykar v. State of Chhattisgarh, (2024) 3 SCC 481: 2024 SCC OnLine SC 67 as under:

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“16. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalised in the judgment of this Court in Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116: 1984 SCC (Cri) 487: 1984 INSC 121] , wherein this Court held thus : (SCC pp. 184-85, paras 152-54)

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“ 152 . Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of M.P. [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091] This case has been uniformly followed and applied by this Court in a large number of later decisions up-todate, for instance, the cases of Tufail v. State of U.P. [Tufail v. State of U.P., (1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ram Gopal v. State of Maharashtra [Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091]: (Hanumant case [Hanumant v. State of M.P., (1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091], SCC pp. 76-77, para 12)

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‘ 12 . It is well to remember that in cases where the evidence is circumstantial, the circumstances from which the conclusion of guilt is to be drawn should

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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 conclusive 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.’

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

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “maybe” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: 1973 SCC (Cri) 1033] where the observations were made : (SCC p. 807, para 19)

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‘ 19 . … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “maybe” and “must be” is long and divides vague conjectures from sure conclusions.’

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

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

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

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(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.

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154 . These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” (emphasis in original)

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17. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused “must be” and not merely “may be” proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities, the act must have been done by the accused.

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18. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is

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presumed to be innocent unless proved guilty beyond a reasonable doubt.”

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The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The prosecution is relying upon the recovery of the clothes of the accused pursuant to the statement made by him under Section 27 of the Indian Evidence Act and the injuries sustained by the accused. Dr. Pawan Jhalta (PW8) admitted that injuries could be caused while working as a labourer which provides a valid explanation and cannot be discarded without any reason.

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The reports of the analysis (Ex. PZ) mention that blood was detected on the pants of accused Kamal Bahadur but it was insufÏcient for serological examination. The report (Ex. PX) shows that amplifiable DNA could not be extracted from the pants of the accused despite repeated attempts. Therefore, these reports do not connect the accused with the commission of the crime. They only show the presence of the blood on the pant of the accused. Keeping in view the fact that the prosecution has come with the specific case that the accused had also sustained injuries on his legs, the presence of the blood on the pant of the accused was natural and the prosecution cannot derive any

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advantage from the detection of the blood in the chemical analysis.

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There is no other witness. Pushpa and Bobby had identified accused Kamal Bahadur and Dinesh as per the prosecution; however, they were not examined before the Court and learned Trial Court had rightly drawn an adverse inference against the prosecution for withholding them.

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Chander Bahadur (PW2) deposed about the incident which took place during the day and the evening. As per him, Yash Pal, Raj Pal and Prashant visited the informant’s house and gave beatings to the deceased. He has not mentioned anything about the presence of the accused. Hence his testimony does not connect the accused with the commission of the crime.

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Investigating OfÏcer SI Ramesh Thakur (PW15) stated in his cross-examination that there was no direct evidence regarding the involvement of the accused.

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SI Ramesh Thakur (PW15) had also taken scrapping from the feet of the accused and the slippers of the deceased, however, these were not sent to the forensic laboratory to determine whether the scrappings were identical or different.

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Therefore, this piece of evidence also does not connect the accused with the commission of the crime.

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There is no other witness to the incident and the learned Trial Court had taken a reasonable view which could be taken based on the evidence led before the learned Trial Court. This Court will not interfere with the view of the learned Trial Court when such a view was reasonable and could have been taken based on the material placed before the learned Trial Court.

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No other point was urged.

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In view of the above, there is no reason to interfere with the judgment of the learned Trial Court. Consequently, the present appeal fails and the same is dismissed.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellant is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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