State of Himachal Pradesh Vs Santosh Kumar and Others

Sanjay Karol, J@mdashAssailing the judgment dated 22.02.2008, passed by the Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No. 52-P/VII/06, titled as The State of Himachal Pradesh Versus Santosh Kumar & others, whereby all the accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

2. It is the case of prosecution that on 27.07.2006, Rajinder left his house in the company of Dile Ram (PW.3). He was carrying cash of Rs. 20,000/-. Since he did not return home, his wife Salochana Devi (PW.2) made enquiries from Dile Ram, who informed that both of them had spent the night in the house of one Sunil at Village Kuhan, where they were given beatings by Santosh (accused No. 1), Chunni Lal (witness not examined) and other persons. On 31.07.2006, Salochana Devi lodged a missing report. On 11.08.2006, she lodged FIR No. 102/06 (Ex.PW.2/A) against the accused under the provisions of Sections 365, 34 of the Indian Penal code, at Police Station, Lambagaon, District Kangra, H.P. Despite efforts made by the police, Rajinder could not be traced. However on 19.08.2006 his dead body was recovered. Police suspected Dile Ram (PW.3) and Sunita Kumari (PW.4), who after becoming approvers, disclosed complicity of accused Santosh Kumar, Bihari and Kamal Dev in the crime. Accused were arrested. On 23.08.2006 Santosh Kumar made a disclosure statement (Ex.PW.5/A), which led to recovery of weapon of offence i.e. Danda (Ex.P-2) vide seizure memo (Ex.PW.5/B). Independent witnesses Vinod Kumar (PW.5) and Krishan Kant (PW.14) were associated. Reports of FSL (Ex.PW.17/D, Ex.PW.17ED & Ex.PW.18/A) were obtained. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

3. Accused were charged for having committed offences punishable under the provisions of Section 302 and 201 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

4. In order to establish its case, in all, prosecution examined as many as eighteen witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of false implication. No evidence in defence was led.

5. Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

6. We have heard Mr. V.S. Chauhan, learned Additional Advocate General assisted by M/s. Kush Sharma, learned Deputy Advocate General and J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Naresh Verma, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.

8. In Prandas Vs. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - ''Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

9. It is not a case of circumstantial evidence. Prosecution contends that the incident was witnessed by Dile Ram (PW.3) and Sunita Kumari (PW.4) and the motive of crime being robbery of Rs. 20,000/-, from the custody of Rajinder (deceased). By way of additional circumstance, prosecution also refers to and relies upon: (i) the factum of recovery of dead body; (ii) deceased being last seen in the company of the accused; and (iii) disclosure statement of accused Santosh Kumar.

10. To establish its case, prosecution primarily refers to and relies upon the testimonies of Yash Pal Gautam (PW.1), Salochna Devi (PW.2), Dile Ram (PW.3) Sunita Kumari (PW.4), Vinod Kumar (PW.5), Mohinder (PW.7), Narain Dass (PW.8), Kuldeep alias Deep (PW.11) and Krishan Kant (PW.14).

11. That dead body, identified to be that of Rajinder, was recovered by the police on 19.08.2006, stands established by Yash Pal Gautam (PW.1), Sunita Kumari (PW.4), Mohinder (PW.7), Narain Dass (PW.8), Kuldeep alias Deep (PW.11) and Tilak Raj (PW.17).

12. Dr. Suresh Sankhyan (PW.16-A), who conducted the postmortem and issued report (Ex.PW.16/B) found following injuries on the body of the deceased:--

"1. An ante mortem fracture of cricoids cartilage was present on the right side.

2. Multiple ante mortem fracture of thyroid cartilage were present in the greater cornu, body of thyroid cartilage right and left both sides as if it had been crushed between bone and hard object.

3. A peri-mortem fracture of second cervical vertiberee of neck was present anteriorly with fracture segment of the vertebrae absent and red brown staining of the edges of fractured vertebrae.

4. Post mortem ovulsim of third and fourth ribs from costochondral junction consistent with advanced decomposition.

5. A non observable synthetic suture material was obtained from stomach and duodenum of deceased which was suggestive of surgery in the adjoining ears of stomach and duodenum."

13. As per version of the doctor, deceased died due to asphyxia as a result of ante mortem compression of neck structure. Death, according to the doctor, would have taken place 3-6 weeks prior to the date of postmortem, which was conducted on 20.08.2006. By that time, dead body had decomposed. Dead body stands identified by Salochana Devi (PW.2) and Kuldeep alias Deep (PW.11).

14. It is a matter of record, as has emerged from the testimony of Salochana Devi (PW.2), that deceased did not leave his house in the company of the accused. Only Dile Ram (PW.3) was with him. Salochana Devi states that on 31.07.2006, she was informed by Dile Ram that both he and the deceased had spent the night of 27.07.2006 in the house of Sunil, where accused came and gave beatings. Now significantly, missing report dated 31.07.2006 was lodged with the police and no finger of suspicion was pointed towards the present accused. It is also a matter of record, as has emerged through the testimony of police officials, that with the recovery of dead body on 19.08.2006, Salochana Devi lodged a report pointing finger of suspicion against Sunita Kumari (PW.4), Santosh Kumar (accused No. 1), Chunni Lal (witness given up) and Dile Ram (PW.3). Crucially doubt was expressed against Kamal Dev (accused No. 2) and Bihari Lal (accused No. 3).

15. From the testimony of Tilak Raj (PW.17), it has emerged that on 20.08.2006, accused and the witnesses were associated during investigation. In fact, Dile Ram (PW.3) and Sunita Kumari (PW.4) were arrested and before the Magistrate, got their statements recorded revealing the truth. Complicity of the accused was so disclosed by them for the first time. It has come in the testimony of Salochana Devi (PW.2) that Dile Ram (PW.3) had also associated himself in searching the deceased, yet till the time of his arrest, he did not disclose anything against the accused. Hence, as we shall see hereinafter there is a major contradiction on this point.

16. Now in the instant case, order passed under Section 306 of the Code of Criminal Procedure and the statements recorded before the Magistrate, granting pardon, have neither been placed nor proven on record. Also not supplied to the accused. Testimony of Salochana Devi (PW.2) revealing complicity of Dile Ram is only hear say in nature. Witness further admits not to have known any of the accused persons. Crucially she was not informed by Dile Ram (PW.3) that accused had taken away Rs. 20,000/- so possessed by the deceased.

17. We find Kuldeep alias Deep (PW.11) son of the deceased has also not disclosed complicity of the accused. Testimony of Onkar Chand (PW.10) brother of Salochana Devi (PW.2) that quarrel took place between Dile Ram and Santosh Kumar is also hear say in nature.

18. Prosecution wants the Court to believe that with the arrest of accused, Santosh Kumar made a disclosure statement (Ex.PW.5/A), which led to recovery of danda (Ex.P-2) vide memo (Ex.PW.5/B). The disclosure statement was made in the presence of Vinod Kumar (PW.5) and Krishan Kant (PW.14), which is to the effect that after the incident, weapon of offence i.e. Kassi (Ex.P-4) was concealed in Gulana Khud and also dead body was concealed in a pit, dug behind the bushes which he could get recovered. Now, dead body stood already recovered, hence it cannot be said to be a discovery of fact pursuant to disclosure statement.

19. With regard to weapon of offence, it be only observed that independent witness Krishan Kant (PW.14) has not supported the prosecution. He was cross-examined and nothing fruitful could be elicited from his testimony. We find that even testimony of Vinod Kumar does not help the prosecution at all. He is Pradhan of the Gram Panchayat and states that before he could reach, police had already recovered the weapon of offence. He is not aware as to who took out the danda and Kassi and which of the accused got it identified. Recovery memo (Ex.PW.5/B) and disclosure statement (Ex.PW.5/A) do not bear signature of other accused Kamal Dev and Bihari Lal.

20. We further find weapon of offence could not be linked even by scientific evidence. Report of the FSL (Ex.PW.18/A) is evidently clear on this aspect. Hence even this circumstance cannot be said to have been proven on record.

21. This leaves us with the testimonies of Dile Ram (PW.3) and Sunita Kumari (PW.4).

22. Law with regard to evidentiary value and appreciation of testimony of an accomplice to whom pardon stands granted is now well settled.

23. Mr. Naresh Verma, learned counsel, invites our attention to the decision rendered by Hon''ble the Supreme Court of India in Mrinal Das and Others Vs. The State of Tripura, AIR 2011 SC 3753 : (2011) 4 JCC 2571 : (2012) 1 RCR(Criminal) 247 : (2011) 10 SCALE 55 : (2011) 5 UJ 3364 : (2011) AIRSCW 5566 , wherein it is held that though conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars. The evidence of an approver does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion. If the suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice''s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone. The Court further held that:--

"In Dagdu and Others Vs. State of Maharashtra, AIR 1977 SC 1579 : (1977) CriLJ 1206 : (1977) 3 SCC 68 : (1977) 3 SCR 636 , the scope of Section 133 and Illustration (b) to Section 114 of the Evidence Act, 1872 and nature of rule of corroboration of accomplice evidence was explained by a three-Judge Bench of this Court in the following manner: (SCC p. 76, paras 24-25)

"24. In Bhuboni Sahu v. R., (1948-49) 76 IA 147, the Privy Council after noticing Section 133 and Illustration (b) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase ''corroborated in material particulars'' in Illustration (b). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused.

25. This Court has in a series of cases expressed the same view as regards accomplice evidence. (See The State of Bihar Vs. Basawan Singh, AIR 1958 SC 500 : (1958) CriLJ 976 : (1959) 1 SCR 195 ; Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, AIR 1964 SC 1184 : (1964) CriLJ 344 : (1964) 6 SCR 623 ; Haroon Haji Abdulla Vs. State of Maharashtra, AIR 1968 SC 832 : (1968) 2 SCR 641 and Ravinder Singh Vs. State of Haryana, AIR 1975 SC 856 : (1975) 3 SCC 742 : (1975) 3 SCR 453 .) In Haricharan Kurmi (supra) Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars"."

24. Not only do we find testimonies of Dile Ram (PW.3) and Sunita Kumari (PW.4) to be uncorroborated, but also absolutely uninspiring in confidence and not beyond suspicion. After all they were suspects and stood arrested. They had several opportunities of disclosing complicity of the accused. Yet maintained silence.

25. Dile Ram states that on 27.07.2006, he alongwith the deceased spent the night in the house of Sunil (not examined) in Village Kuhan. Sunil was not home, but his wife Sunita Kumari (PW.4) allowed them to stay there. At that time, Chunni Lal was also there. While they were sleeping, at about 11.00 PM, accused came and started giving beatings to the deceased. Even this witness was given beating as a result of which he sustained injuries on his arms and legs. Thereafter, Chunni Lal kept him in the room and went out. Later, he made enquiries from Chunni Lal, who disclosed that the deceased had gone towards the fields. At about 3.00-4.00 AM, when he got up to drink water, he saw the accused returning from the nullah. Out of fear, he came in and bolted the door. In the morning, at about 6.00 AM, he asked Chunni Lal to take him to the road, but was offered tea. To him Sunita Kumari disclosed names of the accused persons. Later on Chunni Lal took him to the road and on enquiry was told that one Ward Panch had died. Thereafter, both he and Chunni Lal went to the house of Ward Panch Biasan Devi and informed her about the occurrence of the incident, who in turn informed Pradhan Godhan Devi. The witness admits to have been arrested by the police and made statement before JMIC, Palampur.

26. As already observed, statement recorded before the Magistrate has not been placed or proved on record. Any which way, we do not find version of the witness to be true, for he admits that prior to the incident, accused were not known to him. He had only seen their faces. It is not the case of prosecution that test identification parade was got conducted by the police. He admits to have learnt about the names of the assailants only in the morning and disclosed the same to the police. Obviously, he is telling lies. How else, police could have reach ed to the accused, for it is no body''s case that none else was known by the names of the accused. His version of having sustained injuries is an exaggeration and not true. Also if he had already disclosed the incident to Biasan Devi or was also made known to Godhan Devi, then why is it that no action was taken against the accused till 23.08.2006. Why did they not report the matter to the police. One cannot ignore the fact that the incident took place on 27.07.2006, whereas, missing report was lodged on 31.07.2006 and prior thereto, this witness had associated himself in searching the deceased. Noticeably dead body was recovered on 19.08.2006 and even then he did not disclose the incident to anyone.

27. Version of Sunita Kumari (PW.4) is also uninspiring in confidence and in any event does not reveal complicity of the accused. She does state that on 27.07.2006, accused came to her house and gave beatings to Dile Ram who was rescued by Chunni Lal. But, she categorically does not state that accused had given beatings to Rajinder. She admits to have been arrested by the police on 20.08.2006 and yet immediately did not disclose the identity of the assailants. She admits that police visited the village on number of occasions (8-9 times) and sought information about the incident, yet she did not disclose it to anyone. Why so? remains unexplained. Her version that she kept quiet on account of alleged threats extended by the accused is absolutely uninspiring in confidence. After all she is a married lady and not only her husband, but entire village was there to protect her. It is also not her case that accused constantly kept surveillance over her and monitored her activity. She is not even aware of the person whose dead body was recovered by the police. Death of a villager had taken place, yet she kept quiet. And what about her husband. Why was he not examined? Was he himself a suspect?

28. Strangely, we find Chuuni Lal, who also was a suspect and as is so admitted by the witnesses arrested by the police, was cited as a witness and yet not examined in Court. Record reveals that the Public Prosecutor had given him up on the ground that he was won over. This is without any substance.

29. In Gurmej Singh and others Versus State of Punjab, 1991(1) Supp (2) SCC 75, the apex Court held that dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon.

30. In State of Rajasthan Vs. Om Prakash, AIR 2002 SC 2235 : (2002) CriLJ 2951 : (2002) 2 Crimes 386 : (2002) 1 JT 304 Supp : (2002) 4 SCALE 400 : (2002) 5 SCC 745 : (2002) 3 SCR 753 : (2002) 1 UJ 759 : (2002) AIRSCW 2346 : (2002) 3 Supreme 655 , the Apex Court held as under:--

"14. In State of H.P. v Gian Chand [2000(1) SCC 71] Justice Lahoti speaking for the Bench observed that the Court has first to assess the trustworthy intention of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could have been examined but were not examined."

31. Chunni Lal could have been cross-examined by the prosecution had he sided with the accused. He remained in police custody from 11.08.2006 till 14.08.2006. Why proceedings were dropped against him, is not clear from the record.

32. Prosecution case cannot be said to have been proved, either by way of direct or circumstantial evidence.

33. To our mind, prosecution has not been able to establish, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that all the accused in furtherance of their common intention committed murder of Rajinder by causing compression his neck with a danda and Kassi and thereafter with aim to screen the evidence threw the dead body into the nullah.

34. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice.

35. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.

36. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 SC 566 : (2010) CLT 222 : (2010) CriLJ 861 : (2009) 14 JT 6 : (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2009) 15 SCR 616 : (2009) 10 UJ 4781 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.