Allowed

Aman Kumar v. State of Hp

Himachal Pradesh HC12 Jul 2024CR.A/514/2019

Case brief

AI extract

What is this about?

High Court allowed an appeal against a murder conviction and sentence because the trial court failed to establish a complete chain of circumstantial evidence. Key flaws included unrelied confession, conflicting DNA report timelines, and lack of motive or last-seen proof.

What did the court decide?

Impugned judgment and order of conviction and sentence set aside. Appellant ordered to be released immediately if not required in another case.

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

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr. A. No. 514/2019 Reserved on: 9.7.2024 Decided on : 12.7.2024

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Aman Kumar Rana	….Appellant
Versus
State of Himachal Pradesh	….Respondent

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Coram:

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge . The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?¹ No

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For the Appellants:	Mr.	Ajay	Koc	hha	r, Se	nior
	Advo	cate with	Mr.	Viv	ek Sha	rma
	and Advo	Mr. cates.	Var	un	Chau	han,
For the Respondent:	Mr.	I.N. Me	hta	Sr.	Additi	onal
	Advo	cate G	ener	al	with	Mr.
	Navle	sh Ver	ma,	Ms.	Shar	mila
	Patia Negi,	l, Addl. Dy.A.G.	A.Gs	. a	nd Mr.	Raj

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Justice Tarlok Singh Chauhan, Judge

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The appellant/convict has filed the instant appeal against the judgment and order, dated 7.9.2019 passed by the learned Additional Sessions Judge-I Kangra at Dharamshala, H.P., whereby he has been convicted and sentenced to undergo

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1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

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rigorous imprisonment for life and to pay a fine of Rs.10,000/under Section 302 of the Indian Penal Code (for short, “IPC”).

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2 The case of the prosecution, in brief, is that on 10.11.2015, at about 8:25 P.M., police of Police Post Dr. RPGMC Tanda telephonically informed at Police Post Yol that one Ramesh Chand alias Tiddu was being brought by his relatives to Dr. RPGMC Tanda in an injured condition, but succumbed to the injuries on the way to hospital and Medical Officer has declared him as "brought dead". On the basis of this information, Rapat No. 3 came to be entered in the Police Post Yol and SI Palam Singh along with HC Swaroop Singh, HHC Sanjeev Kumar and HHC Madan Lal visited Tanda and kept the dead body in the mortuary in a safe condition. A local resident namely Tilak Raj met the police party at Tanda, who disclosed that he had brought the deceased from the spot to Tanda in an injured condition and then he was taken to the spot at Tang and the place of incident was preserved and RFSL team was called. In presence of the RFSL Team, photographs of the spot were got clicked and blood stained soil, hair, one shoe, a bundle of Biri and one loose Biri were taken into possession vide separate seizure memos.

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3 During investigation, PW1, complainant, Sanjay

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Kumar got recorded his statement to SI Palam Singh, stating therein that on 10.11.2015, at about 7:00/7:15 p.m., he was going to his home from Tang Bazaar. He was having torch as it had become dark. The complainant further stated that when he reached the stairs below the Ramleela Ground, Tang and pointed his torch towards the way to school side, he noticed half head and half shoulder of a boy in the gallery and when he reached there to see the person, no one was found there. When the complainant went ahead of the school, then he saw the deceased lying on the earth near the store of the school. Blood was oozing from his mouth and a phone was lying near his feet. After seeing him, the complainant went to the home and informed his family members. Thereafter, he informed Sandeep Kumar, driver, who was also resident of village Tang, on phone and family members of deceased came to the spot in a car and took him to Tanda for medical treatment. Thereafter, he went to his house.

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4 The complainant further stated that when he again visited the spot, no mobile was lying there and the position of the deceased was also changed. At that time, the complainant

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was accompanied by Vijay Kumar and Vinay Kumar alongwith family members of deceased. He suspected that the deceased had been beaten by someone, due to which he died.

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5 On the basis of this statement of the complainant, F.I.R. No. 216/2015 dated 10.11.2015 was registered under Section 302 of the Indian Penal Code. The investigation of the case was conducted by Palam Singh Incharge, Police Post Yol. The post-mortem examination of the dead body of deceased was got conducted by Forensic Expert at RPGMC Tanda through HC Swaroop Singh after filling up forms 25.35 and 25.39 in presence of legal heirs of the deceased and after taking the photographs of the dead body. The post-mortem report was issued by the doctor and he reserved his opinion till the report of RFSL. The injuries on the mouth and body and ligature marks on the neck were also opined by the doctor.

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6 During post-mortem, hair in the hand of the deceased, blood stained clothes, shoe and blood stains, preserved by the doctor, were taken into possession by the police. The spot was inspected by the RFSL Team and the Investigating Officer prepared the spot map. Different blood stains and hair were taken into possession from the spot.

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Thereafter, hair of seven suspects were got preserved from the Medical Officer, Zonal Hospital, Dharamshala.

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7 As per the prosecution case, the convict had beaten the deceased and on the same day, he had snatched the purse of PW35 Sushil Kumar containing Rs. 1500/- and for which, PW35 had got registered an F.I.R. No. 220/2015 dated 12.11.2015, under Sections 382, 323, 504, 506 IPC at Police Station Dharamshala, against the appellant and investigation of this case was being conducted by ASI Jitender Kumar. The convict was arrested in this case on 12.11.2015 and was remanded to police custody till 17.11.2015. During police custody the convict admitted that he had committed murder of the deceased. The copy of the case diary regarding the investigation of the appellant in case FIR No. 220/2015 was also taken into possession. The appellant was released on bail by the order of the court in case F.I.R. No. 220/2015 on

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17.11.2015 but was arrested on the same day i.e. on 17.11.2015 in the present case i.e. FIR No. 216/2015 and information qua his arrest was given to his father on mobile. The appellant was got medically examined and his MLC was procured. During police custody, the convict had confessed his

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guilt and disclosed to the police in presence of witnesses Hari Singh and Tulsi Ram that he could get identified the place, where he had committed the murder of deceased.

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8 The appellant also got recorded his statement under Section 27 of the Indian Evidence Act, which led to recovery of his one blood stained hood and one blood stained jean, worn by him at the time of incident, from the hut of Parjeet Kumar Gorkha. Thereafter, the appellant also got demarcated the place of incident at Tang. The samples preserved by the doctor were sent to RFSL Dharamshala for chemical examination and as per the report of RFSL, the hair preserved from the hand of deceased were matched with the hair of deceased and do not match with the hair of the appellant and other suspects. The shoe taken from the spot and the shoe taken by the Medical Officer during post-mortem examination were found to be of deceased.

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9 The appellant did not get recovered the mobile of the deceased, therefore, Section 201 IPC was inserted in the challan. CDR of the mobile phone was procured, according to which, it was found that the mobile was switched off from about 7.36.33 p.m. on 10.11.2015.

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10 Statements of the witnesses were recorded

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alongwith supplementary statement of complainant. On the basis of RFSL Reports, the doctor gave his final opinion that the cause of death in this case was neck compressing consistent with ligature strangulation. The deceased was intoxicated with ethylalcohol (79.34%) at the time of incident. As per sample procured, the blood group of the deceased was found "A" and the blood collected from the hood and pants was also found to be of group "A". However, the blood was not found sufficient for grouping of blood, therefore, the blood samples of the deceased as well as that of the appellant were sent for DNA profiling to SFSL Junga.

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11 After completion of the investigation, challan was prepared and presented in the court for trial. After the receipt of the report from SFSL Junga regarding DNA profiling, the police filed supplementary challan before the court. The appellant was charged for the commission of offences punishable under Sections 302 and 201 IPC, to which he pleaded not guilty and claimed trial.

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12 The prosecution examined as many as 35 witnesses in support of its case. After closure of the

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prosecution’s evidence, the appellant was examined under Section 313 Cr. P.C., wherein he pleaded his innocence and claimed false implication. The appellant was also called upon to enter into his defence and he examined DW1 Surinder Kumar.

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13 The learned trial court, after evaluating the oral as well as documentary evidence, though acquitted the appellant under Section 201 IPC, but convicted and sentenced him under Section 302 IPC, as aforesaid and hence, the instant appeal.

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14 It is vehemently argued by Mr. Ajay Kochhar, learned Senior Advocate, assisted by Mr. Vivek Sharma, Advocate, that the findings recorded by the learned trial court are totally perverse and being contrary to evidence on record are liable to be set aside and therefore the appellant deserves honourable acquittal. On the other hand, Mr. I.N. Mehta, learned Senior Additional Advocate General, would argue that the appellant has been convicted and sentenced for serious and heinous crime and therefore, such findings being based on evidence on record warrant no interference and therefore, the appeal be dismissed.

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15 We have heard the learned counsel for the parties and have also gone through the records of the case carefully.

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16 The cardinal principle of criminal jurisprudence has remained impassive. The prosecution has to prove its case beyond all reasonable doubts. Appearance of serious doubt in the prosecution case only helps the case of accused. More serious the offence, more arduous is the duty cast upon prosecution to discharge its burden strictly in accordance with law. In absence of direct evidence, circumstances relied upon by the prosecution have to satisfy the same standard of proof i.e. beyond all reasonable doubts. Once this barrier is successfully crossed, it is to be shown that all the circumstances form a complete chain of facts suggesting only one hypothesis i.e. the guilt of the accused.

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17 In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 the Hon’ble Supreme Court held as under:-

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“14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The

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circumstances concerned “must” or “should” and not “may be” established;

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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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18 In Ramanand @ Nandlal Bharti Vs State of

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Uttar Pradesh , 2022 SCC Online SC 1396 , the legal position

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has further been reiterated as under:-

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PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE

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45. In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:

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a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; &

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b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).

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46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

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1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

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2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

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3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

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4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.

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50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid

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settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.

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19 It will also be gainful to reproduce following extract from the judgment passed by the Hon'ble Supreme Court in

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Ramesh Bahi and another vs. State of Rajashtan (2009) 12 SCC 603 :-

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“7. In support of the appeal learned counsel for the appellants submitted that the circumstances highlighted do not establish the accusations. Learned counsel for the respondent-State on the other hand supported the judgment.

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8. “10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of

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Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

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11. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence'.

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12. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests

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upon circumstantial evidence, such evidence must satisfy the following tests:

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(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

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(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'

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13. In State of U.P. v. Ashok Kumar Srivastava, (1992)2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

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14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who

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asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

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15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.

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16. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

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'10. ….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.'

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17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must' or should' and not `may be' established;

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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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These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and in State of U.P. v. Ram Balak & Anr. [2008 (13) SCALE”

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20 We are governed by rule of law. No conviction can be recorded on assumption. Prosecution has to discharge its burden by proving the guilt of accused beyond all reasonable doubts and for such purposes, it has to prove the fact in issue on the basis of relevant and admissible evidence. Merely, because police get knowledge about the culprit either from illegal confession extracted from him or from any other source will not absolve the prosecution from its duty to prove the guilt of the accused in accordance with law.

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21 In order to convict the appellant, the prosecution

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had relied upon on the following circumstances before the learned trial court:-

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The death of the deceased was homicidal.

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The statement made by the accused during investigation in police custody of another case regarding quarrel with the deceased on the spot, where the dead body of the deceased was lying.

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The disclosure statement made by accused to the police regarding the recovery of clothes worn by him at the time of occurrence and recovery of blood stained clothes of accused pursuant to disclosure statements of the accused.

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Matching of blood stains on the hood of the accused with the blood of the deceased in the DNA profiling.

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22 The learned trial court after answering

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circumstances No. 1, 3 and 4 in favour of the prosecution convicted and sentenced the appellant as aforesaid, whereas circumstance No. 2 was answered against the prosecution.

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23 The learned counsel for the appellant has not been able to dispute that the death of the deceased in the instant case was homicidal and this fact stands duly proved by PW21 Dr. Sushil Sharma, who conducted the post-mortem examination of the deceased and opined that the death of the deceased had been caused due to neck compression consistent with ligature strangulation, thus findings of circumstance No.1 are sustained and upheld.

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24 Now, we proceed to examine circumstances No. 3 and 4 to enable us to come to the conclusion as to whether the prosecution has been able to prove its case beyond reasonable doubt. However, before proceeding further, it needs to be borne in mind that – (i) there is no eye witness of the alleged occurrence; (ii) there is no enmity between the

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deceased and the appellant; (iii) there is no weapon used for the commission of the alleged offence nor any weapon was ever recovered; and (iv) no motive has been assigned to the appellant for assaulting or murdering him.

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Circumstance No.3

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25 Learned trial court, while answering the circumstances in favour of the prosecution has relied upon socalled disclosure statement of the appellant, which led to the recovery of the blood stained clothes.

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26 For this purpose, testimony of PW-33, Investigating Officer was taken as main sheet anchor, who stated that during the interrogation of the appellant, he had disclosed vide memo, Ext. PW-3/A in presence of witnesses PW-23 Hari Singh and PW-3 Tulsi Ram about the concealment of the clothes in the Jhuggi at Village Chatehar. PW-3 Tulsi Ram also stated about the recovery of the clothes by the police party on the disclosure statement of the appellant from one hut in village Chatehar.

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27 This fact, according to the learned trial court, has also been corroborated by PW22 SI Jatinder Kumar, who had also stated that on 19.11.2015, he remained associated in the

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investigation and the appellant got recovered the blood stained clothes from a hut near to Chatehar bridge.

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28 Reference was also made to the testimony of PW-23 Hari Singh, who had stated that on 17.11.2015, he had been called by the police at Village Chatehar and when he reached on the spot, police was present alongwith the appellant. The police had already recovered the clothes and thereafter he was intimated by the police to this effect.

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29 Learned trial court then placed reliance on the cross-examination of PW-23, who deposed that he had identified the clothes i.e. pants Ex. P-21 and hood Ex. P-22, which had been recovered by the police on the spot at village Chatehar. Learned trial court has also placed reliance on the memos Ex. PW-3/A, Ex. PW-3/B, Ex. PW-3/C Ex. PW-3/D, Ex. PW-3/E and parcel Ex. P-20 having been signed by PW23, after reading and accepting the contents thereof to be true.

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30 The learned trial court further placed reliance on testimony of PW-32 Sunita, who had deposed that she knew the appellant as he was working with her at Gaggal. The appellant had come to her Jhuggi at Chatehar when her husband was also present there. The clothes, which the

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appellant had been wearing at that time, were stained with blood and on asking about blood stains, the appellant disclosed that he had a fight with someone and his nose started bleeding, due to which, his clothes were stained with blood. She further stated that the appellant left the blood stained clothes in her Jhuggi and worn clothes of her husband. The appellant stayed with them in Jhuggi for two days and thereafter, he was arrested by the police. She also identified pants Ex. P-21 and hood Ex. P-22, which were worn by the appellant at the time when he had come to her Jhuggi.

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31 In addition to the above, the learned trial court also referred to the statement of the appellant under Section 313, wherein he admitted that on the eve of "Chhoti Diwali" in the year 2015, at about 3.30 p.m., he was telephonically called by PW35 Sushil Kumar and on this PW-35 alongwith Banti had come to meet him and when examined in the Court PW35 had also identified the pants Ex. P-21 and hood Ex. P-22 of the appellant, which were worn by him when he met them on that date. It is on the aforesaid material that the learned trial court held this circumstance to be proved.

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32 However, what appears to have been ignored by the

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learned trial court while answering this circumstance is that the disclosure statement, Ex PW-3/A, that was alleged to have been made by the appellant in the presence of PW-3 Tulsi Ram and PW-23 Hari Singh to the police regarding the recovery of clothes worn by him at the time of occurrence, pursuant to which, recoveries have been made, had not at all been proved on record.

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33 Noticeably, PW-3 Tulsi Ram, is none other than real brother of the deceased and, therefore, had no reason whatsoever not to support the prosecution case, but when his statement is examined, the same is fatal to the case of prosecution. He categorically admitted in his crossexamination that no statement was made by the appellant in his presence in police custody when he states "It is correct that during investigation while the accused was in custody, he did not make any statement in my presence."

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34 Further, he demolishes the case of the prosecution qua recovery of the alleged clothes, which are stated to be taken into possession vide memo Ext. PW-3/B. As per the case of the prosecution, the clothes were got recovered from the

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Jhuggi of Parjeet Kumar (Gorkha) situated at Chatehar Pul, but as per PW3, the recovery of the clothes was effected from the house of the appellant and not from the Jhuggi of Parjeet (Gorkha) as is evident from the following:-

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"Recovery of clothes were affected from the house of the accused."

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35 It needs to be noticed that the prosecution had not laid challenge to the statement of PW-3 and no reasons or explanation has come forth from the prosecution with respect to its case having been contradicted by none other than the real brother of the deceased.

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36 The other witness of the alleged disclosure statement, Ext.PW-3/A and alleged recovery of clothes Ext. PW-3/B, PW-23 Hari Singh has been declared hostile and did not support the case of prosecution.

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37 Mere signing of the documents would not dispense

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with the proof given the fact that in support of its contention regarding recovery of the clothes, the prosecution also examined PW-32 Sunita, wife of the owner of the Jhuggi, namely, Parjeet Singh, who, in her deposition, stated that the

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appellant had come in the evening at about 3.00/4.00 P.M. and remained there for two days. The version putforth by this witness is fatal to the case of the prosecution because as per case set up by it, the incident had happened much after the time disclosed by this witness as the deceased was seen alive even after 6.00 P.M. on that date and, therefore, could not have been there in the Jhuggi of PW32 at 3.00/4.00 P.M. with blood stained clothes. 38 The statements of PW-8 Vinay Kumar, PW-24 Vijay Kumar and PW-2 Sanjay Kumar would also be relevant at this stage. PW-8 had stated that the deceased was there in his shop at about 6:30 P.M. along with Hoshiyar Singh as would be evident from the following:

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"On 10.11.2015, deceased Ramesh and Hoshiyar Singh came to my shop at about 6:30 PM.”

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39 PW-24 Vijay Kumar, in his examination in chief had deposed that the deceased had met him near the shop of PW-8 Vijay at about 6:15/6:30 P.M, relevant portion whereof reads as under:-

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"I do not remember the date. However Ramesh @tiddu met me near the shop of Vijay at 6:15-6:30 PM."

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40 Here, it would also be relevant to refer to testimony of PW-2 Sanjay Kumar, who after being declared hostile had been put to suggestion by the learned Public Prosecutor and stated as under:

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"It is incorrect that I disclose to the police that the accused had quarrelled with some persons on 1011-2015 at about 5:30 to 6:00 P.M. in the dabha of Sonu at Tikri road"

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41 Similar statement has been made by PW-35 Sushil Kumar, who was the complainant in another case being FIR

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No. 220/2015, wherein he stated that he along with the appellant was having drinks at 4:00 P.M.

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42 When all the aforesaid aspects are analyzed minutely, the case of the prosecution becomes highly doubtful because as per the case set up by the prosecution, the clothes were recovered from the Jhuggi of PW32 that too in presence

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of her husband Parjeet, but surprising enough neither PW32

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nor her husband Parjeet are witnesses or signatories to the

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recovery memo. Had this been so, we see no reason why both of them or at least one of them would not have been associated at the time of alleged recovery.

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43 What is more surprising is that there is no whisper in the statement of PW32 regarding recovery of clothes from her Jhuggi. This assumes significance as apart from not having stated anything regarding recovery of clothes, she has nowhere stated that the clothes were hidden at a specific place as is otherwise the case of the prosecution.

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44 Further, we find no explanation having been placed on record by the prosecution of associating only interested witnesses while recording memo Ext.PW-3/B, given the fact that the evidence led by the prosecution suggests presence of many persons. Serious doubt is further created in the prosecution story when owner of Jhuggi from where the alleged discovery was got effected has not been associated in investigation for unknown and unexplained reasons.

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45 Strong reliance has been placed by the learned trial court on the testimony of PW35 Sushil Kumar for concluding that the clothes Ext. P-21 and P-22 belonged to the appellant. However, the learned trial court appears to have lost

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complete sight of the fact that the statement of PW-35 to this effect was procured.

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46 Why we observe so is because PW-35 had never stated anything in his examination-in-chief about identification of clothes allegedly worn by the appellant and when later on cross-examined by the Public Prosecutor stated about the same. This Court cannot be oblivious to the fact that PW-35 is none other than the complainant in other case emanating out of FIR No.220/2015 and secondly, in absence of any identification of the clothes from PW-32 or any other person during the investigation much reliance could not have been placed on the testimony of PW-35 when he is interested witness. The prosecution had to lead corroborative evidence to connect the appellant with the incident in question.

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47 It also needs to be noticed that as per testimony of PW32, she had noticed the blood stains on the clothes of the appellant and had given the appellant clothes of her husband Parjeet. These clothes that were worn by the appellant alone could have probablized the case set up by the prosecution.

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Circumstance No.4

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48 The learned trial court after placing reliance on the testimony of Dr. Vivek Sehajpal, Assistant Director, DNA Division, SFSL Junga, coupled with some part of the statement of the appellant under Section 313 Cr.P.C. held this circumstance to be proved. It was held that PW30 has proved his report, Ext. PY who has deposed that after conducting the DNA isolation, the DNA profile obtained from the hood of the appellant in which brown stains on the front chest region and left arm were present matches completely with the DNA profile obtained from the blood samples of the deceased. Further there was no material showing that there was any tampering with the exhibits sent to FSL and there is nothing to show that the test so conducted by the expert was perverse or not keeping with the standard of scientific methodology.

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49 The learned trial court further went on to hold that the perusal of the statement of the appellant under Section 313 Cr. P.C. reveals that except denial, no explanation has been offered by the appellant as to the blood stains on his

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hood and after quoting Section 106 of Indian Evidence Act, adverse inference was drawn against the appellant.

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50 Having perused the findings and evidence on record, we are of the considered view that the DNA report that was placed on record by the prosecution was of no assistance given the fact that the recovery of the clothes was in itself under a shadow of cloud and secondly as per the DNA report Ext-PY, only the DNA profile obtained from hood of the appellant matches with the DNA profile of deceased i.e. blood samples.

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51 It is evident from the record that the blood stained clothes and the other material which was sent for FSL for the purpose of DNA was despatched after 2 ½ months and there is no explanation whatsoever furnished by the prosecution as to why the clothes and other material were retained in the Police Station for such a long time. As such possibility of tampering with the same cannot be ruled out bearing in mind that the Investigating Officer already had blood vials of the deceased in his possession.

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52 In addition to the aforesaid, other factors, which create serious dent on the story of the prosecution are that as

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per the case of the prosecution, the hair samples of seven suspects including the hair of appellant were sent for being compared with the hair found in the hand of the deceased, and it was found to be dissimilar with each other as is evident from report Ext. PW-13/C.

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53 What further casts a serious doubt regarding prosecution case is that admittedly, the appellant was not in custody in this case and rather was in custody in some other case i.e. FIR No. 220/2015 in a different police station and his custody was transferred in this case only on 17.11.2015. No explanation has been placed on record as to how and why his hair were taken and deposited in the malkhana register, Ext PW-16/A, on 16.11.2015, on which date, the custody of the appellant had not been transferred in this case and he was not even a suspect on that day. No witness has come forward to state that how hair of the appellant had been taken into possession and for what reasons that too on 16.11.2015.

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54 If this was not enough, according to the prosecution, it was the left shoe of deceased that was found near the place where he was found in an injured condition but the shoe shown and exhibited as case property during the trial

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turned out to be the right shoe, which clearly negates the hypothesis drawn by the Investigating Officer.

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55 Before parting, it needs to be noticed that the prosecution has tried to improve its case by getting recorded supplementary statement of PW-1 Sanjay Kumar on the lines that the shadow of the person, which he had noticed in the corridor of the school, resembled with that of the appellant but such general statement is otherwise of no avail to the prosecution.

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56 As observed above, there is no eye witness of the alleged occurrence and there is no enmity established by the prosecution, no weapon of offence used for the commission of the alleged offence has been mentioned or recovered and no motive has been assigned to the appellant for assaulting or murdering the deceased.

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57 Failure to prove even a single circumstance cogently can cause a snap in the chain of circumstances and once there is a snap, then the accused would be entitled to the benefit of doubt.

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58 The prosecution has not been able to establish that it was the appellant who was last seen with the deceased.

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Even if it was so, this by itself does not necessarily lead to the inference that it was the appellant who did 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. (Refer: Kanhaiya Lal

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vs. State of Rajasthan, (2014) 4 SCC 715)

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59 In Nizam vs. State of Rajasthan (2016) 1 SCC 550 it was observed by the Hon’ble Supreme Court that "only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of accused, a reasonable inference would be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act”.

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60 Before the prosecution is permitted to invoke Section 106 of Indian Evidence Act, it must first establish that

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there was any fact especially within the knowledge of appellant, which is not the fact situation obtaining in the instant case.

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61 We need to bear in mind that graver the offence stricter shall be the proof and graver the offence, wider shall

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be latitude granted to the defence. However, it appears that the learned trial court has based its conviction on conjectures and surmises. Howsoever, strong the suspicion may be, it cannot take place of proof. The purpose of a criminal trial is not to convict any accused facing trial, but to do justice.

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62 Resultantly, we have no hesitation to conclude that the case of the prosecution is highly doubtful and therefore, the convict is entitled to benefit of doubt.

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63 In view of the aforesaid discussions, impugned judgment and order of conviction and sentence passed by the learned trial court are set aside. Consequently, the convict, in the instant case, is ordered to be released immediately, if not required in any other case.

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64 The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant

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of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

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65 The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of.

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66 Send down the records.

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Digitally signed by KHEM RAJ THAKUR DN: C=IN, O=HIGH COURT OF HIMACHAL KHEM PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c14caec7 825ba4158459325bd600d273f58b, PostalCode=171001, S=Himachal Pradesh, RAJ SERIALNUMBER=6aa9db3b3e85e608387fb6f0fa0b b2ddacd2e1b82f232ca3c0adea331da33983, CN=KHEM RAJ THAKUR Reason: I am approving this document Location: THAKUR Date: 2024-07-12 13:34:26

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(Tarlok Singh Chauhan)

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Judge

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12.7.2024 (pankaj)

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(Sushil Kukreja) Judge

Aman Kumar v. State of Hp

Case brief

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Aman Kumar v. State of Hp

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