Asha Devi vs State Of Himachal Pradesh
2023 Latest Caselaw 11204 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. A. No. 558 of 2016 Reserved on: 01.08.2023

.

                            Date of decision: 08.08.2023





    Asha Devi                                           ...Appellant





                            Versus

    State of Himachal Pradesh                           ...Respondent
    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.

Whether approved for reporting? Yes.

For the Appellant : Mr. Surinder Thakur, Advocate-cum-

Legal Aid Counsel.

For the Respondent: Mr. Anup Rattan, A.G. with Mr. Ramakant Sharma, Ms. Sharmila

Patial, Addl. A.Gs., Mr. J. S. Guleria, Dy. A.G and Mr. Rajat Chauhan, Law Officer.

Tarlok Singh Chauhan, Judge.

The appellant has been convicted under Sections

302 and 201 IPC and aggrieved thereby has filed the instant

appeal.

2. The case of the prosecution in brief is that on

01.07.2012 at about 4:40 P.M., some unknown person

informed Police Post Saproon that a dead body was lying in a

vehicle near the LIC office. To verify the veracity of such

information, ASI Dharam Sain Negi (PW-28) and S.I. Nishant

Kumar (PW-34) alongwith other police officials went to the

spot. There Smt. Vandana wife of the deceased Sushil Kumar,

who was working as a teacher in Pine Grove School, Kasauli,

got recorded her statement under Section 154 Cr.PC. Ext.

.

PW7/A. She stated that she was married in the year 1989 with

the deceased Sushil Kumar. They have two daughters Kavya

and Nabhya who were studying in Pine Grove School. She too

was residing in the residential quarter of Pine Grove School.

Her Husband was working as A.G.M. in B.S.N.L., Solan and he

used to come at about 9:00 a.m. from Kasauli in his vehicle

bearing No. HP-14B-1718 to join his duty and come back in the

evening at about 8:00/9:00 p.m.

3. On 30.06.2012, at about 12:00 p.m., during day

time, the complainant's husband had gone to Solan in his

vehicle and had not returned till 9:30 p.m., upon which she

called her husband from her mobile No. 94180-08800 on her

husband mobile No. 94184-08800, and her husband informed

that he was sitting with his friend and would come back

shortly. however, when he did not return by 11:00 p.m., she

again enquired from her husband, he again replied in the

same manner that he would come back. However, again when

her husband did not return by 3:10 a.m. on 01.07.2012, she

again called him up, then he replied that he had proceeded

from Solan and would reach in half an hours time. Thereafter,

his mobile phone was switched off.

4. The complainant remained waiting but her

husband did not turn up even on the next day i.e. 01.07.2012

till lunch time. It is then that she alongwith her daughter

.

Nabhya went in search of her husband and when they reached

the B.S.N.L. office, Solan at about 4:30 p.m., then they saw a

vehicle of her husband parked near the road. When she

peeped into the vehicle, she saw her husband was lying dead

in the back seat and his intestines were coming out from the

stomach. There were many wounds over his body and there

were huge blood stains thereupon. On raising hue and cry,

many people assembled there, out of whom, someone

informed the police and then the police came to the spot. She

stated that her husband had been killed knowingly and

intentionally. Her statement Ext. PW7/A/rukka was sent

through HC Parveen Kumar (PW-17) to the Police Station and

on the basis of this Rukka FIR Ext. PW25/A was registered in

the police Station Sadar, Solan. The Rukka was endorsed in

the Police Station vide endorsement under red circle in

Ext.PW7/A.

5. Initially, the case was investigated by ASI Dharam

Sain, thereafter by SI Nishant Kumar and Inspector Chaman

Lal. In the investigation of ASI Dharam Sain, he got prepared

the spot map of the vehicle where it was parked vide Ext.

PW1/A from Krishan Dutt Sharma, J.E. Municipal

Committee, Solan (PW-1) and the same was taken into

possession vide memo Ext. PW1/B in the presence of Naresh

Kumar and HC Hem Raj. Site plan was forwarded by the

.

Executive Officer of the M.C., Solan vide his letter Ext. PW1/C.

ASI Dharam Sain had noticed that the dead body of Sushil

Kumar was lying in the back seat of Scorpio Car bearing No

HP-14B-1718 in half naked condition having several wounds

on the stomach, chest, arm and private parts. The vehicle was

unlocked. It was noticed that the button of the shirt of the

deceased were opened and his underwear and trouser were

also put off till his knee. On the foot mat, window panes, roof,

seat of the vehicle there were blood stains. The clothes of the

deceased were badly soaked in the blood. Photographs Ext.

PW20/A-1 to Ext. PW20/A-19 except photographs Ext. PW20/A-

11, Ext. PW20/A-14 and Ext. PW20/A-19 were the

photographs that were taken at the spot. He also filled form

No. 25.35(1)(a)(b) Ext. PW28/B and Ext. PW28/C and sent the

dead body vide docket Ext. PW12/A to the M.S. District

Hospital, Solan for postmortem.

6. A Board comprising Dr. Lalit Gupta, Dr. Sandeep

Jain and Dr. Vinod Bhardwaj, was constituted and conducted

the postmortem of the deceased Ext. PW12/B and the viscera

was also preserved. In the opinion of the doctors who

conducted the autopsy of the dead body, the deceased had

died due to shock as a result of multiple injuries over the body

including injuries to lungs, heart, private parts by sharp edged

weapon and all the wounds seems to be antemortem. Viscera

.

alongwith the sample of the urine, blood, clothing, pubic hair,

urethral wash preserved and handed over to the police for

chemical examination.

7. After the receipt of the FSL report from Junga, final

opinion from the team of the doctors was obtained on the

postmortem report vide Ext. PW12/D vide which it was opined

that as per the report of the chemical examiner ethyl alcohol

was detected in the contents of parcel P/7 and traces of the

same were also detected in the contents of parcel P/3, P/6 and

P/8. The quantity of the ethyl alcohol in the contents of the

parcel P/4 and P/5 was as under:-

                P/4 (blood):       324.61 mg%




                P/5 (Urine):       324.87%

8. No poison was detected in the contents of these

parcels. The final opinion remained the same. The dead body

of the deceased was handed over to his brother vide memo

Ext. PW5/A in the presence of the witnesses Kuldeep Mehle

and Virender Singh. Dead body of the deceased Sushil Kumar

was searched upon which pocket two currency notes

amounting to Rs. 100/- each were recovered and sealed in a

parcel with seal impression 'X'. The same was taken into

possession vide memo Ext.PW8/B in the presence of Ram

Singh and Aman Sethi. Sample of the seal as also withdrawn

on a piece of cloth Ext. PW8/A and after use of the seal, it was

.

handed over to the witness Aman Sethi.

9. The vehicle of the deceased was got inspected

through Forensic Expert from FSL, Junga and Finger Print

Bureau, Bharari. On 02.07.2012, Dr. Vivek Sehajpal preserved

four vials, water bottle swab, spit swab from the front door,

right glass and left glass swabs of the vehicle bearing No. HP-

14B-1718. He has also prepared 7 vials, blood from roof, rear

seat left side, boot window, space floor, left rear door, right

rear door, floor under rear seat, spit from front left door

(outside). He also preserved hair, pieces of rexin of the seat

and sealed these articles in two parcels with seal having

impression 'I' and took the same into possession vide memo

Ext. PW2/B in the presence of HC Sohan Lal and ASI Bihari Lal

and on the day Inspector Rahul Sharma, In-charge Finger Print

Bureau, Bharari also lifted the chance print from the vehicle

sealed in an envelope with seal having impression 'T' and

handed over the same to the police vide memo Ext. PW2/C in

the presence of Sohan Lal.

10. On the same day a pint of liquor Make Solan No. 1,

two unbreakable glasses, a mineral water bottle (brand name

Kinley), two goggles (Raybans), one hair band, a ladies

umbrella, two scrap books, a wallet containing currency notes

of Rs. 455/-, driving licence of the deceased, PAN card,

membership card, three I cards, Voter I card, registration card

.

Fortis, PAN card of Vandana, ATM of PNB, visiting card,

receipts, one ATM PNB unused, one leather belt, one RC and

foot mat were sealed in a parcel with seal having impression

'R' and the same were taken into possession vide memo Ext.

PW1/E in the presence of HC Sohan Lal and ASI Bihari Lal.

Finger prints Ext.PW4/A-1 to Ext. PW4/A-6 were taken from the

vehicle and certificate of the Inspector Rahul Sharma that he

had handed over the six chance prints that had been lifted to

SI Nishant Kumar vide memo Ext. PW4/C and the report Ext.

Ext.P4/B was handed over to the I.O. The Vehicle bearing No.

HP-14B-1718, in which the body of Sushil Kumar was stated to

be lying was taken into possession vide

memo Ext.PW8/C in the presence of witnesses Ramesh Singh

and Aman Sethi.

11. On 02.07.2012, footage of the hotel VASUZ

FLAVOUR Resort, Galog, converted in the form of CDs Ext. P-

31 and Ext. P-32 were taken and sealed in a parcel with seal

impression 'A' vide memo Ext. PW9/A in the presence of

witnesses Ajit Kumar and C. Pawan Kumar and the same were

handed over to Navin Kumar, Manager of the Resort. It had

come in the investigation that deceased Sushil Kumar with his

friend Sanjeev Sharma, owner of PIAGGIO Three Wheeler

Agency, Deonghat had gone in his vehicle to the VASUZ

FLAVOUR RESORT on 30.06.2012 in the evening. The Resort

.

had CCTV cameras inside and outside the premises. The CCTV

footage between 30.06.2012 after 6:00 p.m. till 01.07.2012

6:00 a.m. had been seen and in this footage Sushil Kumar

could be seen entering the Resort with his friend and

thereafter consumed liquor. At about 1:53 a.m. Sushil Kumar is

seen to be parking his vehicle in the Resort parking and from

this vehicle Sushil Kumar and Asha Devi (Appellant) can be

seen coming out. These two persons were identified by Ajit

Kumar, JTO, BSNL, Naveen Kumar, Manager of the VASUZ

Resort and C. Pawan Kumar. CDs of the CCTV footage of the

Resort are Ext.P-31 and Ext. P-32.

12. The call details of Mobile No. 94184-08800 of

Sushil Kumar were obtained, which revealed that on

30.06.2012 there were constant calls from the Mobile of the

deceased on Mobile Nos. 94184-62940 and 94180-27937. Call

details of these numbers and village address was obtained

and it was found that Mobile No. 94184-62940 was in the

name of the appellant Asha Devi, whereas Mobile No. 94180-

27937 was though found to be in the name of Sanjeev

Sharma, but the same was being used by Asha Devi.

13. It is on the basis of the call details and the CCTV

footage that the I.O. raised suspicion that the appellant could

be involved in this case. When the police reached at the

.

residential quarter of the appellant at place Aanji on

01.07.2012, she was not found there and stated to have gone

to her village Karoli.

14. The appellant was arrested on 03.07.2012 and in

the investigation conducted it was transpired that the

appellant was engaged in the BSNL on contract basis by the

deceased in the year 2008 and the contract was terminated in

the year, 2012. Thereafter, the deceased Sushil Kumar had

got her re-employed in PIAGGIO Agency, Deonghat belonging

to his friend Sanjeev Sharma. It was further revealed that the

appellant was involved in a physical relation with the

deceased.

15. It is the further case of the prosecution that during

the course of interrogation of the appellant, she got recorded

her disclosure statement Ext. PW11/A in the presence of

Krishan Lal and Nand Lal wherein she stated that in the

morning of 01.07.2012 she had taken the mobile phone of the

deceased from his vehicle and opened its cover, battery, SIM

and had thrown the same and she could get recovered these

articles. On the basis of her statement, she got recovered

body of the mobile Nokia and its battery near Ganpati Bottle

Store, Rabon, which were sealed in a parcel with seal

impression 'H' and taken into possession vide memo Ext.

PW11/B in the presence of the witnesses. But the SIM card and

.

the back portion of the body of the mobile could not be

recovered.

16. On 05.07.2012, the appellant got recorded her

disclosure statement Ext. 11/D in the presence of Krishan Lal

and Nand Lal and stated that she put her shirt, salwar,

duppatta into a carry bag, which she was wearing in the

intervening night of 30.06.2012/01.07.2012 and got burnt

these in a forest near Shalaghat and could demarcate the

place where she burnt these articles. On the basis of this

statement, she led the police party in the forest area near

Kararaghat, where the ashes of the burnt clothes, a hook of

bra and a part of the green colour cloth half burnt recovered

and sealed into a parcel with seal impression 'X', which was

taken into possession vide memo Ext. PW3/A. Controlled

samples were also taken.

17. On the same day i.e. 05.07.2012, the appellant

got recorded her disclosure statement Ext. PW11/F before the

police where she stated that she could make the recovery of

slipper that she had been wearing on 30.06.2012 that had

been concealed in her residential quarter. Her statement was

recorded in the presence of Mukesh Kumar and Krishan Lal

and thereafter she led the police and got recovered a pair of

slipper V-shape which was sealed in a parcel with seal 'E' and

was taken into possession vide memo Ext. PW11/J in the

.

presence of witnesses Mukesh Kumar and Krishan Lal.

18. On 07.07.2012, the appellant identified the spot

and memo of the demarcation was also prepared. Parcel

containing residue of the burnt clothes, unburnt clothes, a

hook of the bra, controlled samples, parcel containing slipper,

parcel containing mobile of deceased Sushil Kumar were sent

to FSL, Junga. It had come in the investigation that at the time

of incident the Mobile of Asha Devi was with her. The

messages were transmitted to her Mobile No. 94183-62536

deciphered. Mobile phone of Asha Devi was also sent to FSL,

Junga, for forensic opinion.

19. The report of the Forensic expert received in the

police station. As per forensic report:

i. Identical DNA profile was obtained from Exhibit-Elc (swab from right glass). Exhibit-E2a (blood from

roof). Exhibit-E2b (blood from boot window). Exhibit- E2c (blood from boot space floor), Exhibit E2d (blood from left rear door), Exhibit-E2e (blood from right rear door), Exhibit-E2f (blood from under rear seat), Exhibit-2d (rexin), Exhibit-8 (nail clipping, Sushil Kumar) and this profile matches completely with the DNA profile obtained from Exhibit-9 (blood sample, Sushil Kumar).

ii) Exhibit Ela (swab from water bottle) yielded mixed DNA profile from which two DNA profiles could be interpreted,one DNA profile match with the DNA profile obtained from Exhibit-9 (blood sample, Sushil

.

Kumar) and other profile matches with the DNA

profile obtained from blood sample of Asha Devi, received as Exhibit-5, vide letter No. 4075/5A dated

09-07-2012 (SFSL report No. 1012C/SFSL/DNA(80)/12 dated 31.08.2012). iii) The DNA profile obtained from Exhibit-E2g (spit from lift front door) pertains to male and does not match with the DNA profile obtained

from Exhibit-9 (blood sample, Sushil Kumar) and with the DNA profile obtained from blood sample of Asha Devi, received as Exhibit-5 vide letter No. 4075/5A

dated 09-07-2012 (SFSL Report No. 1012/SFSL/DNA

(80)/12 dated 31-08-2012). iv) The partial DNA profile obtained from Exhibit-Eld (swab from left glass) matches with the DNA profile obtained from Exhibit-9 (blood sample, Sushil Kumar).

v) Exhibit -2a (hair from near seat), Exhibit -2b (hair from left side of rear seat). Exhibit-2e (hair from

below the left front seat). Exhibit-9 (urethral wash,

Sushil Kumar) Yielded highly degraded DNA from which no DNA profiles were obtained.)

20. The viscera of the deceased Sushil Kumar was also

sent to FSL, Junga for analysis and its report was also received

with the following opinion:

"the contents of all parcels have been analyzed physically and chemically. Ethyl alcohol was detected in the contents of parcel P/7 and traces of the same were detected in the contents of parcel P/1, P/2, P/4 and P/5 no alcohol could be detected in the contents of parcels

P/3, P/6 and P/8. The quantity of ethyl alcohol in contents of parcels P/4 and P/5 is as under, P/4 (blood) = 324.61mg%, P/5 (urine) 324.87mg%. No other poison could be detected in the contents of these

.

parcels.

21. The report of the Finger Print Bureau, Bharari

received with the following opinion:

"(i) the chance prints on the backing pads indexed as 1

to 4 and 6 are either sufficiently faint, blurred, smudged or superimposed having no required data. Hence these all are unfit for comparison. (ii) the remaining chance prints pasted on backing pad marked

as 5 is also very partial. requisite decipherable ridge

However requisite characteristics detail in some portion is available.

After thorough and careful analysis/study this comparable chance print on the backing pad marked as 5 has found identical with the sample thumb print

(RTI) on abovesaid sample slips dated 6-7-2012 of Asha Devi. There are many points of similarities in the

corresponding portions of these identical chance print and sample thumb print to their relative position, at

many similar points are impossible to locate in the prints of different thumbs/fingers. Out of them 08similar points in respect of chance print marked as "5" and sample thumb print marked as "RT" have been shown with red projected lines, enclosed as Annexure- A. Life size photographs of chance prints 1 to 6 are enclosed also.

Hence, it is opined beyond reasonable doubts that these both prints i.e. chance print on backing pad

marked as "5" and sample thumb print (RTI) are the prints of one and same thumb of same person.

22. The report of the mobile phone of Asha Devi, her

.

nail clipping, sample of the blood, report of the mobile phone

of the deceased Sushil Kumar, half burnt piece of cloth of Asha

Devi, Ashes, hook of the bra, slipper of Asha Devi received

from FSL, Junga and the analyst has opined as under:

i) A mixed DNA profile was obtained from Exhibit-1

(mobile, Asha Devi) from which one DNA profile could be interpreted and this profile matches completely with the DNA profile obtained from blood sample of

deceased Sushil Kumar (received as Exhibit-9, vide

letter No. 3925/5A dated 03.07.2012 and reported vide SFSL report number 970- A/SFSL/DNA (76)/12&972- C/SFSL/DNA- (77)/12 dated 31-08-2012.

ii) The DNA profile obtained from Exhibit-3 (nail clipping of hand of Asha Devi), Exhibit-4 (nail clipping of feet, Asha Devi) matches completely with the DNA profile

obtained from Exhibit-5 (blood sample, Asha Devi).

Iii) Exhibit 9 (mobile, Sushil Kumar), Exhibit-11 (burnt cloths, ash and soil), Exhibit-12 (steel hooks) and

Exhibit-15 (chappals, Asha Devi) yielded highly degraded DNA which showed no amplification with AmpF/STR identifier plus PCT Amplification Kit; hence no DNA profiles could be generated from these exhibits.

23. I.O. has prepared the spot map vide Ext. PW2/D,

spot map Ext. PW34/A of the place near Railway track where

mobile phone and battery of the mobile phone of the deceased

were recovered, spot map of the place near Kararaghat where

the accused burnt her clothes was prepared vide Ext. PW34/B,

and spot map of the quarter of the accused at place Aanji was

.

prepared vide Ext. PW34/C. The report of the FSL, Junga Ext.

PW12/C, Ext. PW30/A, Ext. PW30/B, Ext. PBB, Ext.PCC, Ext. PR,

Ext. PS and Ext. PT were received.

24. On the basis of the investigation, the I.O.

concluded that the appellant had been employed by the

deceased in the BSNL on contract basis in the year, 2008 as a

data feed operator and her contract has been rescinded in the

year, 2011. Thereafter, with the assistance of deceased she

was employed in PIAGGIO Agency, Deonghat belonging to the

friend of the deceased, namely, Sanjeev Kumar. During this

period, the appellant had physical relation with the deceased.

The deceased used to keep a knife behind his seat in his

vehicle and this fact was only in the knowledge of Asha Devi.

25. The appellant was under mental agony due to the

illicit relation with the deceased. In the intervening night of

30.06.2012/01.07.2012, deceased Sushil Kumar had been

roaming in his vehicle No. HP-14B-1718 with the appellant and

had been under the influence of liquor. He parked his vehicle

near the office and sat in the back seat as he wanted to have

sexual intercourse with the appellant but due to the

menstruation period, she refused and then the deceased

wanted to have unnatural sex with the appellant. To resist the

act of the deceased, the appellant took up the knife from the

back seat of the vehicle and gave many blows on the private

.

parts, stomach, chest and arms of the deceased resulting his

death.

26. After killing the deceased, the appellant took the

mobile phone of the deceased and the knife and it was thrown

in a vehicle of un-known number and also thrown the mobile,

SIM card, memory card and battery of the mobile phone of the

deceased near the railway track. She replaced her blood

stained clothes in her residential quarter.

27. Thereafter, on 01.07.2012, the appellant had gone

to her sister's house and on 02.07.2012 she had gone to her

village Karoli. She put the blood stained clothes, such as

trouser, shirt, bra and duppatta in a carry bag and burnt it

near Kararaghat in the forest. The knife which was used to kill

the deceased could not be recovered, nor it could be

investigated in which vehicle the appellant had thrown the

knife.

28. The appellant was mentally harassed by the

deceased and this was further revealed through her SMSs

transmitted to her brother-in-law Suresh Kumar. Finally, I.O.

prepared the challan under Sections 302 and 201 IPC. The

appellant was charge-sheeted accordingly and the prosecution

examined as many as 35 witnesses and after completion of

the prosecution evidence, the statement of the appellant

under Section 313 Cr.P.C. was recorded, wherein her defence

.

was that of denial simplicitor and that she had been falsely

implicated. However, no evidence in defence was led.

29. The learned Court below after recording evidence

and evaluating the same, sentenced the appellant to undergo

imprisonment for life and to pay a fine of Rs. 20,000/- for the

offence under Section 302 IPC. In default of payment of fine, she

was further ordered to undergo rigorous imprisonment for six

months. She was also sentenced under Section 201 IPC to

suffer simple imprisonment for three years and to pay a fine in

the sum of Rs. 10,000/-. In case of default of payment of fine,

she was further to undergo simple imprisonment for six months.

30. Learned counsel for the appellant Shri Surinder

Thakur, learned Advocate, would vehemently argue that the

entire case of the prosecution is based on circumstantial

evidence and the chain of such corollary collaborative

evidence is not complete and hence the judgment of

conviction is erroneous and liable to be set aside.

31. On the other hand, Shri J. S. Guleria, learned

Deputy Advocate General for the respondent-State would

contend that learned Trial court had discussed the evidence at

length and only thereafter recorded findings of conviction.

32. It would be noticed that in the instant case there is

no eye witness, therefore, it is a case of circumstantial

evidence. As per the settled legal position, in order to sustain

.

conviction the circumstances taken cumulatively should form a

chain, so as to complete that there is no escape from the

conclusion that within all human probability, the crime was

committed by the accused only and none else. The

circumstantial evidence must be complete and incapable of

explanation of any other hypothesis, then 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 her

innocence as was held by a Bench of three Hon'ble Judges of

the Hon'ble Supreme Court in Rahul vs. State (NCT of

Delhi) 2023 (1) SCC 83.

33. The circumstances against the appellant as

alleged by the prosecution are :-

i. Last seen theory based upon CCTV footage

ii. Hair and finger prints from vehicle

iii. Blood of the deceased found in the mobile of

the appellant

iv. Mobile of the deceased got recovered by the

appellant

v. Burnt clothes and chappal got recovered by the

appellant.

vi. Call details of the mobile of the appellant.

Vii. Messages sent by the appellant.

vii. DNA of the accused and DNA of deceased match with the vial taken from water bottle by forensic team

.

viii. Weapon of offence thrown by the appellant.

ix. Motive

i. Last seen theory based upon CCTV footage

34. According to the prosecution, the deceased was last

seen in the company of the appellant as is evident from the

statement of PW 9 Ajit Kumar, PW 10 C. Pawan Kumar, PW 15

Naveen and PW 29 S.I. Ajay Kalia. However, then it would be

noticed that the depositions of all these witnesses are based

upon the CD that was prepared by PW 15 Naveen and handed

over to PW 28 ASI Dharam Sain, and there is no certificate as

required under Section 65-B(4) of the Indian Evidence Act (for

short 'Evidence Act').

35. The prosecution has examined and then relied

upon the testimonies of PW-9 Ajit Kumar, PW-10 C. Pawan

Kumar, PW-15 Naveen and PW-29 S.I. Ajay Kalia to establish

that the deceased was last seen in the company of the

appellant. However, it would be noticed that the testimony of

all these witnesses is based upon the alleged CCTV footage,

which is required to be kept out of consideration as being

inadmissible.

36. No doubt, the prosecution has examined the

Manager of the VASUZ Flavour Resort where the deceased is

alleged to have been last seen with the appellant but then this

.

witness in his statement has categorically stated that on

30.06.2012, this witness was not there till evening of

30.06.2012 nor he stated that even thereafter he visited the

hotel. He rather states that one of the waiter of the hotel had

told that the deceased had come to the hotel at 2:00 p.m. but

the prosecution has not bothered to examine the said waiter.

As per version of this witness, he had downloaded the CCTV

footage in a pen drive and thereafter prepared CDs with the

help of computer and, therefore, his statement would be hit by

the provisions of Section 65 (b) of the Act and consequently

inadmissible in evidence.

37. Even PW 29 (S.I. Ajay Kalia) has deposed only on

the basis of the CCTV footage and therefore, even his

statement regarding the deceased having been last seen in

the company of the appellant has to be discarded.

38. It shall be apt to reproduce Section 65B of the

Evidence Act in its entirety, which reads as under:-

65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall

be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or

.

production of the original, as evidence of any contents

of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--

(a) the computer output containing the information was

produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities

regularly carried on over that period by the person

having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was

regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the

computer was operating properly or, if not, then in

respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record

or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in

clause (a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

.

(b) by different computers operating in succession over

that period; or

(c) by different combinations of computers operating in

succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of

computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and

references in this section to a computer shall be

construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to

say,--

(a) identifying the electronic record containing the statement and describing the manner in which it was

produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the

electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be

stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,--

(a) infomation shall be taken to be supplied to a computer

.

if it is supplied thereto in any appropriate form and

whether it is so supplied directly or (with or without human intervention) by means of any appropriate

equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by

a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course

of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--For the

purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any

other process.

39. In Anvar P.V. vs. P. K. Basheer & Ors. 2014

(10) SCC 473, the Hon'ble Court over-ruled its earlier

decision rendered in State (NCT of Delhi) vs. Navjot

Sandhu 2005 (11) SCC 600, wherein it had been held that

Section 65 (b) was only one of the provisions through which

secondary evidence by way of electronic record could be

admitted and there was no bar on admitting evidence through

other provisions and held as under:-

22. The evidence relating to electronic record, as noted here-in-before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the

.

same. Generalia specialibus non derogant, special law

will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing

with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that

extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not

lay down the correct legal position. It requires to be

overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall

be accompanied by the certificate in terms of Section 65- B obtained at the time of taking the document, without

which, the secondary evidence pertaining to that electronic record, is inadmissible.

40. Accordingly, the aforesaid decision for admitting

any electronic evidence by way of secondary evidence, such

CDR, the requirement of Section 65(b) would be necessary to

be satisfied and no other route under the Indian Evidence Act

can be adopted for the admission of such evidence.

41. This legal position has been reiterated by three

judges of the Hon'ble supreme Court in Arjun Panditrao

Khotkar vs. Kailash Kushanrao Gorantyal 2020 (7) SCC

.

1.

42. It shall be apt to reproduce the relevant

observations, which read as under:-

22. It will first be noticed that the subject matter of Sections 65A and 65B of the Evidence Act is proof of

information contained in electronic records. The marginal note to Section 65A indicates that "special provisions" as to evidence relating to electronic records are laid down in this provision. The marginal note to Section 65B then

refers to "admissibility of electronic records".

23. Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored,

recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a

document, and shall be admissible in any proceedings without further proof of production of the original, as

evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that

"document" as defined by Section 3 of the Evidence Act does not include electronic records.

24. Section 65B(2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being included in conditions 65B(2(a)) to 65(2(d)) is that the computer be regularly used to store or process information for purposes of activities regularly carried on in the period in question. The conditions

mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively.

25. Under Sub-section (4), a certificate is to be produced

.

that identifies the electronic record containing the

statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the

electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of "relevant activities"

- whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to the "best of the knowledge and belief of the person

stating it". Here, "doing any of the following things..."

must be read as doing all of the following things, it being well settled that the expression "any" can mean "all" given the context (see, for example, this Court's

judgments in Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 331 and 1 "3. The first contention is based on an assumption that the word "any one" in Section 76 means

only "one of the directors, and only one of the shareholders". This question as regards the

interpretation of the word "any one" in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief

Inspector of Mines, etc.) and it has been decided there that the word "any one" should be interpreted there as "every one". Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public Om Parkash v. Union of India (2010) 4 SCC 172). This being the case, the conditions mentioned in sub-section (4) must also be interpreted as being cumulative.

32. Coming back to Section 65B of the Indian Evidence Act, sub-section (1) needs to be analysed. The sub-section

begins with a non-obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only

.

takes effect if the further conditions mentioned in the

Section are satisfied in relation to both the information and the computer in question; and if such conditions are

met, the "document" shall then be admissible in any proceedings. The words "...without further proof or production of the original..." make it clear that once the deeming fiction is given effect by the fulfilment of the

conditions mentioned in the Section, the "deemed document" now becomes admissible in evidence without further proof or production of the original as evidence of

any contents of the original, or of any fact stated therein

of which direct evidence would be admissible.

33. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an

electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this

purpose. However, Section 65B(1) clearly differentiates between the "original" document - which would be the

original "electronic record" contained in the "computer" in which the original information is first stored -and the

computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom - the former being primary evidence, and the latter being secondary evidence.

34. Quite obviously, the requisite certificate in sub- section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop

computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases

.

where "the computer", as defined, happens to be a part

of a "computer system" or "computer network" (as defined in theInformation Technology Act, 2000) and it

becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite

certificate under Section 65B(4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which

reads as "...if an electronic record as such is used as

primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in paragraph 24 of Anvar P.V.

(supra) does not need to be revisited.

60. It may also be seen that the person who gives this

certificate can be anyone out of several persons who occupy a 'responsible official position' in relation to the

operation of the relevant device, as also the person who may otherwise be in the 'management of relevant

activities' spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief" (Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time).

61. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly

.

"clarified" in Shafhi Mohammed (supra). Oral evidence in

the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.

Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary

evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.

43.

It would be noticed that even though the defence

has cited the case of Anvar P.V. case (supra) before the

learned Court below, yet the learned Court below treated the

CD as primary evidence by according the following reasons in

para 89 of the judgment, which reads as under:-

89. Admittedly in the present case certificate pertaining to the preparation and taking the CD's Ext.

P-31 and Ext. P-32 on the record are not obtained by the investigating officer at the time of the collection of

the evidence. But on the contrary prosecution examined Naveen kumar, Manager of the hotel (PW-15) who operate the CCTV footage of his hotel and prepared the CD's Ext. P-31 and Ext. P-32 and also examined two witnesses PW-9 Ajit Kumar JTO and PW- 10 C. Pawan Kumar who identified the accused in the CCTV footage. But now the question is in the absence of above certificate, can evidence be given by the person who was In-charge of the server at that time. This point has been clarified in a case 2016 CRI.L..J.

1542 titled as K. Ramajayam alias Appu V. Inspector of Police, Chennai, Para(C) and (L) in which it is held that certificate was not obtained at the time of collection of evidence. Yet, at the time of trial, evidence aliunde can

.

be given through person who was in charge of server in

terms of Section 65B. Hon'ble High Court of Madras in this case also relied the judgment of the Hon'ble

-Supreme Court cited AIR 2015 SC-180, (para 33). Therefore, DAY in view of the law laid down by the Hon'ble Supreme Court in the above case and also the law laid down by the Hon'ble High Court of Madras, it is

absolutely clear that the person who was in-charge of the server can give his evidence in terms of Section 65 B in the trial also as done in this case by PW-15. Even

otherwise also CD's, pen drive, memory card, hard disc

etc containing relevant data in electronic form, are "documents" as defined under Section 3 of the Indian Evidence Act. Court has the power to view CCTV footage and video recording, be it primary or legally

admissible secondary evidence, in the presence of the accused for satisfying itself as to whether

44. Obviously, the reasoning given by the learned Trial

Court for admitting the CDs as evidence are not only

erroneous but are in the teeth of the judgment rendered by

the Hon'ble Supreme Court in Anvar P.V. case (supra).

45. Since the CDR is inadmissible in absence of

Section 65B certificate, we deem it appropriate to consider the

other evidence by eschewing the electronic evidence in the

form of CDR. Accordingly, we analyse the evidence considered

by the Court below without relying upon the CDR.

46. As observed above, the waiter of the hotel could

have been the best witness to establish the last seen theory

and having failed to do so, it calls for drawing an adverse

.

inference and this Court has no hesitation to conclude that the

prosecution has failed to prove that the deceased was last

seen in the company of the appellant.

ii. Hair and finger prints from vehicle

47. As per the prosecution case, the finger prints were

lifted by PW4 Rahul Sharma Dy. S.P., Finger Prints Bureau,

Bharari, who was telephonically called and reached Police

Station, Solan at 8:00 a.m. on 02.07.2012 and it was asked by

the Investigating Officer to find the finger prints inside and

outside the Scorpio vehicle, which was parked in the Police

Station complex and covered with tarpaulin. This witness has

claimed to have examined the aforesaid vehicle and found six

finger prints inside the aforesaid vehicle, which he lifted and

handed over the same to PW 34 SI Nishant Kumar, the

Investigating Officer, who in turn put these finger prints in an

envelope sealed it with seal impression 'T', specimen

impression Ext.PW2/A is stated to have been taken separately

and the seal after use was stated to have been handed over

to H.C. Sohan Lal and in this behalf seizure memo Ext. PW2/C

has been prepared.

48. PW 2 Sohan Lal, in turn, has stated that a team

from FSL Junga, headed by Dr. Vivek Sehajpal had examined

the vehicle bearing Registration No. HP-14B-1718 in the Police

.

Station and he lifted some samples containing four vials of

saliva and 7 samples vials of blood and some samples of hair

and pieces of rexin of the cover of the seat from inside the

vehicle and handed over the same to SI Nishant Kumar, who in

turn, had put all these samples in a cloth and prepared a

separate parcel thereof and sealed it with the seal impression

'T' and specimen impression thereof was drawn separately

vide Ext. PW2/A and seizure memo Ext. PW2/B was prepared,

which was signed by him, ASI Bihari Lal and Dr. Vivek

Sehajpal. He further claims that Inspector Rahul Sharma had

also lifted finger print impression, six number from inside the

vehicle and thereafter handed over the same to SI Nishant

Kumar who, in turn, had put them in an envelope and

thereafter sealed the envelope with seal impression 'T' and on

the basis of seizure memo Ext. PW2/C had been prepared and

signed by him, SI Bihari Lal and Inspector Rahul Sharma and

the seal after use was handed over to him.

49. PW 34 Insp. Nishant Kumar in his examination has

stated that forensic team after removing the tarpaulin from

the Scorpio first of all lifted finger prints from the vehicle. The

sample so lifted were handed over to him. All these samples

thereafter were put into two separate parcels and thereafter

sealed with seal impression 'T', each containing three seals

impression, specimen impression Ext. PW2/A thereafter was

.

taken separately. In this behalf he further claims to have

prepared a detailed seizure memo Ext. PW2/B, which is stated

to have been signed by PW 30 Vivek Sehajpal and attested by

HC Sohan Lal and HC Bihari Lal. He further states that finger

prints team headed by Inspector Rahul Sharma had handed

over an envelope containing lifted fingerprints, which was also

sealed by him with five seals of seal impression 'T' and in this

behalf he had prepared seizure memo Ext. 2/C, which was

signed by Rahul Sharma and attested by the above said

witnesses. The seal after use was stated to be handed over to

HC Sohan Lal.

50. It would be noticed that when PW2 Sohan Lal

sealed finger prints on the spot without numbering the same,

then it is not known how the same got numbered later on. PW

4 Dy. S.P. Rahul Sharma in his cross-examination had

categorically stated that numbering of the finger prints must

have been done subsequently by the concerned Investigating

Officer which would mean that after sealing the finger prints

by PW 2 H.C. Sohan Lal, the envelope was opened and

numbering of the finger prints was done subsequently. If that

be so, the possibility of tampering with the finger prints lifted

from the spot cannot be ruled out.

51. However, what is more glaring is the fact that in

.

the entire process of lifting the finger prints, hair etc., no

independent witness was associated, rather no efforts were

made to join an independent witness. On account of this the

case of the prosecution is to be eyed with suspicion.

52. Since, the offence in which the appellant has been

charged was extremely stringent, the provisions of the Code of

Criminal Procedure relating to search, seizure and arrest were

to be scrupulously followed in both letter and spirit and,

therefore, it was imperative on the part of the Investigating

Officer to join an independent witness at the time of alleged

search and lifting of the sample.

53. The search and seizure before an independent

witness would have imparted, much more authenticity and

credit worthiness to the proceedings so conducted. It would

have also verily strengthened the prosecution case.

54. The safeguards in the Code are otherwise

intended to avoid criticism of arbitrary and high handed action

by the prosecution. The Investigation Officer was bound to

follow reasonable, fair and just procedure as envisaged under

the Code.

55. No doubt, in absence of corroboration through an

independent source, the evidence of the official witness

cannot be disbelieved and distrusted, blind foldedly, if the

.

same is found to be trustworthy. However, when the evidence

of the official witness is found to be not cogent, convincing,

reliable and trustworthy, then on account of non-corroboration

thereof, through an independent source certainly doubt is cast

on the prosecution story.

56.

In the cases like instant one where it is imperative

to join an independent witness, to vouchsafe the fair

investigation. On account of non-joining of independent

witness, normally the accused is entitled to be given benefit of

doubt. On account of non-joining of independent witness at

the time of alleged search and seizure the case of the

prosecution becomes highly doubtful. Be that as it may, the

circumstances will have to be seen alongwith the other

circumstances, which shall ultimately have to be seen with the

other circumstances.

57. Even if the hair found in the car and the finger

prints match, even then the same are of no avail for the

prosecution as it is the story of the prosecution that the

appellant was having illicit physical relations with the

deceased, its but natural that her hair or for that matter even

finger prints would be found inside and even possibly outside

the car but this in itself would not carry the case of the

prosecution any further.

iii. Blood of the deceased found in the

.

mobile of appellant

58. The case of the prosecution is that the appellant

was arrested on 03.07.2012 and at that time was having a

mobile phone with dual SIM was taken into possession by the

Investigation Officer. The mobile phone of the appellant was

opened by the Investigation Officer, who noted down the IMEI

number of the same and also noted down certain SMSs. While

doing so, the Investigation Officer admittedly has not

associated any independent witness and even the messages

alleged to have been written down by the Investigation Officer

vide memo Ext. 16/A. The mobile phone was thereafter put in

a cloth parcel and sealed with seal impression 'S' in the

presence of PW 16, who is an official witness LC Pratima and

mobile phone thereafter was taken into possession vide

seizure memo Ext. PW16/C. The seal after use is stated to

have been handed over to LC Reena. The mobile phone is

stated to have been deposited by the Investigation Officer

with PW 26 MHC Narinder Prakash. It has been stated by PW 6

that the mobile phone of the accused deposited by the

Investigating Officer was in transparent box and he had made

entry qua this in the Malkhana Register. As per the Malkhana

Register, Investigating Officer deposited one mobile phone

make Samsung alongwith rexin body cover and two SIMs in

transparent container to the MHC and made the entry at serial

No. 1029 of the Malkhana Register. However, it would be

.

noticed that while taking the mobile of the appellant in

possession no independent witness has been associated and

no explanation whatsoever has been given by the prosecution

for not associating independent witness while taking vital

piece of evidence i.e. mobile phone of the appellant.

59.

Moreover, the DNA conducted on the phone of the

deceased Ext. 9, as per the report of the FSL, yielded highly

degraded DNA which showed no amplification and hence no

DNA profile could be generated from the phone and thus again

vital link in the evidence of the prosecution connecting the

phone of the deceased with that of the prosecution has not

been proved.

iv. Mobile phone of the deceased got recovered by appellant

60. Mobile phone of deceased is alleged to have been

recovered at the instance of the appellant on the basis of the

disclosure statement Ext. PW11/A, which has been recorded

by the Investigating Officer. On the basis of the disclosure

statement, the mobile of the deceased is stated to have been

recovered and thereafter taken into possession vide Ext.

PW11/B. Now, in this background, it would be necessary to

advert to the statement of PW11 Krishan Lal, who at the

relevant time was working as SDO, BSNL and was working

under the deceased. He stated that he was called to the Police

Station by the police official and when he was present in the

.

police station, Solan alongwith Nand Lal, the appellant had

made a disclosure statement and on the disclosure statement,

the parts of the mobile phone of the deceased was recovered

by the appellant. This witness also identified the mobile phone

of the deceased.

61.

As per PW 11 Krishan Lal, battery Ext. P26 was

inserted in mobile Ext. P25 by the Investigating Officer before

preparing a parcel thereof but it was found out of order.

However, when another battery was put in mobile Ext. P25, it

started working and then IMEI number of the phone was

noted. Whereas, the PW 34 Nishant Kumar states that "I also

recorded IMEI number of Mobile phone Ext. P 25, however, it

was not found to be in working order as it had rained during

that period".

62. The aforesaid statement creates a serious doubt

as to whether the alleged mobile phone was in fact recovered

in the presence of PW 11 Krishan Lal or not. As per PW 11,

police official had another battery, which also creates a further

doubt that the alleged mobile phone could have been planted

by the Investigating Agency

63. As per the case of the prosecution, the alleged

mobile phone was got recovered by the police at the instance

of the accused having IMEI number 352724044495538,

.

whereas the police relied upon the call details of mobile phone

of the deceased having IMEII number whereof was

35272404449553. Under these circumstances it has not been

proved from the IMEI number of the mobile phone used by the

deceased so got recovered at the instance of the accused.

64.

As observed above, PW 11 in his statement has

clearly stated that the police inserted another battery in the

phone and got recovered the IMEI number, clearly goes to

establish that the Investigating Agency already had the

knowledge with regard to the make of the mobile.

v. Burnt cloth and chappal got recovered by appellant

65. The case of the prosecution is that during the

course of investigation, the appellant had made statement to

the effect that she had burnt clothes somewhere at

Kararaghat. This statement was recorded by the I.O. in the

presence of PW 11 Krishan Lal and Nand Lal and on the basis

of the disclosure statement the ashes of the burnt clothes

were recovered in presence of PW3 Om Prakash and PW 11

Krishan Lal and the same were taken into possession vide

memo Ext. PW3/A. As per the statement of PW3 Om Prakash,

memo Ext. PW3/A was prepared and the same was sent by

him, however, the official of the telecom department states

that the same was prepared in the vehicle at the spot.

However, PW11 Krishan Lal clearly deposed that he could not

.

tell as to by whom memo Ext. PW3/A has been written and has

further stated that the same was written in the police station.

66. Apart from above, the so called disclosure

statement of the accused has not been put to PW 11 Krishan

Lal and the same has also not been put to this witness. As per

PW 11 Krishan Lal, the statement of the appellant is stated to

have been recorded by head constable at the instance of ASI,

which is contradicted by the Investigating Officer PW 34

Nishant Kumar and he states that the statement of the

accused Ext. PW11/D had been written by H.C. Om Prakash on

his dictation.

67. That apart, the case of the prosecution is that the

Investigating Officer PW 34 had called PW 3 Om Prakash at

the place of recovery, which was 300 metres ahead of

Kararaghat, whereas PW 3 states that he met the police party

at Kararaghat and then went to the place of recovery in the

vehicle of the official of the telecom department and only 3-4

persons were sitting in the vehicle.

68. Whereas PW11 Krishan Lal states that "we have

arrived at Kararaghat around 9:00 am and had waited

thereafter for 10-15 minutes for Pradhan", while PW34 further

proceeds to state that "I could not say as to whether PW3 Om

Prakash has arrived before our arrival again stated that he

was already present." Meaning thereby, that PW3 Om Prakash

.

has not corroborated the version of the prosecution and has

further denied portion 'a' 'b' and 'c' of his statement Ext. D2

recorded under Section 161 Cr.P.C. Strange enough, the I.O.

has not associated any witness from Kararaghat where the

accused person is stated to have visited on 01.07.2012,

69.

r to particularly, when it has come in evidence that there are

shops and houses situated at Kararaghat.

As per the case of the prosecution the nephew of

the accused was also in the company of the accused on

01.07.2012 at kararaghat but then no steps were taken to

associate nephew either as a witness or interrogative. It needs

to be noticed that only ashes of the burnt clothes and hooks

so recovered from the spot but then it has not been proved by

any proper evidence that the burnt clothes and hook belonged

to the appellant.

70. As per the appellant she was taken into custody

by the police on 02.07.2012 and this fact is otherwise

corroborated by P13 Sanjeev Kumar and PW14 Bhupinder

.

Minhans. As per PW 10 Pawan Kumar, he had identified the

appellant in the CCTV footage on 01.07.2012 on the basis of

her features and way of walking and on the basis of clothes

worn by her.

71. Clearly this statement is blatant lie because he

further goes to state that he had never met the accused after

the year 2000 after leaving the school and had never

personally met the accused. At this stage, it would be relevant

to note that the prosecution examined PW9 Ajit Kumar, who

after seeing CCTV footage had not identified the accused in

the said footage, even though he was working in the office of

PW9 Ajit Kumar and was familiar to the appellant.

72. That apart, as observed above, the CCTV footage

contained in the CD has to be kept out of evidence for want of

certificate under Section 65B of the Evidence Act. Thus, there

is no proof whatsoever regarding the clothes that were worn

by the appellant on the date of the alleged incident. The

prosecution has further failed to connect the accused with the

recovery of chappal through disclosure statement Ext. PW11/F.

The prosecution alleged that the appellant had identified the

scene of occurrence vide identification memo Ext. PW11/G

and the same is not admissible in evidence with regard to

identification at the spot because the police and other

witnesses had already visited the spot.

.

73. Lastly and more importantly, the FSL in Clause (iii)

of its report has categorically observed as under:-

Iii) Exhibit 9 (mobile, Sushil Kumar), Exhibit-11 (burnt cloths, ash and soil), Exhibit-12 (steel hooks) and Exhibit-15 (chappals, Asha Devi) yielded highly degraded DNA which showed no amplification with

AmpF/STR identifier plus PCT Amplification Kit; hence no DNA profiles could be generated from these exhibits.

74. Thus, the prosecution has miserably failed to link

the burnt clothes and chappal i.e. alleged to have been

recovered from the accused, beyond reasonable doubt and

thus even this circumstance is held against the prosecution.

vi. Call details of the Mobile of the appellant

75. As per the prosecution case, the Investigating

Officer after taking the mobile phone of the appellant had

recorded the sent messages from the message box vide

memo Ext. P 16/A. However, while doing so, the Investigating

Officer has again not bothered to associate any independent

witness. As per Ext. 16/A, more than 13 messages had been

sent from the mobile phone of the appellant i.e. Mobile No.

94183-62536, even if messages are to be taken into

consideration, even then in the messages, does the name of

the deceased appear. The motive of murder cannot also be

inferred from the messages.

76. It was incumbent upon the prosecution to have

.

examined the brother-in-law, (husband of the sister of the

appellant) who had received the messages and having failed

to do so, it cannot be held that the messages have to be

excluded from consideration as lawful evidence.

77. Lastly and more importantly, the statement of PW

16 HHC Pratima regarding the SMS sent messages Ext. PW16A

is inadmissible in evidence as the same is hit by Section 65B

of the Indian Evidence Act. The witness did not produce the

primary evidence i.e. mobile but has only produced the

alleged transcript which according to her was the summary of

the SMS sent messages.

vii. DNA of the accused and DNA of deceased

match with the vial taken from water bottle by forensic team

78. The case of the prosecution is that PW 30 Dr.

Vivek Sehajpal had taken the swab from the ring of water

bottle unsealed found inside the car during its inspection.

Needless to say that PW 30 as already observed above, had

not associated any independent witness at the time of taking

swab inside the car during inspection. As per PW2 HC Sohan

Lal, unsealed water bottle of Kinley brand was found lying

inside the car and the same had been taken into possession

by the Investigating Officer, whereas the sealed water bottle

containing water Ext. P1 was found to be half filled. This

witness has nowhere stated that PW30 had taken swab from

.

the ring of the unsealed bottle.

79. As per PW 26 HHC Narinder Prakash, SI Nishant

Kumar, the then in-charge of Malkhana has deposed that SI

Nishant Kumar has deposited the sealed water bottle of Kinley

brand sealed with seal 'R' and the water bottle was almost

80.

r to half filled. However, as per the report of FSL, the bottle was

full of water containing 1015 ml colourless liquid.

Now adverting to the statement of PW 30 i.e. Dr.

Vivek Sehajpal, the sample taken by him from the car had

been sealed by the Investigating Officer with seal 'T' unlike PW

26 who states that the same was sealed with seal 'R'.

81. Therefore, keeping in view the material

contradiction, it cannot be said that the sample taken from the

car was the same sample that was sent to FSL, not only on

account of the aforesaid inconsistency and contradiction but

also because the prosecution failed to associate any

independent witness.

82. As per the case of the prosecution, PW 24 Dr.

Mukta, Rastogi, who conducted the medical examination and

took blood sample, hair sample, nail clipping etc. These

samples were taken in four vials with the hospital seal and

handed over to the accompanying police officials. As per MLC

PW20/B, these samples had been received by LC Meenakshi

No. 303. Whereas, as per the Malkhana register the aforesaid

.

articles have been received through PW 26 HHC Narinder

Prakash from PW31 Krishan Chand.

83. Therefore, in such circumstances, it is not

understandable that when the sample had been received by

LC Meenakshi, then how and in what condition the same has

been deposited by PW 31 Krishan Chand and obviously in such

circumstances, the possibility of tampering with the sample

cannot be ruled out.

viii. Weapon of offence thrown by appellant

84. The case of the prosecution is that accused after

killing the deceased had thrown knife which had been used by

her in some vehicle and the same could not be traced.

Admittedly, the appellant was arrested on 03.07.2012 and

there is no explanation whatsoever as to why her statement

was not immediately recorded under Section 27 of the Indian

Evidence Act for the recovery of the weapon of offence.

85. However, as per the statement of PW 35, in order

to trace the weapon of offence, he had visited the place on

10/11.07.2012. No explanation has been given by the

prosecution as to why they have not visited the place where

the alleged weapon of offence is stated to have been thrown

by the appellant. The Investigating Officer has not even cared

to prepare any site plan nor recorded the statement of the

appellant in the presence of any independent witnesses with

.

regard to the story regarding the throwing of the weapon of

offence.

ix. Motive

86. The case of the prosecution is that the accused

stabbed the deceased to death as the deceased used to

sexually assault her and compel her to indulge in unnatural

sex and prepare MMS thereof.

87. Evidently, no MMS was retrieved by the

prosecution either from the mobile phone of the appellant or

the deceased. Rather none of the witnesses except PW W34

Ins. Nishant Kumar and PW 35 Chaman Lal have stated about

this fact.

88. PW 34 has stated that during investigation, the

appellant disclosed that she had killed the deceased as she

had been fed up with the abnormal behaviour of the deceased

in subjecting her to demand of unnatural sex. To similar effect

is the statement of PW 35 Chaman Lal, who attributed motive

of killing on the accused because the deceased used to

sexually assault her and compelled her to indulge in unnatural

sex and to prepare MMS thereof.

89. Needless to say, the statement in the nature of

extra-judicial confession by its very nature is rather a weak

type of evidence and require appreciation with great deal of

.

care and caution. Where an extra judicial confession is

surrounded by suspicious circumstances its credibility become

doubtful and it loses its importance. It is equally settled that it

is a rule of caution where the Court would generally look for

an independent reliable collaboration before placing any

reliance on extra judicial confession.

90. However, it does not mean that a confession

cannot be sustained on the basis of extra judicial confession,

but that would only be in cases where the confession is proved

voluntary and truthful. It has to be free from any inducement.

The evidential value of such confession also depends on the

person to whom it is made. Going by natural course of human

conduct, normally a person would confide about a crime

committed by him/her only with such person in whom she/he

has implicit faith.

91. Normally, a person would not make a confession

to someone who is a total stranger to him. Moreover, the

Court has to be satisfied with the reliability of the confession

.

keeping in view the circumstances in which it is made. As a

matter of rule, corroboration is not required. However, if an

extra judicial confession is corroborated by other evidence on

record it requires credibility.

92. As regards the disclosure statement of the

appellant in the instant case, recorded in the police custody,

the same could not have been exhibited by the learned Trial

court as it was hit by Section 25 of the Indian Evidence Act.

93. The conviction based on circumstantial evidence

requires each and every link of the chain to be clearly

established by reliable and clinching evidence.

94. The law with regard to conviction in the case of

circumstantial evidence is very well crystallized by the Hon'ble

Supreme Court in Sharad Birdhichand Sarda vs. State of

Maharashtra, (1984) 4 SCC 116 and we may gainfully refer

to the following observations as contained in Paras 153 and

154 thereof which reads as under:-

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

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and

.

'must be or should be proved' as was held by this Court

in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and

divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent ronly 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,

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

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

(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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

95. Equally settled is the principle of law that however

strong is suspicion may be, it cannot take place of a proof

beyond reasonable doubt.

.

96. It has thus been seen that the Hon'ble Supreme

Court has repeatedly held that the circumstances from which

the conclusion of the guilt is to be drawn should be fully

established. It has been held that the circumstances

concerned 'must or should' and not 'may be' established. It

has been held that there is not only a grammatical but a legal

distinction between 'may be proved' and 'must be or should

be proved'. It has been held that the fact so established

should be consistent only with the hypothesis of the guilt of

the accused, i.e. to say, this should not be explainable or any

other hypothesis except that the accused is guilty. It has been

held that circumstances should be of a conclusive nature and

tendency and they should exclude every possible hypothesis

except the one sought to be proved and there must be a chain

of evidence so complete, so as not to leave any reasonable

ground for the conclusion consistent with the innocence of the

accused and must show in all human probabilities the act

must have been done by the accused.

97. Applying the aforesaid principles to the instant

case and what can be gathered from the discussion thus so far

is that the prosecution has miserably failed to connect the

linkages in the chain of circumstantial evidence. It is firstly

relied upon inadmissible evidence and then on account of its

overzealousness has tried to effect the alleged recoveries that

.

too without associating any independent witnesses. The

entire investigation is shrouded with suspicion and cannot,

therefore, be relied upon.

98. The prosecution has even failed to establish the

motive and the entire case hinges around grave suspicion,

99.

r to however, so strong, cannot be allowed to take place of legal

proof.

In view of the aforesaid discussion and for the

reasons stated above, the judgment of conviction and

sentence, as recorded by the learned trial Court, cannot

sustain and the same is accordingly set aside. Accordingly, the

appeal is allowed and the appellant is ordered to be released

immediately if not required in any other case.

100. 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 Registrar (Judicial) of this Court,

which shall be effective for a period of six months with a

stipulation that in any event of SLP being filed against this

judgment or on grant of the leave, the appellant on receipt of

notice thereof shall appear before the Hon'ble Supreme Court.

101. Pending application(s), if any, stands disposed of.

Record be sent back.

                                           (Tarlok Singh Chauhan)
                                                   Judge



                                             (Ranjan Sharma)




    08.08.2023                                     Judge
        (sanjeev)