The State Of Himachal Pradesh vs Raj Kumar on 8 January, 2018

                                          REPORTABLE
             IN THE SUPREME COURT OF INDIA
            CRIMINAL APPELLATE JURISDICTION

             CRIMINAL APPEAL NO. 31 OF 2018
         (Arising out of SLP (Crl.) No. 1204 of 2015)

STATE OF HIMACHAL PRADESH                     …Appellant


                           Versus

RAJ KUMAR                                    ...Respondent



                       JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal preferred by the State challenges the

judgment of the High Court of Himachal Pradesh in Criminal

Appeal No.559 of 2008 acquitting the respondent under

Section 302 IPC by setting aside his conviction and the

sentence of life imprisonment imposed upon him by the trial

court.

3. Husband of deceased Meena Devi passed away about

eleven years ago prior to the incident. Meena Devi was

residing with her son Jeewan Lal (PW-1), daughter Rekha

Page No. 1 of 13
Devi (PW-2) and accused Raj Kumar (brother-in-law) in the

joint family house. On 23.08.2007 at 08.30 p.m., while

Meena Devi was taking meal along with her family,

respondent-accused came there in drunken condition and

started abusing Meena Devi and her children PW-1 and PW-2

without any reason and threatened to kill them. Barf

Devi-grandmother of PW-1 who was present in the house

took Jeewan Lal (PW-1) to adjoining sleeping room and

bolted the room from outside. She asked Rekha Devi (PW-2)

daughter of deceased to go to the house of her maternal

uncle Anant Ram (PW-3). While being inside the room, PW-1

heard the cries of his mother Meena Devi and from the

window saw the respondent-accused taking her mother

towards the house of another accused Om Prakash. After

few hours, accused opened the door and told him that his

mother had run away from the house and that he should tell

the same to his maternal uncle Anant Ram (PW-3). Under

such threat from respondent-accused and another accused

Ramesh Kumar, PW-1 told his maternal uncle (PW-3) that his

mother had run away from the house. On 24.08.2007 at

Page No. 2 of 13
about 02.00 a.m., Anant Ram (PW-3) came to the house of

accused. Thereafter, PW-1 and PW-3 went to Dharampur

Police Station and informed the police about missing of

Meena Devi. On 25.08.2007, they again went to the police

station Dharampur and at about 11.00-11.30 a.m; at the

time Anant Ram (PW-3) received a phone call from Nek Ram

informing that the dead body of deceased Meena Devi was

found hanging from a tree at Ghat Bahu forest. Thereafter,

PW-1 and PW-3 along with police party went to the spot and

found that the dead body of Meena Devi was hanging from

the branch of a pine tree with a plastic rope, tied around her

neck. Statement of PW-1 was recorded, based on which, case

in FIR No.250 of 2007 was registered under Section 302 IPC

and Section 201 read with Section 34 IPC.

4. Initial investigation was conducted by Sub-Inspector of

Police Sat Prakash (PW-20) and further investigation was

conducted by Inspector of Police LR Thakur (PW-22). PW-22

prepared spot map, inquest and conducted further

investigation. Dr. Vivek Banyal (PW-24) conducted autopsy

and opined that “….death was because of haemorrhagic
Page No. 3 of 13
shock due to rupture of spleen and anti-mortem injuries

suggesting gagging. Hanging was post-mortem”. Accused

Raj Kumar was taken to custody on 25.08.2007 and he was

interrogated. Confession statement of accused was recorded

on 27.08.2007 which led to the recovery of a lady shirt from

the room of the house of accused Ramesh Kumar which was

under construction. Upon completion of investigation,

chargesheet was fled against accused Raj Kumar, Ramesh

Kumar, Om Prakash and Barf Devi under Section 302 IPC

and Section 201 read with Section 34 IPC.

5. To bring home the guilt of the accused, in the Sessions

Court, prosecution has examined as many as twenty four

witnesses and marked number of exhibits and material

objects. In the questioning under Section 313 Cr.P.C., the

accused denied all the incriminating circumstances and

evidence and pleaded that he is innocent. The accused has

not offered any explanation on the death of deceased Meena

Devi.

Page No. 4 of 13

6. Based upon the evidence of Anant Ram (PW-3) and

Bhindra Devi (PW-15), the trial court held that Meena Devi

suffered harassment at the hands of her brother-in-law

(respondent-accused). The trial court held that Jeewan Lal

(PW-1) son of the deceased had spoken about the overt act

of the accused in beating the deceased and that the accused

taking away Meena Devi from the house. The trial court held

that no reasonable explanation was forth coming from the

accused for the death of the deceased Meena Devi who was

living jointly with the respondent-accused. On those

fndings, the trial court convicted the respondent-accused

under Section 302 IPC and Section 201 IPC read with Section

34 IPC and sentenced him to undergo imprisonment for life.

Other accused Ramesh Kumar and Om Prakash were

acquitted. Accused Barf Devi remained absconding.

7. In the appeal preferred by the accused, the High Court

observed that Jeewan Lal (PW-1) son of the deceased, while

deposing as witness before the court in narrating the whole

incident, had made improvements and hence, PW-1 is not a

reliable witness. The High Court further held that there were
Page No. 5 of 13
bald assertions regarding dispute, but no specifc motive was

attributed to the accused for committing murder of the

deceased Meena Devi. Observing that the case of

prosecution suffers from serious infrmities, the High Court

allowed the criminal appeal fled by the respondent-accused

thereby setting aside the conviction and the sentence of life

imprisonment imposed upon him. Being aggrieved, the

State is before us.

8. We have heard the learned counsel for the parties and

perused the impugned judgment and materials on record.

9. Prosecution case is based on circumstantial evidence.

It is well settled that in a case based on circumstantial

evidence, the circumstances from which an inference of guilt

is sought to be drawn must be cogently and frmly

established and that those circumstances must be

conclusive in nature unerringly pointing towards the guilt of

the accused. Moreover all the circumstances taken

cumulatively should form a complete chain and there should

be no gap left in the chain of evidence. Further the proved

Page No. 6 of 13
circumstances must be consistent only with the hypothesis

of the guilt of the accused and totally inconsistent with his

innocence.

10. In a case, based on circumstantial evidence, the

inference of guilt can be drawn only when all the

incriminating facts and circumstances are found to be

incompatible with the innocence of the accused. In Trimukh

Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it

was held as under:-

“12. ………..The normal principle in a case based on
circumstantial evidence is that the circumstances from
which an inference of guilt is sought to be drawn must be
cogently and frmly established; that those circumstances
should be of a defnite tendency unerringly pointing
towards the guilt of the accused; that 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 they should be incapable of explanation on
any hypothesis other than that of the guilt of the accused
and inconsistent with their innocence.”

The same principle was reiterated in State of Rajasthan v.

Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of

Rajasthan (2002) 1 SCC 731, State of Maharashtra v.

Suresh (2000) 1 SCC 471 and State of Tamil Nadu v.

Rajendran (1999) 8 SCC 679.

Page No. 7 of 13

11. After death of her husband, Meena Devi was living with

her children viz. Jeewan Lal (PW-1) and Rekha Devi (PW-2)

along with the accused Raj Kumar in the joint family. In their

evidence, PW-1 and PW-2 clearly stated that on 23.08.2007,

respondent came in drunkard condition and threatened to

kill them. Jeewan Lal (PW-1) who is the son of deceased

Meena Devi clearly stated that he had heard the cries of his

mother and also seen accused taking his mother towards the

house of accused Om Parkash. On 25.08.2007, body of

Meena Devi was found hanging from a pine tree in the

nearby forest. PW-24-Dr. Vivek Banyal who conducted the

autopsy has clearly said that “anti-mortem injuries were

caused due to gagging and hanging process of dead body

was post-mortem”.

12. In his evidence, Jeewan Lal (PW-1) stated that he was

threatened by the accused Om Parkash to make telephonic

call to his maternal uncle Anant Ram (PW-3) that Meena Devi

had run away from the house and under such threat Jeewan

Lal (PW-1) informed Anant Ram (PW-3) accordingly. After

Anant Ram (PW-3) came to the village at 02.00 a.m. on
Page No. 8 of 13
24.08.2007, PW-1 and PW-3 went to P.P. Dharampur and

informed them about missing of Meena Devi. Meena Devi

was living with her brother-in-law/accused along with her

children. If Meena Devi was so missing, the natural conduct

of the accused was to inform the police and also Anant Ram

(PW-3). But that was not done. In view of Section 106 of the

Evidence Act, burden is cast upon the accused, being the

inmate of the house to give a cogent explanation as to how

Meena Devi died. No reasonable explanation is forthcoming

from the accused as to why he had neither lodged the

complaint nor informed the police about the missing of

Meena Devi. The respondent-accused being inmate of the

house cannot get away by simply keeping quiet and offering

no explanation. This is a strong militating circumstance

against the respondent indicating that he might be

responsible for the commission of the offence.

13. The motive attributed to the accused is that he had

frequently quarrelled with the deceased and also assaulted

her. A dispute is also suggested pertaining to the land of one

Swami who wanted to give his property solely to the
Page No. 9 of 13
deceased Meena Devi which was not acceptable to the

accused. Yet another motive attributed to the accused was

his greed for the fxed deposit of Rs.1,20,000/- which had

become due payable to the deceased on 13.08.2007. PW-15

Bhindra Devi, sister-in-law of the deceased in her evidence

had clearly stated that as and when Meena Devi visited her

house, Meena Devi used to tell her about the suffering

meted out to her by the accused Raj Kumar. Further, Bhindra

Devi (PW-15) had clearly spoken about the motive

attributed to the accused. From the evidence of PW-15, it is

brought out that the accused Raj Kumar is a chronic

drunkard. On previous occasion, respondent-accused had

beaten Meena Devi and he had entered into compromise

with Meena Devi by assuring her that he would not beat her

in future. Evidence of PW-15 as to the motive attributed to

the accused was not properly appreciated by the High Court.

14. Jeewan Lal (PW-1) has clearly spoken as to the attack

on Meena Devi by the accused on the night of 23.08.2007

and the subsequent threat to PW-1 by the accused and one

Om Prakash. The trial court which had the opportunity of
Page No. 10 of 13
seeing and observing demeanour of the witnesses held that

Jeewan Lal (PW-1) is a trustworthy witness. While so, the

High Court was not right in doubting the version of Jeewan

Lal (PW-1) on the ground that PW-1 made improvements in

his version. In his statement (Ex.P/A) dated 25.08.2007,

Jeewan Lal (PW-1) did not disclose the participation qua

accused Nos. 2 and 3 namely Ramesh Kumar and Om

Parkash in the commission of the offence. Evidence of

Jeewan Lal (PW-1) cannot be doubted simply because names

of Ramesh Kumar and Om Prakash were not mentioned in his

statement recorded on 25.08.2007 immediately after

bringing down the hanging body of Meena Devi from the

tree. The circumstances in which PW-1 was placed at that

time, is to be kept in view. PW-1 was only aged nineteen

years. On the night of 23.08.2007, he had heard the cries of

his mother at the time when she was beaten. PW-1 and

PW-3 had been searching for Meena Devi for more than

twenty four hours that is from 24.08.2007 to 25.08.2007,

only to fnd her dead. PW-1 was already threatened by

accused Om Parkash to inform Anant Ram (PW-3) that Meena

Page No. 11 of 13
Devi had run away. On 25.08.2007, when PW-1′s

statement was recorded, he must have been in trauma and

fear psychosis. In such circumstances, omission to mention

the names of Om Parkash and Ramesh Kumar in his

statement (Ex.P/A) does not render PW-1′s evidence

untrustworthy. Upon proper appreciation of the evidence,

the trial court observed that evidence of PW-1 inspires

confdence of the court. While so, in our view, the High

Court ought not to have doubted the version of PW-1 and his

credibility.

15. While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read

as a whole appears to be truthful in the given circumstances

of the case. Once that impression is formed, it is necessary

for the court to scrutinize the evidence more particularly

keeping in view the drawbacks and infrmities pointed out in

the evidence and evaluate them to fnd out whether it is

against the general tenor of the prosecution case. Jeewan

Lal (PW-1) is the son of the deceased Meena Devi residing

with her and the accused in the same house, and a natural
Page No. 12 of 13
witness to speak about the occurrence. Evidence of PW-1 is

cogent and natural and is consistent with the prosecution

case. The High Court was not right in doubting the evidence

of PW-1 on the ground of alleged improvements made by

Jeewan Lal (PW-1) and rejecting his evidence on the premise

that there were certain improvements.

16. As pointed out by the Sessions Judge, deceased Meena

Devi was last seen alive in the company of accused Raj

Kumar and the accused did not satisfactorily explain the

missing of deceased Meena Devi and the same is a strong

militating circumstance against the accused. Meena Devi

who was residing in the same house with the accused and

was last seen alive with the accused, it is for him to explain

how the deceased died. The accused has no reasonable

explanation as to how the body of Meena Devi was found

hanging from the tree. As held in Kashi Ram case, it is for

the accused to explain as to what happened to the

deceased. If the accused does not throw light on the fact

which is within his knowledge, his failure to offer any

Page No. 13 of 13
explanation would be a strong militating circumstance

against him.

17. As pointed out earlier, in his questioning under Section

313 Cr.P.C., the accused simply denied the evidence of

incriminating circumstance put to him and pleaded that he is

innocent. A feeble attempt was made by the defence to

suggest that the deceased consumed poison and committed

suicide. Viscera of deceased Meena Devi was sent to FSL

Tungand. As per FSL report, no poison was detected in the

viscera of the deceased. In our considered view, the trial

court rightly rejected the plea suggested by the defence.

18. As pointed out earlier, in a catena of judgments, this

Court held that when conviction is based on circumstantial

evidence, there should not be any gap in the chain of

circumstances; the accused is entitled to the beneft of

doubt. In the present case, by cogent and convincing

evidence, prosecution has established the circumstances:- (i)

Motive (evidence of PW-15); (ii) accused beating the

deceased and taking her away (Evidence of PW-1); (iii) Death

Page No. 14 of 13
of Meena Devi is homicidal (evidence of PW-24); (iv) Conduct

of accused in not reporting to the police about missing of the

deceased Meena Devi; and (v) Absence of explanation from

the accused as to the death of the deceased. The

circumstances relied upon by the prosecution are proved by

cogent and reliable evidence. The circumstances

cumulatively taken form a complete chain pointing out that

the murder was committed by the accused and none-else.

19. In the appeal, the High Court has not properly

appreciated the evidence and intrinsic worth of testimony of

prosecution witnesses and the formidable circumstances

established by the prosecution against the accused. The

High Court entertained fanciful doubts and rejected the

credible evidence of Jeewan Lal (PW-1) on slender grounds.

Due to mis-appreciation of evidence, the High Court set

aside the conviction and caused a miscarriage of justice.

Reasonings of the High Court for acquitting the accused are

unsustainable and the impugned judgment cannot be

sustained.

Page No. 15 of 13

20. In the result, the impugned judgment is set aside and

the appeal is allowed. The conviction of the respondent

under Section 302 IPC and the sentence of life imprisonment

imposed on him by the trial court are affirmed. The

respondent shall be taken into custody to serve the

remaining sentence.

…….………………………..J.

(R. BANUMATHI)

…….………………………..J.

(UDAY UMESH LALIT)
New Delhi;

January 8, 2018

Page No. 16 of 13

Article source: Supreme Court

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