Piar Singh Rana JUDGMENT
Sanjay Karol, J.
1. Appellant-convict Ravi Kumar, hereinafter referred to as the accused, has assailed the judgment dated 30.4.2013, passed by Additional Sessions Judge, Kangra at Dharamshala, District Kangra, Himachal Pradesh, in Sessions Case No. 38-G/VII/12, titled as State v. Ravi Kumar, whereby he stands convicted of the offence punishable under the provisions of Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and pay a fine of ` 10,000/- and in default thereof to further undergo rigorous imprisonment for a period of one year.
2. It is the case of prosecution that complainant Ramesh Chand (PW-7) was living with his wife Nisha Devi (deceased) and two children in village Bari. Accused Ravi Kumar, nephew of Ramesh Chand, who had an evil eye on Nisha Devi, went to the jungle with her on 21.12.2011. On 22.12.2011, when Nisha Devi went to the jungle, commonly known as Ridian wala Jungle, he followed and murdered her. Not finding his wife at home, Ramesh Chand was informed that she had gone to the jungle for fetching fuel wood. When she did not return till late evening, villagers constituted two search parties, one of which was headed by the accused. Pretending that he was not aware of anything, accused led the search party to the place where the dead body was lying. On a telephonic information of the deceased being murdered, after preparing Rapt (Ex. PW-11/A), police party, headed by ASI Suresh Kumar (PW-16) reached the spot, where statement of Ramesh Chand, under the provisions of Section 154 of the Code of Criminal Procedure (Ex. PW-7/A), was recorded, on the basis of which FIR No. 191, dated 22.12.2011 (Ex. PW-12/A), for offence under the provisions of Section 302 of the Indian Penal Code, was registered at Police Station Dehra, District Kangra, Himachal Pradesh. On the spot, inquest report (Ex. P-13 & Ex. PW-16/M) was prepared; spot was got photographed; vide Memo (Ex. PW-1/D), police took into possession a pair of chappals (Ex. P-8), one blood stained Drat (Ex. P-2) and shawl (Ex. P-4), lying near the dead body, which were identified to be that of the deceased by Ramesh Chand. On 23.12.2011, Suresh Kumar got the spot examined from Dr. Arun Sharma (PW-17), Deputy Director, RFSL Dharamshala, who prepared his report (Ex. PW-16/P). On 25.12.2011, investigation was taken over by SHO Tilak Raj (PW-19), and on 31.12.2011 accused was arrested. On 1.1.2012, accused made a disclosure statement (Ex. PW-4/A), in the presence of Ramesh Chand (PW-4) and Tilak Raj (PW-9), to the effect that he could get his blood stained clothes and the weapon of offence recovered. In the presence of very same witnesses, from his house, accused got recovered blood stained Drat (P-15), his pant (P-16), shirt (P-17), vide recovery Memo (Ex. PW-4/B). The incriminating articles were sent for chemical analysis and reports of the Regional Forensic Science Laboratory, Dharamshala (Ex. PW-19/F and 19/G) were taken on record. Investigation further revealed that on 22.12.2011, Ranjana Kumari (PW-6), a co-villager had seen the accused coming from the jungle. He was walking hurriedly. Also, he had asked Sanjay Kumar (PW-3) and Batan Singh (PW-5) to mislead the police, by furnishing false information. 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 was charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 19 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took defence of innocence and false implication. No evidence in defence was led.
5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him as aforesaid. Hence, the present appeal by the accused.
6. We have heard Mr. Ashok Chaudhary, Mr. V.S. Chauhan, learned Additional Advocates General, and Mr. J.S. Guleria, Assistant Advocate General, on behalf of the State as also Mr. Anoop Chitkara, 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.
7. It be only observed that trial Court has not separately culled out the circumstances leading to the conviction of the accused. Reasoning adopted by the trial Court can be summarized as under:
"(a) Accused made a disclosure statement (Ex. PW-4/A) in the presence of respectable persons of the Panchayat, which further led to recovery of the incriminating articles.
(b) Accused did not lead any evidence to establish that blood stains found on his pyjama, so recovered by the police, were his.
(c) Testimony of independent prosecution witnesses fully inspired confidence.
(d) Drat (Ex. P-15), so recovered from the possession of the accused, contained blood stains."
8. In our considered view, the circumstances emanating from record are as follows:
"(1) Accused had an evil eye over the deceased, which according to the prosecution was the motive for crime.
(2) On 21.12.2011, accused had visited the jungle alongwith the deceased. Next day, he again went and murdered her.
(3) Accused was last seen coming from the direction, where the dead body was found.
(4) Accused led the search party to the place where he had kept the dead body in the jungle.
(5) Accused prompted and threatened the witnesses to mislead the police, by giving a different version.
(6) Accused made a disclosure statement, which led to the recovery of weapon of offence and other incriminating articles.
(7) Medical evidence supported the crime to have been committed with the weapon of offence so recovered from the possession of the accused.
(8) Scientific evidence corroborating the substantive evidence."
9. Before we deal with the testimonies of the prosecution witnesses, we may only record certain undisputed facts, which emerge on record. Accused is the nephew of complainant Ramesh Chand (PW-7); he was member of the search party, so constituted by the villagers for searching the deceased; in relation to the crime in question, accused as also other villagers, including Batan Singh (PW-5) and Ramesh Chand (PW-4) were interrogated by the police; none suspected complicity of the accused in the crime till the investigation was taken over by SI Tilak Raj (PW-19) on 25.12.2011 and even thereafter till 31.12.2011, when the accused was arrested.
10. What were the grounds on which the accused was arrested on 31.12.2011 are not emanating from the record. We find the arrest Memo not to have been produced in the Court. This fact acquires significance, in view of the statement (Ex. PW-7/A), wherein the complainant himself got recorded that his wife had been murdered by "some unknown person". We find that one blood stained sickle (Drat) (Ex. P-2), which was lying next to the dead body, stood recovered by the police on 22.12.2011 itself, however, no effort was made by the prosecution to have the finger prints on the sickle analyzed. To whom did this sickle belong to and whether it was used by the accused or someone else, for committing murder, has not been established on record. The genesis of the prosecution story, to some extent, is rendered to be doubtful.
Circumstance No. 1: Accused had an evil eye over the deceased, which according to the prosecution was the motive for crime.
11. Ramesh Chand (PW-7), in his examination-in-chief, states that one year prior to the incident, accused, who is his nephew, had concealed himself in the first floor of his house, on the pretext of taking a pump. Again about three months prior to the incident, when the deceased was taking bath, accused peeped in. The witness states that accused, who had an evil eye on his wife, would frequently visit his house.
12. We do not find such version of the witness to be inspiring in confidence, for the reason that in the cross-examination part of his testimony, he admits to have informed the police about the murder having been committed by some unknown person. He never raised any suspicion against the accused. His version in Court is an afterthought and mere exaggeration as we find it not to gave been recorded in his previous statement (Ex. PW-7/A), with which he was confronted. Crucially, witness admits that police had interrogated witnesses Sanjay Kumar (PW-3), Batan Singh (PW-5), Ranjana Kumari (PW-6) as also his children, yet no finger of suspicion was ever raised against the accused or any previous conduct brought to the notice of the police. Also, the witness admits not to have reported the same to anyone.
13. That Ramesh Chand (PW-7) had no suspicion against any person, much less the accused, stands uncontrovertedly admitted by Onkar Singh (PW-1), Jagdish Chand (PW-2), Sanjay Kumar (PW-3), Batan Singh (PW-5) as also police officials HHC Sushil Kumar (PW-15) and SI Tilak Raj (PW-19).
14. It is not the case of prosecution that the deceased resisted any overt acts of the accused, which prompted him to commit the crime. No motive, in particular, has been ascribed to the accused. Also, medical evidence reveals that deceased was not subjected to sexual assault and it is also not the case of prosecution that after committing rape, accused murdered the deceased.
15. Also, the theory of motive, of whatever it may be, is just an afterthought. In the instant case, as has been observed, Ramesh Chand (PW-7) maintained stoic silence with regard to the evil intent of the accused, for more than ten days. Hence, this circumstance cannot be said to have been proved.
Circumstance No. 2: On 21.12.2011, accused had visited the jungle alongwith the deceased. Next day he again went and murdered her.
16. For establishing such fact, prosecution relies upon the testimonies of Komal (PW-8), daughter of the deceased, as also Ramesh Chand (PW-7).
17. According to Ramesh Chand, he was informed by his son Saurav, about the deceased and the accused having gone together to the forest on 21.12.2011. Not only this part of his testimony is hearsay, but we also find it not to have been recorded in any one of his previous statements, with which he was confronted. That apart, Saurav has not been examined in Court by the prosecution. Crucially, witness admits that his children were interrogated by the police, yet such fact was not disclosed. Not much credit can be lent to his version.
18. When we peruse the testimony of Komal, we find her to depose that on 21.12.2011, her mother and the accused had gone to the forest for fetching fuel wood. At that time, both she and her brother Saurav were also present. Well, that is all the witness states with regard to the visit to the forest. We find this part of her testimony to be a mere exaggeration and improvement. Even otherwise, what does it lead to remains unexplained. This witness did not find, in any manner, conduct of the accused or for that matter her mother to be suspicious in nature. And it is not the case of the prosecution that the accused and the deceased were having any intimacy or that they were found in a compromising position.
19. In any event, this circumstance does not lead to the inference that on 22.12.2011 also, deceased had gone to the jungle with the accused, more so in the teeth of admission made by Ramesh Chand that the deceased used to go to the jungle for fetching fuel wood with other ladies and gents of the village. There was nothing abnormal for the accused to have gone to the jungle with the deceased on 21.12.2011. As such, this circumstance does not lead the prosecution anywhere.
Circumstance No. 4: Accused led the search party to the place where he had kept the dead body in the jungle.
20. It has come in the testimony of Ramesh Chand (PW-7) that on 22.12.2011, when he returned home at about 4.20 p.m., he found his wife not to be home. His children informed that the deceased may have gone to the jungle for fetching fuel wood. He made enquiries from the villagers and was informed by Tilak Raj (PW-9) that he had seen the deceased go to the jungle, carrying Drat, shawl and rope, at 9 a.m. Later in the evening, different groups were formed by the villagers for searching the deceased. Accused led the group, in which he, Sanjay Kumar, Amin Chand and Saurav were there. In the jungle, accused called him informing that he had found the deceased. He immediately went there and identified the dead body to be that of his wife.
21. We find that Amin Chand and Saurav have not been examined in the Court and the version of Ramesh Chand stands corroborated by Sanjay Kumar, who further goes to state that just before the place where the dead body was lying, accused handed over the torch and thus by going ahead, he was the first one to have noticed the dead body. Immediately, he called Ramesh Chand (PW-7) to the place where the dead body was lying. Accused had asked him to depose truth to the police, or else all would be involved in the crime. In fact, accused had threatened the witnesses to do so. We notice that at this stage the witness was declared hostile and cross-examined, but nothing incriminating could be elicited from his testimony.
22. Onkar Singh (PW-1) and Jagdish Chand (PW-2), who went to the jungle searching the deceased, have only corroborated the version of Ramesh Chand (PW-7).
23. When we peruse the testimony of Batan Singh (PW-5), who was member of the search party, we find there is contradiction to the effect that it was Sanjay Kumar who had called the villagers to the place where dead body of Nisha was lying, unlike the version of Onkar Singh and Ramesh Chand, who state it was the accused who had called the villagers to that place.
24. In his statement, Ramesh Chand (PW-7) had categorically got recorded that both the accused and Sanjay Kumar had called him to the place where the dead body was lying.
25. Contradictions apart, we do not find the version of the witnesses to be implicating the accused in the crime. No finger of suspicion is pointed out towards the accused. Submission that the accused knew the place where the dead body was lying and just short of ten feet before reaching that place, he ensured that Sanjay Kumar head the search party, cannot be inferred from the testimony of the witnesses.
26. Accused admitted to be member of the search party. But then this fact alone does not prove his culpability. After all other villagers were also there. Noticeably, while the search operation was going on, none observed any unusual conduct and/or behaviour of the accused. Thus, prosecution has not been able to establish this circumstance.
Circumstance No. 5: Accused prompted and threatened the witnesses to mislead the police, by giving a different version.
27. Through the testimonies of Sanjay Kumar (PW-3) and Batan Singh (PW-5), prosecution wants the Court to believe that accused had not only threatened these witnesses but had also asked them to mislead the Investigating Officer(s).
28. We do not find such fact, emerging from the testimony of the witnesses, for we find that both the witnesses were suspect and interrogated by the police till the time accused was arrested.
29. According to Batan Singh, accused had wanted him to state before the police that both of them were together at the time when search was conducted. Well, it is not a disputed fact, as has emerged from the testimony of other witnesses that Batan Singh, was also a member of the search party. Hence, where is the question of the accused asking the witness to depose falsely.
30. As already discussed, Sanjay Kumar has not supported the prosecution. Hence, this circumstance has also not been proved by the prosecution.
Circumstance No. 3: Accused was last seen coming from the direction, where the dead body was found.
31. To prove this circumstance, prosecution refers to and relies upon the testimony of Ranjana Kumari (PW-6), who states that on 22.12.2011, she had seen the accused walking hurriedly, carrying a bundle of fuel wood. This was at about 11 a.m. Day after the postmortem was conducted, accused asked her not to disclose to the police about the clothes which he was wearing on 22.12.2011.
32. Now, the witness does not state that the accused was coming from the direction where the dead body was recovered. She also does not state that in fact he was coming from the jungle. She met him near her house, which is neither inside the jungle, near the jungle or in the direction from where dead body was recovered. Her version that on 22.12.2011, accused had asked her not to disclose about the clothes he was wearing, is a mere exaggeration and improvement, for we find it not to have been recorded in her previous statement (Ex. D-2), with which she was confronted. We are of the view that the witness is absolutely unreliable and her version unbelievable. She is an educated lady and can read and write in English language. She admits that on 22.12.2011, police had carried out investigation in the village and yet she did not disclose such fact either to the police or Ramesh Chand (PW-7). This is despite the fact that the deceased was her real aunt. That her version is not truthful is apparent from the fact that she is trying to protect her real brother Batan Singh, who himself was a suspect. Thus, this circumstance cannot be said to have been proved.
Circumstance No. 7: Medical evidence supported the crime to have been committed with the weapon of offence so recovered from the possession of accused.
33. Through the testimony of ASI Suresh Kumar (PW-16) and Onkar Singh (PW-1), it stands established that dead body of the deceased was taken into possession by the police on 22.12.2011 itself. Postmortem was conducted by Dr. Anita Mahajan (PW- 10) on 23.12.2011. According to the doctor, following injuries were found on the body of the deceased:
"(i) Spindle shaped incised wound 4 cm x 1.5 cm on right side of chin having clear margins and bone deep.
(ii) Spindle shaped incised wound 8 cm x 2 cm x 2 cm below right ear lobule and lateral part of neck extending into facial region with clear margins.
(iii) Spindle shaped incised wound with clear cut margins 8 cm x 2 cm on lateral part on neck right side extending into posterior part of neck cutting deep structures of neck exposing underlying bony cervical vertebra.
(iv) Spindle shaped incised wound with clear cut margins 3 cm x 1 cm muscles deep on upper part of neck left side.
(v) spindle shaped incised wound with clear cut margins 4.5 cm x 1 cm muscle deep over clavicular region left side.
(vi) Spindle shaped incised wound 2 cm x 1.5 cm muscle deep over left anterior axillary fold with clear cut margins. No other injury was seen on the rest of the body."
No external or internal injuries were found on private parts of the deceased. Cause of death was opined to be haemorrhagic shock due to incised wound on neck.
34. The doctor opined that injuries found on the body of the deceased could have been sustained with Drat (Ex. P-15). But for unexplainable reasons, Drat (Ex. P-2) was not shown to her. Also, doctor admits that the incised wounds could have been first caused with a sickle. Also what is crucial is that all the incised wounds were spindle in shape, which in fact is in the shape of sickle (Ex. P-2), which was lying near the dead body of the deceased. Prosecution has not ruled out the possibility of use of this sickle in the crime. Spindle shape injuries could have been inflicted even with weapon (Ex. P-2). That accused used this sickle has not been proved. On the weapon (Ex. P-2) or Ex. P-15 finger prints of the accused were not proved.
35. At the time of spot inspection by Dr. Arun Sharma (PW-17), he also noticed a blood stained D rat (Ex. P-2). Significantly, both the weapons, i.e. Ex. P2 and Ex. P-15 are almost of same size and shape. Possibility of the deceased sustaining injuries with weapon (Ex. P-2) has not been ruled out.
Circumstance No. 6: Accused made a disclosure statement, which led to the recovery of weapon of offence and other incriminating articles.
36. Through the testimonies of Ramesh Chand (PW-4), Tilak Raj (PW-9) and SI Tilak Raj (PW-19), prosecution wants the Court to believe that accused first made a disclosure statement (Ex. PW-4/A) and then led the police and got recovered Drat (Ex. P-15), so concealed by him in the second storey of his house. Also his blood stained Pyjama (Ex. P-16) and other clothes were recovered.
37. Having perused the testimonies of these witnesses, we find the version to be contradictory, rendering the factum of disclosure statement to be absolutely doubtful.
38. SI Tilak Raj (PW-19) states that on 1.1.2012, in the presence of witnesses Tilak Raj (PW-9) and Ramesh Chand (PW-4), accused made a disclosure statement (Ex. PW-4/A). Thereafter, accused led the police party to his house in village Bari, from where Drat (Ex. P-15) and clothes, kept under a box, were recovered. According to the witness, accused was interrogated for 25 minutes and the questions were put in Hindi language. The articles recovered vide Memo (Ex. PW-4/B) were wrapped in the cloth kept in the investigation kit for making parcels.
39. Ramesh Chand (PW-4) states that on 1.1.2012, he of his own went to the Police Station where the accused was being interrogated by the SHO in his room. Accused disclosed that not only could he get the spot identified, but also get the Drat and the clothes recovered from the place where he had concealed the same. Statement of accused (Ex. PW-4/A) was recorded to such effect. Witness further states that the accused led the police to his house and got recovered Drat and clothes so kept in a box, in the inner room of his house. In cross-examination, witness admits that prior to his reaching the Police Station, accused was being interrogated by the SHO. He states that except for the disclosure statement (Ex. PW-4/A), no question was put by the SHO to the accused and "it took only 2-3 minutes for recording the above statement" and thereafter "we went to the house of the accused in a police vehicle at about 3-4 P.M."
40. The witness was confronted with his previous statement (Ex. D-1), wherein the factum of recovery of the pant at the instance of the accused was not recorded. Also, according to this witness, the incriminating articles were kept in the box (made of tin), which was neither taken into possession nor sealed by the police. Crucially, witness admits that the house is in joint possession of the brother and parents of the accused. Specifically, this witness does not record presence of Tilak Raj (PW-9) at the time of recording of disclosure statement.
41. But when we peruse the testimony of Tilak Raj (PW-9), we find him to have deposed that both he and Ramesh Chand (PW-4) went to the Police Station, where, in their presence, accused made such disclosure statement. But the witness clarifies that he reached the Police Station ten minutes after arrival of Ramesh Chand.
42. Not only his version is self contradictory, but also witnesses have contradicted themselves.
43. The witnesses have contradicted not only themselves but also each other.
44. Initially, Tilak Raj (PW-9) states that both he and Ramesh Chand had gone to the Police Station together. He used the expression "I alongwith Ramesh Chand". In the later part of his testimony, he states that "I cannot tell as to how many questions were put by the I.O. to the accused. I cannot tell whether the I.O. was writing the questions and thereafter the answers made by the accused. Volunteered that whatever the accused had told it was written by the I.O.".
45. Further, according to the Investigating Officer, accused was interrogated for 25 minutes, whereas according to Ramesh Chand, it took 2-3 minutes for recording the statement and except for the disclosure statement so recorded, no other "investigation" (here he means interrogation) was conducted in his presence. He does not even record presence of Tilak Raj (PW-9).
46. Further, according to SI Tilak Raj (PW-19), the accused was interrogated in Hindi, which version stands contradicted by Tilak Raj (PW-9), according to whom it was so done in Pahari language but then the document prepared is in Hindi language. What is this Pahari dialect? has not been explained. What questions were put? no evidence is forthcoming in this regard. Tilak Raj (PW-9) is not even aware as to how many questions were put to the accused and who scribed the same. Significantly, Ramesh Chand (PW-4) states that before he reached the Police Station, accused already stood interrogated by the SHO. All this renders the factum of accused making the disclosure statement, in the presence of the witnesses, to be doubtful.
47. In similar circumstances, where the accused had made disclosure statement in Chambyali language, which was recorded in Hindi, a Division Bench of this Court in Nidhia Ram v. State of H.P., MANU/HP/0006/2007 : 2007(1) Shim.L.C. 201, expressed doubts about the genuineness and admissibility.
48. Further, SI Tilak Raj (PW-19) states that the recovered articles were sealed with the cloth kept in the investigation kit, whereas according to Tilak Raj (PW-9), cloth was purchased from the market by the police and was got stitched with a machine. Who purchased the cloth? Who paid the money? Where did it come from? Where was it stitched? remain unexplained.
49. Further, according to Tilak Raj (PW-9), accused had concealed the incriminating articles in an iron box. Now, where is this box? Why was it not seized and sealed? remain unexplained. This fact becomes important, for the reason that house from where recovery was effected, is jointly possessed by the accused, his brother and father, who also reside there. Only accused had access to the place where the alleged incriminating articles were concealed, has not been established by the prosecution.
50. It be only observed, as has come in the testimony of most of the prosecution witnesses, that police had suspected Batan Singh and Ramesh Chand (PW-4) in the crime. Investigation was conducted by the police in the village and on certain occasions, police had also visited the house of the accused. Possibility of the articles being planted cannot be ruled out. Also had the accused been guilty, he had sufficient time of ten days (between 22.12.2011 and 31.12.2011) for disposing of the same.
51. If a blood stained Drat could be left on the spot, which was so recovered by the police the very same day, then why would a person conceal the second Drat.
52. The contradiction, in the backdrop of the aforesaid discussion, cannot be said to be minor. To our mind, there is doubt about the authenticity of the alleged disclosure statement made, if at all, by the accused. Hence, this circumstance also cannot be said to have been proved.
Circumstance No. 8: Scientific evidence corroborating the substantive evidence.
53. The question, which arises, is as to how does the police link the accused to the weapon of offence or the articles so recovered on the behest of the accused.
54. When we peruse the scientific evidence, i.e. Report (Ex. PW-19/F), we find that Drat (Ex. P-15) so recovered from the house of the accused did have traces of human blood but then there is no conclusive report with regard to the blood group. Deceased had Blood Group 'B'. Drat (Ex. P-2) so recovered from the spot did have traces of flow of blood, as is so proved by the Scientific Officer, which matched with the blood group of the deceased. Now, there is no link evidence to establish use of this weapon by the accused in the crime. Also Drat (Ex. P-15) did not reveal finger prints of the accused.
55. It is contended by the prosecution that Pyjama (P-16), belonging to the accused, so recovered vide Memo (Ex. PW-4/B), contained blood, which matched with the blood group of the deceased. Significantly, prosecution has not ruled out that the blood group found on the Pyjama was not that of the accused. Trial Court erroneously assumed that in the absence of any injuries on the body of the accused, blood found on the Pyjama could have been only that of the deceased and none else. May be blood group of the accused is similar to that of the deceased. Assuming hypothetically that the Pyjama belonged to the accused, possibility of the same being stained with the blood of the deceased, who was his aunt, at the time of search operations, cannot be ruled out. As such, this circumstance also cannot be said to have been proved.
56. We find the factum of disclosure statement as also recovery of the Pyjama to be doubtful. The accused was not made to wear the Pyjama and except for the disclosure statement, there is no other evidence linking the accused to the same. In fact, best person, who could have testified in that regard, was Ranjana Kumari (PW-6), according to whom on 22.12.2011, she had seen the accused and the day after the postmortem was conducted, accused had asked her not to disclose to the police the clothes which he was wearing at that time. But then, this was not so done.
57. The Hon'ble Supreme Court of India in Prabhoo v. The State of Uttar Pradesh, MANU/SC/0123/1962 : AIR 1963 SC 1113, has observed as under:
"9. The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statement alleged have been made by the appellant in connection with that recovery. According to the recovery memo the two witness who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Debi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murdered been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Debi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Ss. 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of S. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of S. 27. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Kotayya v. Emperor, MANU/PR/0049/1946 : 74 Ind App 65: (AIR 1947 PC 67), the Privy Council considered the true interpretation of S. 27 and said:
"It is fallacious to treat the 'fact discovered' within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A'., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p. 77 of Ind App): (at p.70 of AIR).
We are, therefore, of the opinion that the courts' below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house is blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his."
58. In a case where the incriminating articles were recovered from the house of the accused after 23 days of commission of crime of murder, the Hon'ble Supreme Court of India, in Chandran v. State of Madras, MANU/SC/0068/1978 : (1978) 4 SCC 90, expressed its doubt with regard to the prosecution case.
59. In Narsinbhai Haribhai Prajapati v. Chhatrasinh and others, MANU/SC/0112/1977 : AIR 1977 SC 1753, the Hon'ble Supreme Court of India, held as under:
"2. We are prepared to assume in favour of the prosecution that the evidence in regard to the incident of the 23rd near the pond and the evidence in regard to the incident which took place near the Ota of the Pir shows that the respondents had some motive for committing the crime. We may also accept that blood-stained shirt and dhoti were seized from the person of respondent No. 1 and dharias were seized from the houses of respondents 1 and 3. But those circumstances are in our opinion wholly insufficient for sustaining the charge of murder of which the respondents are accused."
60. Hon'ble the Supreme Court of India, in Vijay Thakur v. State of Himachal Pradesh, MANU/SC/0840/2014 : (2014) 14 SCC 609, held as under:
"13. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
14. In Mani v. State of Tamil Nadu, 2008 1 SCR 228, this Court made following pertinent observation on this very aspect:
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...." "
61. In Musheer Khan @ Badshah Khan v. State of M.P., MANU/SC/0065/2010 : (2010) 2 SCC 748, the apex Court, held as under:
"65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code.
66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed.
67. Section 27 starts with the word 'provided'. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay v. Kathi Kalu Oghad, MANU/SC/0134/1961 : 1961 AIR(SC) 1808].
68. The Privy Counsel in Pulukori Kottaya v. King Emperor, 1947 PC 67 held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates.
69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused."
62. In Babboo v. State of M.P., MANU/SC/0058/1978 : (1979) 4 SCC 74, the Hon'ble Supreme Court of India, held as under:
"13. The learned Additional Sessions Judge has also referred to the recovery of Katarnas on the information given by accused Nos. 1, 3 and 5. These recoveries hardly have any probative value in the facts and circumstances of this case. If there is no substantive evidence worth the name the recovery of Katarnas would hardly advance the prosecution case against the accused. Katarnas appear to have been stained with human blood........."
63. SI Tilak Raj (PW-19) wants the Court to believe that when Ramesh Chand made statement proceedings were videographed by ASI Ashok Kumar (PW-18). However, on this issue, when we peruse testimony of these witnesses, we find them to be absolutely uninspiring in confidence.
64. Ashok Kumar states that on 31.12.2011, he video recorded the statement of Ramesh Chand by using the official video camera. Which camera? he does not state. Also, who issued the camera, record is silent. He is not the official photographer. CD (Ex. PW-18/A) was prepared and not tampered with. Crucially, the witness admits that except for the police officials no independent witness was present at that time. He is not a trained videographer. He is also not engaged and appointed to undertake such job. He admits not to have claimed reimbursement towards the cost of the CD. Why would he not do so, has not been explained. That apart, and what totally knocks down the prosecution case is his admission that "I had not sealed the C.D. after the videography". Ramesh Chand does not state that police had videographed any such statement made by him. As such possibility of the same being doctored cannot be ruled out. This is apart from the fact that document is inadmissible in evidence as per the provisions of the Indian Evidence Act.
65. Mr. V.S. Chauhan, learned Additional Advocate General, appearing on behalf of the State, refers to and relies upon a decision rendered by Hon'ble the Supreme Court of India, in Criminal Appeal No. 569 of 2004, titled as Prem Singh v. State of Haryana, decided on 29.5.2015.
66. Having carefully perused the ratio laid down therein, we are of the considered view that the decision rendered is in the given facts, wherein the Court found the prosecution to have proved the accused to have an evil eye on the deceased; disclosure statement made by the accused, leading to the recovery of incriminating article to have been proved on record. The circumstances so relied upon by the prosecution formed a complete chain, unequivocally pointing out an accusing finger only towards the convict and none other. Absence of narration of motive or cause of crime in the statements so recorded by the police, in the given facts and circumstances was found to be not fatal, particularly when otherwise the testimony of the witness was found to be clear, cogent and convincing.
67. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused intentionally and knowingly caused death of Nisha Devi (deceased).
68. The trial Court erred in presuming the version of the witnesses to be as a gospel truth and then erroneously convicted the accused.
69. From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has 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.
70. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused.
71. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 30.4.2013, passed by Additional Sessions Judge, Kangra at Dharamshala, District Kangra, Himachal Pradesh, in Sessions Case No. 38-G/VII/12, titled as State v. Ravi Kumar, is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him accordingly. Release warrants be immediately prepared.
Appeal stands disposed of, so also pending application(s), if any.
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