Chandresh Sharma vs State Of H.P
2023 Latest Caselaw 15821 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 497/2018 Reserved on: 27.9.2023 Decided on : 10.10.2023

.

    Chandresh Sharma                                            .....Appellant





                                   Versus





    State of H.P.                                                            ....Respondent

    Coram:

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

Whether approved for reporting?1

For the Appellant:

For the Respondent:

r toMr. Ram Murti Bisht, Advocate.

Mr. I. N. Mehta & Mr.Yashwardhan

Chauhan, Sr. Additional Advocate Generals, Ms. Sharmila Patial & Mr. Varun Chandel, Addl. A.Gs.

____________________________________________________________________

Justice Tarlok Singh Chauhan, Judge

The appellant/convict has filed the instant appeal

against the judgment, dated 20/25.9.2018 passed by the

learned Additional Sessions Judge-III, Kangra at Dharamshala,

whereby he has been convicted and sentenced to undergo life

imprisonment and to pay a fine of Rs. 20,000/- and, in default

of payment of fine, to further undergo simple imprisonment for

a period of six months under Section 302 of Indian Penal Code

(for short, IPC) and to undergo rigorous imprisonment for a

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

period of 10 years and to pay a fine of Rs. 10,000/- and, in

default of payment of fine, to further undergo simple

.

imprisonment for a period of 3 months under Section 376 IPC.

Both the sentences were ordered to run concurrently.

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

13.1.2013, at about 12.30 a.m., Ram Pal (PW9) visited the

Police Post, Gaggal, and informed them that the room of

Archana Mahajan (since deceased), who used to live in his

house on rent basis, was closed for the last two days, and when

her room was opened by her mother, she was found to be dead

in her room. On receipt of such information, HC Desh Raj, along

with HHC Madan Lal and Constbale Nawal Bharti, rushed to

the spot. The SHO, P.S. Kangra, and Dy. SP were also informed

about the incident telephonically vide Rapat No. 16, and

accordingly, SHO Mohinder Singh along with ASI Mehar Singh,

Lady HC Raksha, and HHC Harbans Singh, visited the spot at

place 'Ichhi' in a government vehicle bearing number HP-68-

2341. After reaching the spot, LHC Raksha inspected the body

of the deceased, and after inspection, the inquest report, i.e.,

forms 25.35 A, B, and C, were filled in. During the course of the

inspection, injury marks were noticed on the neck of the

deceased, and blood was found oozing out of her private parts.

On 13.1.2013, the Investigating Officer, Dy. SP Mohinder Singh

(PW42), recorded the statement of complainant Sudesh

.

Mahajan (PW1) under Section 154 Cr.P.C. He also took

photographs of the spot with the help of official camera. The

dead body of the deceased was subjected to postmortem

examination at Dr. RPGMC, Tanda, and after clicking

photographs of the dead body, postmortem report was obtained,

wherein the cause of death was found to be that of neck

compression by ligature strangulation being sufficient to cause

death in the ordinary course of nature; therefore, an offence

under Section 302 of the Indian Penal Code was made out, and

F.I.R. 21/2013 dated 11.1.2013 came to be registered.

3 During the investigation, the investigating officer

visited the rented accommodation of the deceased at Ichhi and

found one blood-stained pillow cover alongwith one woollen

glove on the floor. He clicked the photographs of the aforesaid

articles and took possession of same after sealing them in a

cloth parcel vide separate memo. During the search of the room,

one mobile phone reliance LG, one mobile age charger, one

greeting birthday card, one ATM card, lock, key, and one

wrapper, over which 'Hit Killer Rats' was written, were recovered

and taken into possession vide separate recovery memo in the

presence of witnesses Pawan Kumar.

.

4 On 14.1.2013, on the basis of the statement of

witness Nishant Khanna, one note bearing the signatures of the

appellant, produced by Rakesh Kumar, was taken into

possession vide a separate seizure memo in the presence of

witnesses Vipan Sharma and Anish Kumar. During further

inspection of the room of the deceased, "Pakauras" Mutton and

Pulao were taken into possession vide separate seizure memo in

the presence of witnesses Ram Pal and Pawan Kumar. The

photographs of the kitchen from where the aforesaid "Pakauras,

Mutton, and Pulao were taken into possession, were also

clicked. Thereafter, the appellant was arrested. While in police

custody, the appellant made a disclosure statement under

Section 27 of the Indian Evidence Act to the police in the

presence of witnesses Pawan Kumar and Khem Singh to the

effect that he had hidden the "Dupatta" in the almirah of the

deceased, which had been used by him to strangulate her. The

appellant further disclosed that he had thrown the rope, which

was also used to kill the deceased, in the bushes near Mount

View School, Ichhi. The appellant had also disclosed that after

committing the offence, he had locked the room and concealed

the keys in the window, and he could get the same recovered

and spot map qua recovery on the basis of the disclosure

.

statement prepared by the investigating officer. Thereafter, in

pursuance of the disclosure statement, the weapon of offence,

i.e., rope, Dupatta, and the key, were taken into possession by

the police vide separate memos in the presence of witnesses.

5 During further investigation, while conducting

search of the rented premises of the appellant, his two

photographs, alongwith one lady and the deceased, were

recovered and taken into possession vide separate memo in the

presence of witnesses Jagdish Chand and Ashwani Kumar. The

appellant was medically examined at Civil Hospital, Kangra,

where the blood samples were preserved for DNA profiling by

Dr. Arvind Sharma, who, after sealing the same, handed them

over to the police. On the basis of the application moved by the

investigating officer, Dr. Sushil Sharma (PW22) gave his opinion

that the ligature mark mentioned in the postmortem report

could be possible with plastic rope. On 28.1.2013, parcels

containing a lock, blood-stained pillow, glove, and jar containing

mutton Pulao and Pakora, alongwith plastic rope, dupatta, key,

viscera of the deceased, and apparel, were sent to RFSL,

Dharamshala, for analysis, and reports thereof were obtained.

On 1.2.2013, parcels containing lock and key were sent to RFSL

Gutkar Mandi, and the report was obtained. During the

.

investigation, nail clips, vaginal swab and blood on gauze of the

deceased, and blood samples of the appellant on the FTA card

were sent for DNA profiling to SFSL Junga, and a report was

obtained. The note written by the appellant, diaries, birthday

greeting cards, specimen handwriting, and his signatures were

sent to RFSL, Dharamshala for comparison, and a report

thereof was obtained. The Investigating Officer also obtained the

phone number of the appellant. On receipt of the result of DNA

profiling from SFSL Junga, it was found that the deceased was

subjected to sexual assault, and the Investigating Officer

prepared the supplementary challan and filed the same in

court. The statements of the witnesses were recorded under

Section 161 Cr. P.C. as per their respective versions. After the

completion of the investigation, Challan presented before the

court for trial of the appellant.

6 Thereafter, an application was filed by the

prosecution for amending the charge by adding additional

charge under Section 376 IPC and the application was duly

allowed and additional charge was framed on 4.8.2017 and put

to the appellant, to which he pleaded not guilty and claimed

trial.

.

7 In order to prove its case, the prosecution examined

as many as 43 witnesses. Thereafter, the statement of the

appellant was recorded under Section 313 Cr.P.C., wherein he

claimed himself to be innocent and examined three witnesses in

his defence.

8 It is pertinent to mention here that no additional

evidence save and except re-examining the Investigating Officer

was led by the prosecution on the additional charge and

strangely enough, the learned trial court did not even bother to

examine the appellant under Section 313 Cr.P.C. for an

additional charge that was framed under Section 376 IPC.

9 The learned trial court, after evaluating the oral as

well as documentary evidence convicted and sentenced the

appellant, as aforesaid.

10 It is vehemently argued by Mr. R. M. Bisht, learned

counsel for the appellant that the findings recorded by the

learned trial court are totally perverse and therefore deserve to

be set aside. He has pointed out certain discrepancies in the

prosecution case, which, according to him, strike at the very

core of the prosecution case, making its story inherently

improbable and absolutely untrustworthy.

.

11 On the other hand, Mr. I. N. Mehta, learned Senior

Additional Advocate General assisted by Ms. Sharmila Patial,

learned Additional Advocate General, would argue that the

learned trial court has painstakingly discussed each and every

aspect of the case, more particularly, oral as well documentary

evidence that has come on record and it is only thereafter that

the appellant has been convicted and sentenced and in such

circumstances, no interference is warranted.

12 We have heard the learned counsel for the parties

and have also gone through the records of the case.

13 At the outset, it needs to be observed that there is no

eye witness in this case and it rests completely on

circumstantial evidence. As per the settled legal position, in

order to sustain conviction 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 appellant only and none else.

The circumstantial evidence must be complete and incapable of

explanation of any other hypothesis, than that of the guilt of the

appellant and such evidence should not only be consistent with

the guilt of the appellant 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.

14 However, in order to satisfy ourselves regarding the

correctness of the findings recorded by the learned court below,

we would have to first examine the evidence led by the parties.

15 PW1 Sudesh Mahajan is the father of the deceased,

who stated that his daughter along with the appellant was

working in Reliance Company at Ichhi for the last year. The

deceased had rented accommodation at Ichhi, whereas the

appellant was working at Kangra with his daughter. The

appellant had rented accommodation at Mator and used to visit

his house at Village Dhulara along with his daughter. The

appellant was introduced as a friend. She had a mobile phone,

but he did not know its number. His nephew Saurav also used

to live with his daughter at Ichhi. On 11.1.2013, the appellant

boarded his nephew on the bus at Gaggal and reached Dhulara.

On the same day, at about 8:00 p.m. his daughter talked to her

mother on mobile. On the next day, he as well as his wife rang

up the deceased several times, but she did not respond.

Afterward, his wife telephoned the appellant inquiring about her

daughter, who told him that the deceased had gone to appear in

an interview and was likely to come afternoon. Thereafter, his

.

wife telephoned twice and then the appellant told her that the

deceased would be back by 2.00 or 3.00 O'clock. After that, he

sent his wife Surendra, his sister-in-law, and nephew to Ichhi to

inquire about the deceased. The rented house of the deceased

was locked from outside. On this, his wife wanted to stay at

Ichhi because of night and thereafter broke open the lock of the

door of the rented house and found Archana lying dead on the

cot. The postmortem of Archana was conducted at

Dr.R.P.G.M.C. Tanda. He had reasons to believe that the

appellant had murdered his daughter Archana being her friend.

He made a statement under Section 154 Cr.P.C Ext.PW1/A.

16 In his cross-examination, he stated that his

daughter was an undergraduate and had also done a computer

course, but he feigned ignorance regarding the place where she

had done a computer course. He further feigned ignorance

regarding the place where his daughter was residing. He did not

know who had provided rented accommodation to her. He

voluntarily stated that his wife could tell him about the same.

He stated that he did not know anyone by the name of Rohit

and stated that his daughter remained at Dharamshala for

about 4 years. He further stated that he had known the

appellant for about 2 years as he used to visit his house at

.

Dhulara. He admitted that his daughter never disclosed to him

that the appellant had ever maltreated his daughter. He stated

that Saurav Mahajan had met at about 4:30 p.m. on

11.01.2013 as he was at home. He voluntarily stated that it was

the appellant, who boarded his nephew in the bus from Gaggal

on 11.1.2013. He stated that the distance between his house

and that of Saurav Mahajan was about 200-250 metres. He

admitted that he did not talk with Saurav Mahajan on

12.01.2013. He stated that he did not know Nishant Khanna

and also feigned ignorance regarding his daughter having an

affair with Nishant Khanna, who was also employed in Reliance

Company in Hamirpur. He also feigned ignorance regarding the

presence of Nishant Khanna along with the deceased at Ichhi on

10.1.2013. Lastly, he stated that he suspected the involvement

of the appellant in the murder of his daughter since he was

telling that his daughter had gone for an interview whereas, she

had already died by that time.

17 The mother of the deceased, Surendra Kumari,

appeared as PW2, and in addition to what was stated by the

father of the deceased (PW1), she stated that Saurav Mahajan

had reached village Dhulara on 11.1.2013 at about 6:00 p.m.

She had talked to her daughter on 11.01.2013 at about 8:00

.

p.m. who told her that she was eating 'BARANJ' and was all

right. On 12.01.2013, she rang up her daughter at about 8:30

a.m., but she did not pick up the phone upto evening she kept

on calling her daughter, but she did not respond and thereafter

she rang up the appellant as he had visiting terms with her

daughter in her room being an employee of reliance company.

On being asked, the appellant told that her daughter had gone

to Dharamshala for an interview and was likely to come back at

2:00 p.m. or 3:00 p.m. On 12.01.2013 at about 7:00 p.m. she

along with her nephew and sister-in-law started from village

Dhulara to Ichhi and when they reached at Ichhi, she inquired

about her daughter from the owner of the house, namely,

Rampal. The owner of the house informed that he saw Archana

on 11.01.2013 in the morning hours. They wanted to stay in the

room of Archana because it was night and it was then they

broke open the lock of the door of the house and entered the

room and found her daughter lying dead on the cot, upon which

she rang up the police. Police personnel including one lady

constable came to the spot. The lady constable examined the

dead body of the deceased and then they noticed that the

deceased had a ligature mark on her neck and the blood was

oozing out from her nostrils and her tongue was out of her

.

mouth. The blood was also oozing out from her private part. She

suspected that the appellant had killed her daughter as the

appellant had sent her nephew to the village. She remained

associated with the police on 12.01.2013. Saurav Mahajan had

told her that on 11.01.2013 appellant was at Ichhi. Saurav

Mahajan had also told her that Nishant, the appellant, and

Archana had taken lunch together and thereafter Nishant had

left for his house to Hamirpur and the appellant had brought

him to Gaggal bus stand and boarded him in the bus to village

Dhulara. The owner of the house, Rampal, and the appellant

frequently used to visit rented accommodation of Archana.

18 In cross-examination, she admitted that she knew

Rohit and that he used to trouble his daughter during her stay

at Dharamshala. She also admitted that Rohit had criminally

intimated her daughter and he had also gone to the computer

centre where she was studying and had troubled her. However,

she denied the suggestion that she had shifted her daughter's

accommodation from Dharamshala to Ichhi due to problems

created by Rohit. She voluntarily stated that she had shifted

due to her job assignment. She admitted that the appellant was

on visiting terms for about 2 or 3 years. She further stated that

the appellant used to misbehave with her daughter as well as

.

with her and used to intimidate her. However, she did not state

any specific words, which might have been uttered by the

appellant. She further stated that her daughter used to tell her

that she would not solemnize her marriage. She feigned

ignorance that the appellant used to look after her daughter

before 11.01.2013. She admitted that the deceased Archana

and Saurav Mahajan used to visit the village together on the eve

of vacations. Saurav had reached village Dhulara at about 6:00

p.m. on 11.01.2013, but she admitted that she had not talked

to him on 11.1.2013 and had talked to him only on 12.01.2013

when her daughter did not pick up the phone. She talked to

Saurav in the presence of her sister-in-law Raksha and in her

presence, he did not tell as to what had happened on

10.01.2013. She specifically stated that she did not know

Nishant Khanna and Saurav also did not tell her about Nishant

Khanna nor did she have any telephonic conversation with him.

She stated that she did not know Rita Khanna, Sonam Thapa,

Negi, and Amit Chaudhary. She further stated that Saurav

broke open the door with the help of stone in their presence.

She did not notice goods lying inside the room. She did not

know that Nishant Khanna had visited the room of the deceased

on 10.01.2013. She did not know that Saurav was sent by her

.

daughter to tell her that her friends were coming to stay with

her in residential quarter. She did not remember the time when

she had called the appellant. She admitted that the mother of

the appellant had talked to her on 12.01.2013 at the instance of

the appellant. She admitted that she suspected the involvement

of the appellant in the killing of her daughter since he had told

a lie about her daughter having gone for an interview because

she had died by that time.

19 PW3 Sangeeta Thapa stated that she had been

residing at Lower Sham Nagar, Dharamshala with her daughter

in a rented house. She knew Archana as they had been on

visiting terms. On Friday, before Lohri of 2011, she got a

telephonic call from the deceased that she would be coming to

Dharamshala and staying in her house as on Saturday, she had

an interview there. On Saturday, she got a call from her cousin

Sandeep Verma that Archana was not picking up the phone and

that her parents were worried. She told him that Archana was

to come to her house, but she did not visit her. She on the

askance of Sandeep Verma made calls to Archana and also

forwarded messages, but she did not pick up the phone nor

gave reply to her messages. She then at the instance of Sandeep

Verma made a call to her mother. She told that Archana had

.

been found dead and her dead body was lying at Tanda

Hospital. She on the next day in the early morning reached

Tanda Hospital, where the father of Archana told her that she

had been murdered and postmortem examination was being

conducted on her body. Archana had told her that she had

friendship with the appellant and her friendship had now

broken. She had also told her that they were not having good

relations and the appellant had been getting annoyed with her.

She had tried to patch up the differences between Archana and

the appellant but in vain. She further stated that the appellant

and the deceased had been on taking terms even after the

breakup. At this stage, she was declared hostile and cross-

examined by the learned Public Prosecutor. In cross-

examination, she denied that she had stated to the police that

she suspected that due to differences between the appellant and

the deceased, the appellant had committed the murder of

Archana.

20 In cross-examination conducted by learned defence

counsel for the appellant, she stated that she had known

Archana and the appellant for last about 4-5 months and had

visited the residential quarter of Archana 2-3 times. During this

period, she had also visited her 3-4 times. She talked to the

.

mother of Archana for the first time on Saturday morning and

got acquainted with her. She feigned ignorance regarding

deceased friends and colleagues visiting her residential quarter.

She stated that the deceased and the appellant had told her

that they were to get married. She feigned ignorance that the

appellant had been taking due care of Archana. She stated that

Saurav Mahajan had been residing with Archana. However,

Archana did not tell her on that day on the phone that Nishant

Khanna was to visit her and was to stay with her on that night.

She denied the suggestion that Archana had an affair with Rohit

Sharma and Nishant Khanna and stated that Archana had an

affair with the appellant only. Archana was the adopted

daughter of PW1 and PW2.

21 Saurav, cousin of the deceased, appeared as PW4

and stated that the appellant was working in Reliance company

at Kangra and had been frequently visiting the residential

quarter of Archana. The appellant had been asking Archana to

get marry him but she had been refusing to marry him. On

10.1.2013, Archana told him that her friend was coming to her

from Dharamshala and he should go to the quarter of the

appellant to stay at night. He and the appellant had meals in

the appellant's residential quarter at Ichhi. On next morning,

.

they came with an empty cylinder to the residential quarter of

Archana at Ichhi, where Nishant was there. The appellant on

noticing Nishant became sad. He also entered the quarter and

noticed Nishant for the first time. They all had breakfast in the

quarter of Archana. They took the cylinder and left it at Matour

and Archana went to her office, while the appellant returned to

his quarter at Ichhi. Archana made a telephonic call to him at

12 noon to get green peas and at about 1:00 p.m. he not only

got the peas, but Pakora also and went to her residential

quarter. There he found the appellant, Nishant, and Archana.

Archana cooked rice Baranj and they all took the same and

thereafter came to Ichhi bus stop. Archana went to her office

and Nishant left for Hamirpur and he and the appellant came

together up to Gaggal. Thereafter, this witness went to Chamba.

He later came to know that Archana's mother talked with her on

11.1.2013 at about 8.00 a.m. and on the next morning,

Archana did not pick up her phone. The mother of the deceased

called the appellant at about 12:00 noon, who informed her that

Archana had gone to appear in an interview and would return

by 5:00 p.m. The deceased mother again called her on mobile at

about 3.00 p.m but she did not receive the same. When she

again called the appellant, she was informed by the appellant

.

that Archana would return by 6.00-7.00 p.m. Thereafter, the

deceased's mother, his mother, and he hired a taxi and reached

the residential quarter of Archana at about 8.30 p.m. and found

the door locked. They went to landlord Ram Pal and the

deceased's mother gave a call to the appellant, who told her that

Archana was with her friend at Dharamshala. He broke open

the lock to stay in the room and found the dead body of the

deceased lying on the bed. They accompanied by landlord Ram

Pal went to Police Post Gaggal to lodge a report. The police

reached the spot and the dead body of Archana was taken to

Tanda Hospital for post-mortem. He then again returned to the

residential quarter with Pawan and the police took into

possession mobile phone, mobile charger, ATM card, and one

wrapper with Mark "Rat Killer" vide memo Ex.PW4/A. The

pillow cover and gloves were sealed and taken into possession

vide memo Ex.PW4/B. He also recognized the case property.

22 On being cross-examined, this witness stated that

the appellant on noticing Nishant had remarked that Archana

would have committed a wrongful act with Nishant and he had

told him that she was his sister and she would not think of

doing such an act. He stated that the appellant had committed

the murder of Archana. He further stated that the appellant

.

used to quarrel with Archana and had been impressing her to

marry him, but she refused. He admitted that he did not bring

this fact to the notice of her parents his parents or other family

members. He stated that he knew PW3 Sangeeta, who used to

visit quarter of the deceased at Ichhi many times. He and the

appellant took meals in the normal course and were normal on

that day. He further stated that he, Nishant Khanna, the

appellant, and Archana did not talk on that day. He reached his

native place in Chamba at 4:00 p.m. on that day and was given

a call by Archana's mother that she was receiving the call and

all other families including the parents of Archana were present

there. He tried to contact Archana's friend and the appellant to

ascertain the whereabouts of Archana on that morning. He did

not know whether Archana's mother contacted the appellant at

Dharamshala to find out the whereabouts of Archana on that

day. He stated that he did not tell to any family member that

Nishant was in the quarter of Archana. She did not tell him that

she was having an affair with Nishant and wanted to marry

him. He further stated that he, Archana and the appellant had

the knowledge of the place where the key used to be kept, but

stated that he could not trace the key. He admitted that Pawan

Kumar was his uncle (Taya) and was at Ichhi. He further stated

.

that Archana was broad minded and her friends and office

colleagues used to visit her in her quarter. The appellant used

to take care of her like a guardian. He further deposed that

since the appellant had told her mother that Archana had gone

to appear in an interview, therefore, they suspected that he had

committed her murder.

23 Pawan, who is the uncle of the deceased, appeared

as PW5 and stated that on 13.1.2013, he had come to Ichhi and

visited the spot, which in his presence was inspected by the

police. The Police had recovered one mobile phone, charger,

greeting card, ATM card and one wrapper on which the words

"Hit" Kill the rats were inscribed. He identified the case property

besides one pillow cover and one woolen hand glove, that were

taken into possession. He further stated that Khichri, meat and

Pakora lying in the residential quarter of the deceased were

taken into possession by the police in his presence. He further

stated that on 15.1.2013, he had come to Police Station Kangra,

where the Police was enquiring from the appellant as to where

he had kept the articles. The Police had then taken him and

Khem Chand to a place on the back side of the spot and the

appellant had told that he had thrown the plastic rope there.

The appellant was then taken to the room. The appellant

.

produced one Dupatta (chunni). The room was locked at that

time and was opened by the Police. He identified the dupatta as

also plastic rope.

24 On being cross-examined, he stated that when he

reached the spot at 8.30/9.00 p.m., the mother of the deceased

and Saurav were present there and when Police reached,

Archana was dead lying dead with her face on the surface. He

stated that on 13.1.2013 he and Ram Pal visited the spot where

the appellant got recovered the articles as mentioned. He again

joined the Police on 14.1.2013 and at that time also the

appellant was not present at the Police Station. He had

accompanied the Police to the spot where the Police took into

possession Khichri, Pakora and meat in the presence of Ram

Pal. At that time, except for a telephonic call, they had no

knowledge about the involvement of the appellant in the instant

case. He further stated that on 15.1.2013, he along with Khem

Chand again visited Police Station at 10.00 am. He admitted

that blood stains were not visible on the pillow cover Ex.P-6. He

however admitted that the appellant had not made any

disclosure statement.

25 Khem Singh, witness of recovery of rope and dupatta

was examined as PW6, who stated that the appellant in their

.

presence told to police that he had knowledge of rope and

dupatta and thereafter got the same recovered. However, in his

cross-examination, he admitted that even though the deceased

was not related to him, but Pawan was his friend and he had

visited the police station at the insistence of PW5 Pawan.

26 Nishant, who is stated to have stated at night

10.1.2013 with the deceased in her residential quarter at Ichhi,

the night before her alleged murder, was examined as PW7. He

stated that was working as operation supporting engineer with

Reliance Communications Ltd at Hamirpur. Archana was

known to him for about 2 months prior to her death. He had

only business terms with Archana as she was working in his

office at Ichhi. She had given him her personal mobile number.

He once had visited her at Dharamshala. On 10.1.2013

Archana had invited him to Ichhi in her room and he stayed

there for a night with her. During his stay, they enjoyed sex. In

the morning, Saurav and the appellant came to the room of the

deceased and had their breakfast there and thereafter Archana

left for her office while he, Saurav and the appellant remained in

the room. At noon, Archana came to her room and they all had

lunch. After lunch, he left for Hamirpur, whereas Archana,

appellant and Saurav remained there. On the same evening, he

.

telephonically informed Archana that he had reached Hamirpur.

Thereafter, he had no communication with her. Archana had

told him that the appellant was her ex-boyfriend. At this stage,

the learned Public Prosecutor got declared the witness hostile

and was permitted to be examined. In cross-examination

conducted by the learned Public Prosecutor, he stated that he

had not stated to the Police that the appellant had asked him to

persuade Archana to marry him and he replied to him that

Archana was not interested in him, rather she was interested in

him (witness). He further denied that the appellant had become

annoyed and nervous. He denied that he had made any

statement to the Police that on 11.1.2013 during the night when

he telephonically contacted Archana, she told him that she had

taken meals, whereas the appellant was not taking meals and

thereafter he telephonically asked the appellant as to why he

was present there and the appellant replied that after taking

meals he would leave the room. He further denied having made

a statement to the police that at 8.30 p.m., he again gave a

telephonic call to Archana, who had not attended the call and

then he contacted the appellant on his mobile phone, who

replied that he was in his room and that Archana was sleeping

in her room. He also denied having made a statement to the

.

police that at 11 p.m. he again telephonically contacted

Archana, but the call was not attended. He further denied

having made any statement to the police that on 12.1.2013, he

wished the mother of Archana on the eve of Lohri and also

informed her that Archana was not attending his calls. He

further denied that he had made any statement to the police

that on 13.1.2013, the mother of Archana had told him that

Archana had died. He also denied the suggestion that the

appellant had strangulated Archana as he wanted to marry her.

He also denied the suggestion that Archana was not interested

in marrying him therefore, the appellant had killed her.

27 PW8, Jeewan Kumar, claims to have associated with

the police. He stated that on 13.1.2013, he had visited the spot

along with police, where photographs of the dead body were

taken by the police. He further stated that the police prepared

the inquest report in his presence. Rest of his testimony is

based on hearsay and is not relevant.

28 PW9 Rampal is the owner of the premises, where

Archana had been residing as tenant. He stated that on seeing

the dead body of Archana, he had gone to Police Post Gaggal to

report the matter and the police had taken the sample of

eatables in possession and sealed the same. However, he

.

identified these samples but did not disclose anything else by

stating that nothing was done in his presence and was declared

hostile. On being cross-examined by the learned Public

Prosecutor, he denied the suggestion that the scene of crime

was photographed in his presence. On being cross-examined by

the learned defence counsel for the appellant, he stated that the

mother, aunt and cousin of the deceased had reached the room

at about 9.30 P.M.. He deposed that he had seen the appellant

in the court for the first time after the date of the incident and

had not seen him during the intervening period. He further

deposed that colleagues of the deceased used to visit her and

that Saurav had been frequenting her once in a month.

29 Suman Devi, another tenant of PW9 Ram Pal was

examined as PW10. She deposed that she had been serving in

Reliance Company and she was known to the deceased for the

last about 2 ½ years. On 10.1.2013, the mother, aunt and

cousin of the deceased had visited her room and enquired about

the whereabouts of the deceased, whereupon she informed that

she had no knowledge of the deceased. They waited for 1-2

hours. She left the place as her child was of tender age and later

on she heard noise of weeping and found out that Archana was

no more. She further stated that the appellant had been visiting

.

the deceased often.

30 On being cross-examined by the learned defence

counsel for the appellant, she stated that their locality was

thickly habituated and shops were also there. She further

stated that she did not notice the appellant on 10.1.2013 or

11.1.2013 at Ichhi.

31 PW11 Manoj Kumar claims to have known the

appellant and the deceased and stated that he had been

working as an Area Sales Manager based at Kangra, where the

appellant was also working. He used to stay with the appellant.

One Peer Mohamed also used to stay with the appellant before

the incident. He further deposed that Archana Mahajan was

also working in the same company, but was posted at Ichhi. The

appellant disclosed that Archana Mahajan was his fiancé. On

12.1.2013, before noon, he received a telephone of one Rakesh,

who disclosed that they had to go to the room of the appellant

because he had not been picking up the phone and there could

be some problem there. He then went alone to the quarter of the

appellant at Purana Mataur and found Anish, Vipin, Rakesh

and Anil there. The appellant was found in a drunken condition

and was also smoking heavily and smoke was coming out from

his room. Thereafter, he demanded food, which they arranged

.

from outside and at that time he was not in a position to stand

independently. In the meantime, Rakesh received a telephone

call from the mother of the appellant and thereafter he also

talked with her on the telephone and she told them to take care

of him till they reached his room. After 10 minutes, again they

received telephone calls from her mother, who requested to

bring him to Hamirpur. He along with Anil took him to

Hamirpur in vehicle bearing No. HP-40A-6030 and after that, he

came back. On the next morning, Distributor namely Narinder

Sharma had contacted him on telephone and disclosed that

Archana Mahajan was no more. He went to the office of the

Distributor and he came to know this fact from the newspaper.

On the next day, he remained associated with the investigating

agency. On 12.1.2013 when they went to the room of the

appellant before taking him to Hamirpur, they had changed his

clothes and from the clothes which he was wearing one letter

Ex. PW11/A was recovered by Rakesh from the pocket of paints

of the appellant. During the Investigation, he had seen the

photographs of the dead body of Archana Mahajan, from which,

he could not conclude that she had been killed by someone.

32 On being cross-examined, he stated that he knew

Archana from the time when he and the appellant were

.

roommates. He admitted that Archana used to visit the room of

the appellant when we were roommates. He voluntarily stated

that it was the reason of his leaving the room of the appellant.

He stated that he never visited the room of Archana and did not

know that some colleagues of Archana like one Rohit used to

visit her room. He further deposed that he was not on talking

terms with Archana. He denied the suggestion that the

appellant was disturbed as he was having fever and having

effects of epilepsy. He further denied that the appellant used to

take tablet alprex. He further stated that when they were going

to Hamirpur, the appellant was sitting beside him and he was

getting repeated telephonic calls, but he was not picking up the

same. He then requested the appellant to pick up the phone as

he was getting disturbed while driving. The appellant had told

him that the mother of Archana was calling to know

whereabouts of Archana, whereas Archana had gone for an

Interview.

33 PW12, Anish Kumar is another employee of Reliance

Communication, who stated that he along with Manoj, Anil,

Rakesh, Vipin and the appellant were working in the aforesaid

company. On 12.1.2013, one telephonic call was received from

Rakesh at about 9.15/9.30 a.m., who disclosed that he had

.

received the telephone call from the mother of the appellant, he

was not picking up the phone and that he should go to the

appellant to see why he was not picking up the phone.

Thereafter, he made a telephonic call to Anil regarding the

aforesaid matter and later on he along with Anil went to the

room of the appellant at Purana Mataur, where they found the

door to be locked from the inside and at that point of time,

Rakesh also came there and they entered the room from the

other door. They saw that the appellant was lying on the floor as

there was no bed inside the room. Rakesh inquired the matter

why he was not picking up the phone, but he could not answer

as he was in a drunkard condition. When Rakesh asked him

again then he told that he had consumed beer at night and had

not taken food from night. Then, at the request of Rakesh, he

went to Gaggal to get food for him. The appellant had taken food

and by that time Vipin and Manoj also came there. Rakesh

received a telephonic call from the mother of the appellant and

thereafter Manoj also talked to his mother. When the facts were

disclosed to the mother of the appellant, she requested Manoj to

bring him to Hamirpur. Rakesh had changed the clothes of the

appellant and found one letter from his clothes, Ex. PW11/A, on

which it was written that the appellant loved Archana and one

.

another Nishant had come in between them. Thereafter Anil and

Manoj went to leave him at Hamirpur and on the same day,

they came to Kangra. Letter Ex. PW11/A was handed over to

the police, which was taken into possession by the police vide

seizure memo Ex. PW12/B. On the next day i.e. 13.1.2013 they

came to know from the office that Archana had expired. He

further deposed that the appellant used to tell them that

Archana was his fiancé and he would get married to her. He

further deposed that the appellant used to proclaim that if

Archana did not belong to him then she would not belong to

anyone else.

34 On his cross-examination, he deposed that he had

known Archana since he joined the office and came to know

about the appellant. Vipin and Anil were also aware of the

proclamation made by the appellant to the effect that he would

now let Archana belong to anyone else. Archana never told him

that she was engaged to the appellant and they were getting

married. He never told Archana that the appellant had been

maligning her image by saying that she was his fiancé and she

would get married to him. He further deposed that the appellant

had never misbehaved or treated Archana badly in his presence.

.

35 Rakesh Kumar, another employee of Reliance

Company appeared as PW13 and stated that 4-5 days prior to

the occurrence, the appellant had not made payment of

collection done by him, therefore, he was terminated by the

company. At that time, the appellant used to reside at Ichhi. He

had also visited his quarter 2-3 times. On 12.1.2013 he received

a telephonic call from the mother of the appellant that he was

not picking up the phone, upon which he requested his

colleagues Anish and Anil, who were residing near Kangra to go

to the appellant and check whether there was any problem to

the appellant. Rest of the statement is based on hearsay except

that at about 11.00/11.15 a.m. he again received a telephonic

call from the mother of the appellant-appellant, who told that in

case the appellant was not feeling well, then he should make

some arrangement to send him to house and would also bear

traveling expenses. He got changed the clothes of appellant and

had found one letter Ex. PW11/A from the pocket of his pants

which he was wearing. He had gone through the contents of Ex.

PW11/A, in which he had written that he loved 'Archana' he did

not remember the rest of the contents of Ex. PW11/A. He

further deposed that the appellant did not tell him regarding

any dispute between him and Archana. He did not have any

.

knowledge or suspicion who had killed Archana. At this stage,

he was declared hostile and cross-examined by the learned

Public Prosecutor and stated that he had gone through the

contents of the whole of the letter Ex. PW11/A and voluntarily

stated that they had procured a photocopy of the same.

36 PW14, Jagdish Chand, landlord of the appellant has

been examined to prove tenancy of the appellant and stated that

on 11.2.2013 at 3.00/4.00 P.M., the appellant had come

through the main gate to his room. He enquired from him about

his health but was not feeling well and wanted to take rest. He

deposed that on 12.1.2013, he had gone somewhere to have a

meal, as he had been invited by someone. At about 8.00/9.00

P.M., he received a telephonic call on his mobile from Kangra

police and disclosed that they wanted to search his house and

the main gate was locked from outside and informed that the

appellant had killed somebody and in this regard, they had to

search his room. During the search, the police recovered two

photographs, Ext. PW14/A and Ext. PW14/B. He had told the

police that the girl appearing in the photographs wearing red

Duptta was Archana, which was told to him by Manoj and

Rakesh that she was the fiancé of the appellant.

.

37 On being cross-examined, the witness stated that he

had never seen the appellant taking liquor or any intoxication or

in drunkard condition nor had anybody complained against

him. He further stated that the appellant had come home on

11.1.2013 and he did not see him leaving the room till the next

day. He admitted that on 12.1.2013, two-three friends of the

appellant had taken him from the room to his house as he was

not well. He feigned ignorance as to whether Archana had come

to the room to meet the other boys other than the appellant. He

voluntarily stated that she used to be mostly with the appellant.

38 PW15, Ashwani Kumar is Ward Panch, has proved

recovery of two photographs, Ext. PW14/A and Ext. PW14/B.

39 PW16 Rajnish Shridhar, was posted as Area

Manager in Reliance Communication Kangra and Chamba and

stated that the deceased used to reside in the vicinity of the

office. As per his opinion, she had worked till 6.00 P.M. on

11.1.2013, whereas she had not turned up to the office on

12.1.2013. He further deposed that they had tried to contact

her telephonically, but she was not picking up the phone and

on receipt of a telephonic call from the mother of the deceased,

he sent one Inderjeet to inquire about the whereabouts of the

deceased, who after visiting room of the deceased, informed that

.

room of the deceased was found locked from outside. He also

told that he inquired about the whereabouts of Archana, but

nobody had told him about his whereabouts. On 13.1.2013, he

came to know that Archana was no more and had been

murdered and it was through the newspaper that he learnt that

the appellant had committed the murder of Archana. On being

cross-examined by the learned defence counsel, he stated that

had not seen the appellant coming to his office to meet Archana.

40 PW17 Inderjeet is the office boy, who was sent by

PW16 to the house of Archana and he stated so in his

examination-in-chief.

41 PW18, Rita Khanna is the mother of Nishan Khanna,

PW7 and stated that she did not know Archana and only learnt

from the newspaper that one Archana, who was a colleague of

her son had been murdered. On being cross-examined by the

learned, she admitted that her son had gone to Chandigarh to

appear in some test and reached back home on 11.1.2013 at

about 6.15 P.M. She feigned ignorance when her son had

reached, he had got a call from Archana and she had also

talked to her. She admitted that on the next day, her son had

joined the duties. She admitted that she was informed by her

son on the evening of 13.1.2013 that Archana had been

.

murdered.

42 PW19 Rakesh Kumar is the brother of the appellant,

who has not supported the story of the prosecution except

identifying signature over memo, Ext. PW19/A. He denied that

he had given any diaries of the appellant to the police.

43 PW20 Geeta Devi is also a witness to the recovery

memo, Ext.PW19/A and has not supported the prosecution

story except admitting her signatures on the recovery memo,

Ext.PW19/A.

44 PW21 Rajinder Kumar has only tried to prove that

his SIM was being used by the appellant.

45 PW22, Dr. Susheel Sharma, conducted post post-

mortem of the deceased and was re-examined on 3.7.2015 and

stated that he had handed over the gauze of the deceased and

sealed it in an envelope, Ext. PX with the seals of RPGMC Tanda

and handed over the same to the police.

46 PW23, Dr.Minaskshi Mahajan, proved on record

writing on questioned documents, Ext. PW11/A to be written by

the same person, however in cross-examination, she admitted

that she was not having any specific degree or diploma in

forensic science. She stated that she was recruited to the post of

Assistant Director, Documents and Photographic Division in the

.

year 2000 as per recruitment and promotion rules. She further

admitted that she had not given any observations on the fact

that the same pen was used on questions, specimen and

admitted documents as the investigating agency had not asked

for the same. She further stated that she had not determined

the age of the writing only on the ground that same had not

been sought by the Investigating Officer.

47 PW24 Rajesh Kumar, Assistant Director, Physics

and Ballistics, RFSL Mandi proved the lock and key, Ext. P4

and Ext. P5 to be the same that were taken into possession by

the police.

48 PW25 Gurdarshan Gupta, deposed that Stated on

the application of the police dated 14.1.2013, he had medically

examined the appellant, who was brought injured with the

alleged history of sustaining injuries during fall last Saturday.

On examination following Injuries were noted:-

1) Abrasions over poster late aspect of right elbow 1.5 X 1.5 cm. in size irregular shaped, brownish in colour.

2) Partially healed lacerated wound over forehead right side obliquely placed. Margins ragged, brownish scab present.

3) Contusion over right zygomatic area 1 X 1.5 Inches in size, bluish in colour.

These injuries were found to be simple in nature and the

.

probable duration of injuries was more than 24 hours,

caused by blunt weapon. He issued MLC Ex. PW25/B. He further stated that these Injuries were possible if a person assault another person and other person resists that

assault and in a scuffle by fall.

49 On being cross-examined, he denied the suggestion

that if a person consumes a tablet of diazepam or alprax in the

evening and if he resisted being forcibly taken to hospital, these

injuries could be caused. He voluntarily stated that these

tablets did not have the impact of drowsiness till morning.

50 PW26 Dr. Arvind Kumar Sharma, stated that on

18.1.2013, he on the application of the police had taken the

blood sample of the appellant on the FTA Card and sealed the

same with seal impression of 'CH' Kangra and then handed over

the same to SHO Mohinder Singh Minhas. He proved

identification Form Ex.PW26/B that was written and signed by

him.

51 PW27 HHC Harbans Singh proved on record FIR,

Ext. PW27/A that was registered based on the statement made

by the father of the deceased.

52 PW28 HHC Arjun proved on record handing over of 4

parcels containing blood slides, vagina swabs, etc. vide R.C. No.

.

19/13, Ext. PW28/A by MHC Sampooran Singh on 28.1.2013

along with sample seals and envelope, which he deposited at

FSL Junga and then on 29.1.2013 handed over the receipt to

MHC.

53 PW29 HHC Onkar Chand has proved on record

handing over of 9 parcels by MHC Sampooran Singh on

28.1.2013 that were deposited by him at RFSL Dharamshala,

but was told that the parcel containing key and lock were to be

deposited at RFSL Mandi and thereafter he had taken back the

parcel and on the same day i.e. 30.1.2013 deposited 7 parcels

along with sample seals and docket at RFSL Dharamshala. After

depositing the parcels, he had handed over the receipts to MHC.

On 2.2.2013, MHC Sampooran Singh had handed over to him

two parcels containing lock and key which were deposited by

him at RFSL Mandi and thereafter handed over the receipt to

MHC.

54 PW30 HC Sampooran Singh was MHC at the

relevant time, who proved on record the case property that was

deposited with him and thereafter sent the same to concerned

laboratories and receipt thereof deposited with him and since

there is no cross-examination, his testimony need not be

discussed in detail.

.

55 PW31 Sanjay Kumar deposed that he knew the

appellant as he had employed the appellant to look after the

whole work of the office regarding pre and post-paid SIMs. In

cross-examination, he stated that the appellant used to do work

of filling form for SIMs.

56 PW32 Mangat Ram was examined to prove that he

had never taken SIM No.9817220823 and that his SIM had

never gone missing and stolen.

57 ASI Santosh Raj appeared as PW33 and stated that

on 24.1.2013, records had been handed over to him for further

investigation and that he had produced the appellant before the

JMIC-II Palampur and obtained his specimen signatures and

handwritings, which were obtained before the aforesaid

Magistrate vide Ext. P5 to Ext.P20.

58 PW34 Constable Gulshan Minhas, has proved on

record receipt of one envelope from MHC Sampooran Singh on

5.2.2013 along with sample seals and docket, which were

deposited by him at RFSL Dharamshala and thereafter handed

over the receipt thereof to MHC.

59 PW35 HHC Ujagar Singh, is the witness, who

handed over the post-mortem report, Ext. PW22/A along with

.

seven parcels bearing seals of RPGMC Tanda along with sample

seal to MHC.

60 PW36 Shiva Malhotra, deposed that he was running

a Photo Studio for the last 10 years being a photographer. SHO,

Police Station Kangra, had given him a memory card from which

he developed photographs, Ext. PW36/A1 to Ext. PW36/A54

and prepared CD Ext. PW36/B and Ext. PW36/C and handed

over the same to SHO.

61 PW37, Dr. Neeti Prakash Dubey, deposed that he

two seals parcels that were received by the laboratory in

February 2013. Parcel No.1 was a cloth packet (cardboard box)

bearing eight seals of impression 'ssq. Parcel No.2 was a cloth

packet bearing three seals of impression 'R'. Seals were intact

and tallied with the specimen seals. Parcel No. 1 contained four

exhibits each bearing one seal of impression 'ssq'. Exhibit No.1

plastic jar was stated to be containing parts of stomach and

small intestine with contents marked as P/1-1, Exhibit No.2

plastic jar containing parts of liver, spleen and kidney marked

as P/1-2, Exhibit No.3 plastic tube containing blood marked as

P/1-3, Exhibit No.4 plastic tube containing preservative marked

as P/1-4 and Parcel No.2 containing three exhibits. Exhibit No.1

polythene packet was stated to be containing cooked rice

.

marked as P/2-1, Exhibit No.2 polythene packet containing

cooked mutton was Marked as P/2-2, Exhibit No.3 mala

polythene packet containing Pakorey Marked as P/2-3. He

examined the parcels/exhibits physically/chemically and

bromadiolone (anticoagulant rodenticide) was detected in the

contents of parcels/exhibits P/1-1, P/1-2, P/1-3, P/2-1 and

P/2-3, but the same could not be detected in contents of

exhibits P/1-4 and P/2-2. Accordingly, he issued report Ex. PX.

The bromadiolone present in the cooked rice etc. was a sort of

pesticide which was used to kill rats and the same was easily

available in the market.

62 On being cross-examined, he admitted that if a

poison is put in an uncooked material and it is cooked, then the

poisonous effect of some of the poison is negated except metallic

poison and pesticide. He admitted that the quantity of poison

found in the cooked food had not been mentioned in the report.

He admitted that that he had given the report regarding the

cooked food only, but voluntarily stated that poison was

detected in the viscera of the body of the deceased. He however

denied the suggestion that the poison for killing rats is not toxic

enough to kill a human being and voluntarily stated that it is

highly toxic. He denied the suggestion that the type of poison

.

found in the viscera of the deceased was not the same that was

detected in the cooked food. He further denied that the poison

was neither detected in the viscera nor in the cooked food. He

lastly denied that his report was not based on scientific

reasoning but was based on his personal observation.

    63          PW38, Dr. Surender Kumar Pal was posted as

    Assistant   Director
                    r       Biology      and    Serology       Division,       RFSL

Dharamshala. He had examined five parcels that were sent to

Biology and Serology Division and based on examination, the

result was as under:-

Human blood of group 'A; was detected on exhibit-2a (pillow cover), exhibit 2b (cloth piece), and exhibit -8d(T- shirt/top, Archana Mahajan). Semen could not be

detected on the exhibits.

Blood was detected in traces on exhibit-2c (glove),

exhibit-4 (rope piece), exhibit-9 (belongings, Archana Mahajan) and exhibit-8b (lower/pajama, Archana

Mahajan), but it was insufficient for serological examinations. Semen could not be detected on the exhibits.

Human blood of group 'A' was detected on exhibit-Bc (underwear, Archna Mahajan). Human semen was detected on the exhibit.

Human blood of group 'A' was detected in exhibit- 7(blood sample, Archna Mahajan).

Blood and semen could not be detected on exhibit-5

.

(dupatta, Archna Mahajan), exhibit 8-a (vest, Archna

Mahajan), exhibit 8e (bra, Archna Mahajan), exhibit 8-f (shawl, Archna Mahajan) and exhibit 8-g (socks, Archna Mahajan).

Hairs found in exhibit-9 (belongings, Archna Mahajan) were identified as human head hairs.

The rope found in exhibit-4 and dupatta in exhibit-5

were strong enough for strangulation. He accordingly issued report, Ext. P38/A.

In cross-examination, he admitted that blood group

mentioned at Sr. No.1 could not be individualized. He

volunteered that the blood group of Archana Mahajan was

found on clothes, pillow cover and underwear. He admitted that

the blood group mentioned at Sr. No.4 could not be

individualized. He admitted that he had not conducted DNA test

to confirm that the blood sample sent by the police was that of

Archana only, but voluntarily stated that he had only conducted

serological examination to confirm it.

65 PW39, Dr. Tushar Sontakke has proved the

treatment given to the appellant when he was admitted on

26.12.2012 at 5 A.M. with the alleged history of consumption of

10 tablets of alprazolam of 0.25 mg, per tablet.

66 PW40 ASI Mehar Singh proved two diaries, Ext.

PWPA1 and Ext. PW23/C that were taken into possession vide

.

seizure memo, Ext. PW19/A.

67 PW41 Madan Lal Sharma is Assistant Nodal Officer

in Reliance Communication. He deposed that in January, 2013

an information was sought by SP Kangra regarding the call

detail record of cell phones No. 93180-11555 (appellant),

93181-36555(deceased) and 98172-20823 (Nishant) regarding

some correspondence between SLEAC operation and SP Kangra

was made. He had made endorsements on letters Ex.PW-41/A

and Ex.PW-41/B. The call detail record pertaining to the above

mentioned phone numbers with effect from 01.12.2012 to

16.01.2013 were taken through computer generated system

totaling 794 pages. A certificate Ex.PW-41/D was issued by him

in this regard.

68 On being cross-examined, witness stated cell phone

No. 93180-11555 belonged to Mr. Rajinder Kumar S/o Sh.

Bhandari Ram R/o Vill. Kuthera, P.O. Jalari, Teh. Naduan,

Distt. Hamirpur, Cell phone No. 93818-36555 belonged to Sh.

Sanjay Kumar S/o Sh. Roshan Lal R/o Bara Tikka Dhagdu,

Block No. 105, Teh. Bangana, Distt. Una and cell phone No.

98172-20823 belonged to Mangat Ram R/o Sub. Teh. Kotli,

Distt. Mandi. He admitted that cell phone No. 93180-11555 was

a postpaid number. He could not state that when a post-paid

.

number is allotted, proper verification of the identity of that

person is done. He voluntarily stated that it pertained to some

other department and did not pertain to his work. He could not

state that there had been conversation between Sanjay Kumar,

Mangat Ram and Rajinder Kumar. He voluntarily stated that he

could only supply information regarding the phone numbers

from which the calls had been received by the other numbers.

69 PW42, Dy.SP Mohinder Singh Minhas, is the

Investigating Officer, who narrated the entire prosecution story

and the same therefore is not being reiterated.

70 On being cross-examined, he stated that the police

station Kangra was informed about the incident by the police

officials at Police Post Gaggal and then they had reached the

spot and on receiving the information they had also reached the

spot. He admitted that when he reached the spot the police from

Police Post Gaggal was already present there. he admitted that

Naval Bharti and Madan Lal had not been made witnesses in

this case. He voluntarily stated that Sandeep had been made

witness in this case. He admitted that the name of Sandeep was

not mentioned in the list of witnesses. He admitted that LHC

Raksha Devi, who had seen the dead body first had not been

made witness. He deposed that on 13.1.2013, he started from

.

the police station at about 12.30 p.m. and reached the spot

within 20 minutes. He admitted that when he reached the spot

the mother, aunt(Massi), cousin brother Sourabh of the

deceased and owner of the house were present on the spot, but

only the mother was inside the room. The mother of the

deceased had informed that they had reached Ichhi in the

evening on 12.1.2013. He denied the suggestion that no RFSL

Team was called on the spot during the entire investigation. He

voluntarily stated that Dr. Arun Sharma had visited the spot

and had instructed them. He admitted that he had not been

made a witness in this case. He denied that neither Arun

Sharma had come to the spot nor had inspected the spot. He

admitted that the police team did not take any fingerprints from

the door, window, Almirah and table from the spot. He

voluntarily stated that they did not find any fingerprints. He

admitted that on the intervening night of 12/13.1.2013 at 12.30

a.m. when the the police party reached the spot, he did not

record the statement of the mother, aunt (Massi) and cousin

brother of the deceased on the spot at that time. He voluntarily

stated that he first carried out the proceedings of the

investigation. He denied that he did not record the statement of

the above witnesses as they did not have suspicion on anyone.

.

He voluntarily stated that he had asked about the incident from

the mother of the deceased, on the basis thereof, he had made

relevant entries in Form No. 25-35 on reaching the spot at

about 1.00 a.m. He denied that the case was registered against

the appellant after a lapse of about 15 hours. He denied the

suggestion that the police team had not sealed the place of

crime when the dead body was taken for postmortem. They took

about 2 to 2½ hours to complete the proceedings of the

investigation on the spot. He admitted that during that 2 to 2½

hours, no food or any articles lying on the spot were taken into

possession. He voluntarily stated that they had sealed the place

of occurrence. He denied there was no mention of any person

being left on the spot when they proceeded for post-mortem of

dead body of the deceased in the entire case file. He voluntarily

stated that they had left H.C. Desh Raj, Constable Nawal

Kishore and HHC Madan Lal of Police Post Gaggal on the spot.

He admitted that all these police officials had not been made

witnesses in this case. He voluntarily stated that they had not

done any proceedings in this case, therefore, they were not

made witnesses. He denied that neither none of the above

witnesses were present on the spot nor they had protected the

scene of the crime. He admitted that the rented accommodation,

.

which was a place of occurrence, was on the national High Way,

which goes to Mandi-Dharamshala- Pathankot and there was

rush of vehicles 24 hours including night. He admitted that the

owner lives in that building along with other tenants. He denied

that no one had seen the appellant near the place of occurrence

on 11.1.2013 after lunch and on 12.1.2013. He voluntarily

stated that the owner Ram Pal had seen the appellant on the

evening of 11.1.2013. He stated that it had not come in his

investigation that a boy named Rohit had an affair with the

deceased and he used to criminally intimidate the deceased and

that he had not interrogated him. He was not in a position to

state that on 12.1.2013, PW-4 Saurabh had a telephonic talk

with PW2 Surendera Kumari, mother of the deceased. He

voluntarily stated that Saurabh had gone home during that

time. He denied that it had come in his investigation that the

deceased had any interview at Dharamshala. He voluntarily

stated that the mother of the deceased Surendera had disclosed

that the appellant had told her that her daughter had gone for

an interview, then her daughter had not picked up her phone

and she had called the appellant. He denied that the deceased

had any interview at Dharamshala that is why he did not

investigate regarding any interview of the deceased at

.

Dharamshala on 12.01.2013. He admitted that the statement of

the complainant was not recorded on the spot. He voluntarily

stated that the statement was recorded after the post-mortem of

the deceased, however, he did not remember the time. He

admitted that he had not collected ATM card, one wrapper and

mobile charger immediately upon reaching the spot. He

voluntarily stated that the spot was sealed and the above

articles were collected after registration of an FIR. He denied the

suggestion that later on ATM card, one wrapper, mobile charger

were falsely fabricated against the appellant to implicate him

and the memo Ex.PW-4/A was falsely prepared subsequently.

He admitted that PW5 Pawan Kumar uncle (chacha) of the

deceased was also a witness in memo Ex.PW14/A. He did not

know that PW-6 Khem Singh was a friend of Pawan Kumar. He

voluntarily stated that Khem Singh was Pardhan of Gram

Panchayat Dulara, District Chamba. He was not in a position to

tell how many times the appellant was interrogated after his

arrest till 15.01.2013. He admitted that police station Kangra

where the disclosure statement was made allegedly by the

appellant is in the heart of Kangra city where the Judicial

Complex and office of the Tehsildar were nearby. He admitted

that except for Khem Singh and Pawan Kumar no independent

.

witness from the locality was involved during the disclosure

statement. He voluntarily stated that when he was interrogating

the appellant, these witnesses had come to the police station to

know about the case. He denied that the disclosure statement

Ex.PW-42/H was the result of third-degree method of

interrogation. He denied that the place from where the alleged

recovery of rope was effected was an open area that was

accessible to the general public. He voluntarily stated that on

the demarcation of the appellant, recovery of rope was effected

under bushes on one side. He admitted that the place where the

recovery was effected was near the national highway. He

admitted that anyone could come on the national highway. He

voluntarily stated that the bushes from where the recovery was

made were not accessible. He denied that no effective recovery

was effected on the demarcation of the appellant and later on

the rope was falsely implanted against the appellant. He also

denied that neither the appellant had given any disclosure

statement nor any recovery had been effected on the disclosure.

He denied that no dupatta and key were recovered from an

almirah near the window of his house at the instance of the

appellant on his disclosure and demarcation. He denied that

dupatta and key were later falsely implanted against the

.

appellant. He denied that Nishant was having physical relation

with the deceased. He voluntarily stated that Nishant wanted to

marry the deceased. He admitted that the utensils in the house

of the deceased were not sent to RFSL for examination. He

denied that the deceased was a girl with a modern outlook and

generally had friendship with many boys. He denied that the

appellant did not have any dispute with the deceased. He

voluntarily stated that they had some dispute between them as

earlier they had an affair. He admitted that he had not taken

blood sample of Nishant for DNA profiling. He denied that at the

instance of father of the Nishant, he had not interrogated him in

this case. He had handed over the case file to PW-14 ASI Mehar

Singh approximately 3-4 times mostly for going to Hamirpur

regarding the investigation. He admitted that the blood sample

and the vaginal swabs were not sealed on the spot. He

voluntarily stated stated that the Doctor had sealed them and

handed it over to the police.He admitted that he had not

obtained any certificate under section 65 of the Indian Evidence

Act from the person who had developed the photographs and

CD from a computer. He admitted that no recovery was made

from the house of the appellant from 13.1.2013 till 16.1.2013.

He voluntarily stated that on 16.1.2013, they had made

.

recovery of photographs from the rented accommodation of the

appellant appellant. He denied that he had recorded the

statement of Jeevan Kumar, Pawan Kumar, Naresh and

Harbans of his own just to facilitate the case of the prosecution.

He denied that all the above witnesses were the relatives of the

deceased. He further denied that note Ex.PW- 11/A was not

presented by witness Rakesh to the police allegedly written by

the appellant and memo Ex.PW-42/G was falsely prepared

against the appellant. He denied that it was prepared in the

presence of Vipin Kumar and Ashish Kumar. He denied that

Ram Pal and Pawan Kumar were made witness later on in

seizure memo Ex.PW-9/A to falsely implicate the appellant. He

denied that Pawan Kumar and Khem Singh were made

witnesses later on and disclosure and recovery memos were

falsely made later on to implicate the appellant. He also denied

that the procedure of making seizure memo, spot map and

recording the statements of the witnesses was done later on. He

denied that on 16.1.2013 nothing had been recovered in

presence of witnesses Jagdish Chand from the rented

accommodation of the apellant and memo in this regard,

Ex.PW-14/C, was falsely prepared. He denied that at the time of

obtaining opinion alleged duppata and rope were not shown to

.

Dr. Sushil Sharma. He also denied that the diaries Ex.PA1,

Ex.PA23/C and birthday greeting card Ex.PW-23/A did not

belong to the appellant and later on were planted against the

him. He denied that the appellant was not involved in this case

and simply on the basis of suspicion he had been falsely

implicated. He denied that statements of witnesses were

recorded falsely to facilitate the case of the prosecution. He also

denied that he did not conduct a fair investigation in this case

and that the present FIR was a result of afterthought,

deliberation and consultation with the family of the deceased.

He denied that he was deposing falsely being a police official.

71 PW-43 Dr. Vivek Sehajpal, Assistant Director, DNA

Reports, SFSL Junga stated that four sealed parcels were

received in his Division. Three parcels were sealed with seal

impression of 'RPGMC Tanda' and one parcel was sealed with

seal of 'CH Kangra'. Parcel-1 was containing exhibit-1 sealed

with seal of 'RPGMC' Tanda. On opening the parcel, it was

containing exhibit-1, having five nail clips packed inside a small

plastic container. Parcel-2 was containing two sealed tubes,

each bearing one seal of 'RPGMC Tanda'. Parcel containing

exhibit-2, was having two cotton wool swabs kept inside the

tubes, stated to be vaginal swab. The third parcel was again

.

sealed with five seals of 'RPGMC Tanda'. The parcel was

containing exhibit-3, stated to be one cloth piece bearing a faint

brownish stain and blood sample of deceased on gauze. The

fourth parcel was sealed with three seals of 'CH Kangra', which

contained exhibit-4, having one FTA card bearing brownish

stain. The exhibit was stated to be blood sample of the appellant

on FTA card. DNA isolation was carried out from aforesaid

exhibit through Organic Method, Differential extraction method

and FTA protocol. DNA isolation from Exhibit- 2(vaginal swab)

was carried out through differential extraction method to

separate out the male and female DNA fractions. The isolated

DNA was checked for quality and quantity by 0.8% agarose gel

electrophoresis and ethidium bromide staining. The DNA was

subjected to Multiplex PCR for co-amplification of 15 STR loci

and Amelogenin Identifier Plus PCR Amplification Kit. The

amplified product alongwith controls was run on automated

DNA sequencer. A DNA profile laws prepared and analysis was

carried out using Gene Mapper ID Software. He accordingly

issued report Ex. PW-43/A, with the following conclusions:-

1) The DNA profile obtained from exhibit-1 containing nail clips is consistent with the DNA profile obtained from exhibit-3, blood sample of gauge of victim.

.

2) The DNA profile obtained from male DNA fraction of

exhibit-2 Vaginal Swab matches completely with DNA profile obtained from exhibit-4, which is blood samples of FTA card of Chandresh Sharma.

72 As per his conclusions as regards exhibit-2 and

exhibit- 4 DNA of the appellant was found in the vaginal swab of

the deceased, which was suggestive of the fact that there was

sexual intercourse between the appellant and the deceased.

73 In cross-examination, he admitted that he had not

mentioned about the fact of sexual intercourse because it was

not in the purview of his observation, which was actually to be

given by the Medical Expert.

74 PW22 Dr. Sushil Sharma was re-examined on

29.5.2017 and stated that on on 13.1.2013, after postmortem,

he had handed over sealed parcels to the Police containing

viscera, blood in gauze, nail clips, two vaginal swabs, wearing

clothes and parcels regarding belongings of the deceased. The

police had taken opinion from him with respect to viscera

report, but the police had never obtained opinion with respect to

opinion of vaginal swabs, nail clips etc. As per report Ex. PW-

43/A, there was possibility of sexual intercourse with the

deceased as the DNA profile obtained from DNA fraction of Ex. 2

(Vaginal swabs) matched completely with DNA profile obtained

.

from Ex.4 i.e. blood samples on FTA Card of the appellant as

per the report of RFSL.

75 On being cross-examined, he denied the suggestion

that from the postmortem report Ex. PW-22/B, there was

nothing to suggest that the deceased was subjected to forcibly

sexual intercourse. He admitted that as per the postmortem

report Ex. PW-22/B, there was no other external injury present

on the body of the deceased except neck. He however denied

that he had handed over the samples of vaginal swabs and nail

clips etc. directly to the police. He voluntarily stated that the

samples were first sealed and then handed over to the police.

Lastly, he denied that his opinion was not based on scientific

reasoning.

76 The appellant has examined three witness in his

defence.

77 DW1 Sushma, stated that she used to work in the

reliance office in Dharamshala in the year 2007-08 alongwith

deceased Archana and had worked with her for two years. She

had good relations with Archana. Archana used to live in

Dharamshala. She used to study as well as was doing the job at

the Reliance office. Archana had told her that Rohit used to

come to her room and threaten her. She once had gone to the

.

room of Archana on being called by her, where she had noticed

Archana being badly treated by Rohit, who was also sitting

there in her room and things were scattered here and there. She

had told Rohit not to manhandle Archana. She had taken

Archana to her home, but Rohit had followed her there also.

She had told Archana to tell about the behaviour of Rohit to her

parents, but she was scared of her parents, therefore, she did

not share this with her parents. Archana had told her that Rohit

used to tell her not to talk to any other person without his

permission. Archana had changed her room twice due to the

fear of Rohit, but he had searched her there also. Rohit had

threatened Archana in her presence. He had also threatened her

for helping Archana. After some time, Archana changed her

room to Kangra as she was working in the office at Kangra. She

remained in contact telephonically for some time, but after some

time, she changed her number.

78 On being cross-examined, she stated that she did

not know about the District Headquarters of Reliance in

Dharamshala. She voluntarily stated that that they were

working in a shop and were given the contact number of the

appellant to contact him in case of any emergency or difficulty.

She stated that she had not worked in Reliance company

.

anywhere outside Dharamshala. The appellant used to work in

Reliance office at Hamirpur and he used to come to their office

for imparting training etc. The appellant had come to their office

twice, when she had met him. She denied that there was no

office of reliance in Dharamshala in the year 2007. She stated

that there were two girls only i.e. she and the deceased working

in Dharamshala office. She feigned ignorance as to whether the

appellant used to like Archana and stated that she never

disclosed about him. She stated that she did not know that

Archana, Nishant and the appellant sued to meet daily. She

admitted that it was the mother of the appellant, who

approached her to state some facts in the case.

79 DW2 Rajbansh stated that he is a private civil

contractor and knew the appellant, who was his neighbour at

Purana Mataur. He had met the appellant last time on

11.1.2013 to invite him for Lohri to have food with them. On

11.1.2013, when the appellant met him he told that he was not

well and was going to his residential quarter.

80 On being cross-examined, he stated that he had not

gone to the room of the appellant to see whether he was there or

not. He admitted that he could not tell whether the appellant

had come late night that evening or not and the time when the

.

appellant had returned at night.

81 DW3 Jeevan Kumar, deposed that he was running a

'dhaba' at Ichhi. He knew the appellant because quarter of the

appellant was in front of the dhaba and often appellant used to

get food packed from the dhaba. On 11.1.2013, he had seen the

appellant going with one more person near his dhaba as at that

time, he was opening dhaba. He further deposed that some girl

used to live in that quarter. He had seen one girl and the

appellant going in front of the dhaba during lunchtime at about

02:30 PM. He did not know who was that girl. He further stated

that at about 6:30 PM, he noticed one girl going alone from the

chowk when he was in his dhaba and thereafter, he did not see

anything, and at about 09:30 PM he left for home.

82 On being cross-examined, he stated that the girl

referred to above used to live in the house of Ram Pal as a

tenant, which was nearly 50 meters away from his dhaba. He

admitted that in January it gets dark at 05:30 PM and it is not

possible to recognize the person in the dark from a distance of

50 meters. He however deposed that apart from attending to the

customers having food, he used to keep vigil on the person(s)

going on the road also. He could not tell that after 5:00 PM

whether the appellant had again gone to the quarter of that girl.

.

83 As observed above, the instant case is one of

circumstantial evidence, but we find that there are major lapses

in the prosecution case as would be evident from further

discussion.

84 The evidence reveals that the police had reached at

the spot within 20 minutes i.e. before 12.00 midnight. The

situation at the spot indicated that it was a case of homicide.

The mother of the deceased (PW2), her sister-in-law, and

nephew Saurav (PW4) were already present on the spot after

breaking open lock of the room. Once cognizable offence had

been made out, it was incumbent upon the Investigating Officer

to have recorded statements of any of the aforesaid persons

under Section 154 Cr.P.C. and thereafter registered an FIR, but

no such statement was recorded. There is no reason or

explanation given by the Investigating Officer.

85 This assumes importance because FIR in the instant

case came to be registered only on the next day at 4:00 P.M.

after more than 16 hours that too after preparing the inquest

report and conducting postmortem. The time elapsed cannot,

as rightly argued by the learned counsel for the appellant, rule

out the possibility of manipulation.

.

86 It is the case of the prosecution that when the

Investigating Officer along with his team reached the spot, three

police officials of Police Post Gaggal were already present at the

spot. It was with the assistance of Lady HC Raksha Devi that

the dead body of the deceased was examined and the

Investigating Officer proceeded to prepare the inquest report. In

the inquest report, Ext.PW42/B besides giving details of the

position of the dead body, the version as narrated by mother

(PW2) and cousin (PW4) of the deceased finds mentioned. It is

specifically mentioned that the statements of the witnesses were

also recorded, however, no such statement was placed on

record, which compels the Court to draw an adverse inference.

87 After all, whose statements were recorded and why

those were withheld and not made part of the investigation

record? Why none of these statements were not sent to the

police station as rukka for registration of an FIR?

88 In the absence of any explanation coming on record,

the only inference that can be drawn is that the statements did

not suit the investigating agency and were, therefore,

deliberately withheld from the court casting a serious doubt in

the prosecution story. Moreover, none of the aforesaid three

police officials have been examined in the case about position of

.

the place of crime, more especially, articles lying there. After

all, those police officials were the best witnesses, who could

depose about the fact situation on the spot.

89 As per the prosecution case, poison in the form of

rodenticide was found in Pulao and Pakoras lying in the room of

the deceased, but surprisingly no investigation was conducted

by the Investigating Officer to ascertain as to who had

purchased the poison, wrapper whereof was found lying in the

deceased's room. When and from which shop it was purchased

was also not ascertained. After all, Ichhi is a small village and

this fact could have been easily ascertained.

90 It needs to be remembered that in case of poisoning,

it is absolutely essential on the part of the investigating agency

to complete the chain of circumstantial evidence given the fact

that there are different versions even with the rodenticide

alleged to have been used in the instant case. PW4 described

rodenticide to be "rat killer" while Investigating Officer PW42

claimed that it was "Hit Kills Rats". At about 12:30 P.M., the

deceased asked her cousin (PW4) to bring green peas from the

market. He in addition to green peas also got Pakoras. The

deceased after coming back from her office cooked Pulao, which

was consumed by Nishant (PW7), the appellant, the deceased

.

and Saurav (PW4). When these items were sent for chemical

analysis, poison was detected in Pulao. If that be so then

whether other persons excluding the deceased suffered any

reaction has not at all been investigated.

91 Evidence further reveals that cooked mutton was

also found in the room of the deceased, however, no poison was

detected in the mutton, but was detected in the pakora, which

as per prosecution and as admitted by PW4 was brought by

him.

92 That apart, it has come in the investigation that the

articles lying in the room were taken into possession only on the

next date i.e. 13.1.2013 that too in the evening after registration

of an FIR at 4:00 P.M.

93 What was the reason for not taking into possession

the left-out articles including food items lying in the kitchen,

which were subsequently taken on 14.1.2013 i.e., 3rd day, that

too, without taking fingerprints from objects and utensils lying

in the room and kitchen, is not at all forthcoming, which, in

itself, creates a grave suspicion in the prosecution story. It was

incumbent upon the Investigating Officer to have lifted

fingerprints from the spot and this would have gone a long way

to nab the culprit.

.

94 Even call details record, Ext. PW41/C in the absence

of proof of identification of the mobile number of the appellant is

of no avail to the prosecution. PW41 Mandan Lal Sharma has

simply placed CDR on record and has not stated anything about

the location of even identified numbers. In the absence of any

proof of linking the appellant with mobile No. 93180-11555, the

CDR loses its significance. It was incumbent upon the

prosecution to prove that the appellant was using the aforesaid

mobile number. The mere fact that the mobile number was not

being used by the person, in whose name the same was

registered, would not automatically suggest much less mean

that it was the appellant, who had been using the same.

95 What is still worse is that there is no substantive

evidence on record to prove this fact because the Investigating

Officer has not even cared to take into possession the mobile

phone of the appellant nor established that it was being used by

him during the period in question.

96 The learned trial court has gone astray by assuming

that the mobile number was being used by the appellant only

because the same was not being used by the person in whose

name the same was registered.

.

97 It is the prosecution case that Nishant (PW7),

another friend of the deceased, had sex with the deceased on

the previous night on 10.1.2013, but his blood samples were

not taken nor was any investigation on the role of Nishant was

conducted, which is indicative of the fact that the investigation

was conducted with a pre-conceived or closed mind.

98 Apart from the above, we are of the considered view

that the investigation in this case is far from being fair. This is

evident from the following circumstances: -

I. The Investigating Officer did not record the statement under section 154 Cr.P.C immediately

upon arrival at the spot and took time to register the FIR only after 14 hours.

II. The Investigating Officer withheld the statements of witnesses recorded during inquest

proceedings.

III. The Investigating Officer did not investigate or

ascertain the factum of the interview, which the deceased was to attend at Dharamshala on 12.1.2013. Had he investigated so, reasons subsequently introduced through the testimony of PWI, PW2 and PW4 for suspecting the involvement of the appellant may not have been there.

IV. The Investigating Officer did not take blood samples of Nishant (PW7) for the purpose of DNA test

.

V. Lady HC Raksha Devi who assisted the

Investigating Officer in examining the dead body and was aware of the spot position was not examined.

VI. The Investigating Officer did not care to investigate the role of Rohit and without conducting any investigation deposed that Rohit was not

involved in this case. Even the role of other friends and colleagues who frequently visited the deceased had not been investigated.

99 Apart from the above, so-called incriminating

material, cognizance of which was taken by the learned trial

court, could not have been used against the appellant because

it was not put to him under Section 313 Cr.P.C. for the purpose

of seeking his explanation. In this behalf, the circumstances,

the cognizance of which was taken against the appellant and

were not put to the appellant are enumerated below: -

I. Reason disclosed by PW1, PW2 and PW4 that

the appellant misled them by stating that she had gone to Dharamshala for an interview.

II. There is no evidence of last seen but Ld. Trial Court on the version of I.O (who could not be a witness of last seen) has taken cognizance of last seen.

III. The learned Trial Court based on an improved and doctored version of PW4, cousin (though he has not specifically stated so) has recorded that

.

appellant was frustrated because of Nishant (PW7)

relationship with the deceased; therefore, it was the motive for him to commit the offence.

IV. Report of DNA was just stated to be received. But the specific question that "your DNA has matched and what you have to say in this regard"

has not been put to him, hence it cannot be used against him.

V. r No question was put to the appellant that he was using Mobile No.93180-11555. Note

Ext.PW11/A which was produced by PW Rakesh Kumar before 1.0 was allegedly taken out from the pants of the appellant at his residence. But no

question in this behalf was put to the appellant under section 313 Cr.P.C for seeking his response. Hence it cannot be used against him.

VI. While interpreting the Call Detail Records, the

learned Trial Court on its own has observed in detail regarding the timings of the conversation between Nishant, the deceased and the appellant, but the

question of timings of the conversation, etc. was not even put to appellant u/s 313 Cr.P.C.

VII. Although CDR or oral testimony of PW Madan does not reveal the location of the appellant nor connect the appellant in any manner, but learned Trial Court on its own has taken that his location at

Icchi is proved. But this question was not even put to appellant u/s 313 Cr.P.C. for seeking his explanation.

.

VIII. The allegation that the handwriting of the

appellant in note PW11/A matches with his admitted handwriting. But no such question was put

to the appellant under section 313 Cr.P.C. IX. Similarly, no question was put to the appellant u/s 313 Cr.P.C. that you have committed sexual

intercourse without consent when she was under the effect of intoxication on account of poisoning. X. rAfter framing the charge for an offence under section 376 IPC, neither any evidence was led, nor

any opportunity of cross-examining the witnesses already examined qua this charge was afforded to the appellant. Commission of offence u/s 376 IPC

was not put to the appellant u/s 313 Cr.P.C consequent to farming of Change subsequently.

100 In a landmark judgment in Sharad Birdhichand

Sarda vs. State of Maharashtra, 1984 (4) SCC 116, the

Hon'ble Supreme Court held that the circumstances, which

were not put to the appellant in his examination under Section

313 Cr.P.C., must be completely excluded from consideration

because he did not have any chance to explain them.

101 The legal position has thereafter been reiterated in

one of the latest judgments of the Hon'ble Supreme Court in

.

Kalicharan vs. State of Uttar Pradesh (2023) 2 SCC 583,

wherein it was observed as under: -

27. Questioning an appellant under Section 313 CrPC is

not an empty formality. The requirement of Section 313 CrPC is that the appellant must be explained the circumstances appearing in the evidence against him so

that the appellant can offer an explanation. After an appellant is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the appellant is

not explained the important circumstances appearing

against him in the evidence on which his conviction is sought to be based, the appellant will not be in a position to explain the said circumstances brought on record

against him. He will not be able to properly defend himself.

28. In paragraph 21 of the decision of this Court in the

case of Jai Dev v. State of Punjab, it was held thus: -

21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a

decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060: AIR 1953 SC 468] . In that case, this Court has no doubt referred to the fact that it was important to put to the appellant each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these

observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the appellant person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The

.

examination of the appellant person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In

exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the appellant person. It would not be enough to put a few general and broad questions to the appellant, for by adopting

such a course the appellant may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the appellant person detailed questions which may amount to his

cross- examination. The ultimate test in determining whether or

not the appellant has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to

say in respect of prosecution case against him. If it appears that the examination of the appellant person was defective and thereby a prejudice has been caused to him, that would no

doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the

appellant person should be examined under Section 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few

omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the appellant person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material." (Emphasis added)

29 In paragraph 145 of the well-known decision of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, it was held thus:

.

"145. It is not necessary for us to multiply authorities on this

point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his

examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."

(emphasis supplied)

102 The learned trial court has considered and thereafter

taken following thirteen circumstances to convict and sentence

the appellant: -

(1) From the direct evidence adduced by the prosecution i.e. PW-1 Sudesh Mahajan, PW-2 Surendra Kumari, PW-3 Sangeeta Thapa, PW-4 Sourav Mahajan and PW-7

Nishant, it has been proved on record that appellant Chandresh and deceased were very close to each other

and Chandresh used to visit her room very often. On 11.1.2013, he also visited her room in the morning, in the

afternoon and also at night, thus, last seen has been proved by these witnesses as both Nishant and Saurav

had left the spot and only the deceased and appellant were left there. It is also proved on record that Nishant now had a relationship with the deceased, which the appellant did not like, because, he loved Archana, but, there is no evidence that Archana also still loved the appellant. The appellant was in a habit of taking drugs and had lost his job four days before the incident.

Therefore, he was already frustrated and had all reasons and motive to commit the offence.

(2) The circumstantial evidence, which includes the

.

telephone call details between the deceased and the

appellant and between deceased and Nishant with telephone locations of all three of them, proves the location of the appellant at the place of incident at the time when

the incident had occurred and the presence of Nishant is negated as his location was found to be of Hamirpur and Sourav had left for Chamba and had reached in his house

at 6.00 p.m. (3) The recovery of "Dupatta" and plastic rope with which the appellant had strangulated the deceased, which was

made at the instance of the appellant on the basis of his

disclosure statement made under Section 27 of the Indian Evidence Act, which is also proved by the witnesses to the disclosure statement. The appellant had concealed the "Dupatta" in the almirah and had thrown the plastic rope

in the bushes near the Mount Carmal School. The disclosure statement also stands proved.

(4) The key of the lock was got recovered after the confession of the appellant from the window of the kitchen

of the room of the deceased, which proves that he had locked the room of the deceased and had concealed the

key, recovery of which had been got done by the appellant and the dead body of the deceased was found from the locked room.

(5) The food articles i.e. cooked rice, mutton Pulao and Pakouras, which were recovered from the room of the deceased, were sent for chemical examination and in the report of the Chemical Examiner, it was found that the rat

killer poison (rodenticide) was mixed in the cooked food of Archana and also from inside the stomach and intestine as well as viscera of the deceased and this rat killer was

.

also recovered from her room, which establishes that the

deceased was intoxicated with poison of rodenticide rat killer.

(6) Further, the postmortem report confirms that the

deceased was also killed by strangulation with the help of rope and "Dupatta". Further, from the report of Chemical examiner, it was found that the deceased was killed

under intoxication bromadiolone by strangulating her with rope and "Dupatta" and she was sexually assaulted and strangulated when she was still alive, but, under

intoxication of poison i.e., rat killer.

(7) Forensic reports show that the key so recovered at the instance of the appellant is the key, which can lock and unlock the lock, which was found on the door of the room of deceased, in which, her dead body was found. The

forensic report also establishes the handwritings of the appellant on the letter Ex. PW-11/A and diaries of the

appellant, which was written by the appellant, when, it matches with the admitted handwriting of the appellant.

(8) The inner garments of the deceased containing blood stains, which were oozing from her private parts of the

deceased, further confirms the sexual assault on the deceased.

(9) The medical of the appellant confirms that he had received injuries 2-3 days before, which can be caused in a scuffle if a person resists any assault as the deceased was strangulated on the left side by putting pressure from backward and the appellant had received injuries on the

forehead on the right side. He had also received injuries on the elbow, which might have been received by applying force during the assault on the deceased. These injuries

.

on the person of the appellant, also remained unexplained.

(10) There is no evidence led by the defence nor any witness has been examined to show that Archana also loved appellant. Therefore, it is love triangle and the

knowledge of the appellant that Nishant is involved with Archana, was the motive to kill Archana, because, he could not see anyone else loving Archana.

(11) DNA report also proves that the DNA of the appellant was found on the vaginal swab of the deceased, which is a conclusive proof regarding any sexual assault on the

deceased by the appellant, because, the deceased was

involved with someone else, therefore, it would not have been consensual. Moreover, the deceased was under intoxication of poison administered to her in the food by the appellant, therefore, no question of consent arises as

the appellant had made her helpless with predetermined mind to kill her and if there had been any consent, then,

there would not have been any reason for the appellant to kill Archana. The report of DNA as proved by the

prosecution is the conclusive proof that sexual assault has occurred with Archana before her death as DNA profiling

is the latest technique and is a perfect science. (12) The conduct of the appellant on seeing Nishant in the room of the deceased that he had become very sad and he asked brother of deceased (PW-4) Sourav Mahajan that whether they had committed something wrong together, then calling the deceased by the appellant again and again that day. The conduct of the appellant after the

incident that he had not eaten anything and he asked food from his friends in the morning when they came to him nearly about 10.00 O'clock and he was drunk and

.

was smoking badly as his room was full of smoke. The

friends have also testified that he was under intoxication and was not able to stand himself, therefore, his mother told them to drop him at Hamirpur.

(13) On the other hand, the defence taken by the appellant that Rohit was earlier involved with the deceased, could not be established on record. DW-2 Rajbansh does not

know the name of his uncle in his evidence and has been shattered. He cannot tell as to at what places, he went to after lunch time. He had also gone to Ghurkari and other

places. He had stated that he did not go to the room of the

appellant to see, whether he was there and had admitted that he could not tell whether the appellant had gone somewhere late at night in the evening or not. Similarly, DW-3 Jeewan Kumar has established that the appellant

was with a girl at lunch time in his Dhaba at about 2.30 p.m., which also establishes that the appellant person

was the last person seen with the deceased. In his cross- examination, he stated that in the dark, he could not see

more than a distance of 50 meters and the house of Chandresh was more than 50 meters away. He has also

testified that he cannot say that after 5.00 p.m., Chandresh again had gone to the quarter of the girl or not.

103 Father (PW1), mother (PW2) and cousin ((PW4) of the

deceased suspected involvement of the appellant solely on the

ground of his responding to the telephone call made by PW2

when he stated that the deceased had gone to Dharamshala for

an interview, whereas as per prosecution case, she was lying

.

dead at that time.

104 This could be at best a strong suspicion, but could

not have formed basis for conviction of the appellant as the

same does not appear to be well founded for the following

reasons.

105 The learned Trial Court in Sub-para 1 of para 82 of

the judgment has recorded that "on 11.01.2013 he (appellant)

also visited her room in the morning, in the afternoon and also

at night thus last seen has been proved by the witness as both

Nishant and Saurav had left the spot and only, deceased and

appellant were left there."

106 This finding of the Trial Court is absolutely incorrect

and contrary to the evidence on record. Evidence on record in

this behalf is the testimony of PW4 Saurav cousin of the

deceased, which reads as under: -

"Archana made a telephonic call at 12 noon to get green peas and at about 1 PM, I with peas and Pakoras went to her quarter. There I found appellant, person, Nishant and Archana. Arcahna cooked rice Baranj and we all four took the same and we all four came to Ichhi bus stop. Arcahnawent to her office. Nishant left for Hamirpur. I and appellant came together upto Gaggal.

107 In cross examination also he again stated that after

taking meal, all four came out of her residence to their

.

respective destinations.

108 The next witness, who could have stated about

presence of appellant, is PW9 Ram Pal (Landlord), but he has

not stated anything and has rather not supported the

prosecution case. Similarly, PW10 is immediate neighbor of

deceased Archana and she states that "I did not notice the

appellant person at Ichhi on 10.01.2013 and 11.01.2013". On

the other hand, it has come in the testimony of PW14 Jagdish

Chand, who is landlord of appellant at Purana Mataur that "on

dated 11.02.2013 at 3.00/4.00 pm appellant came through main

gate to his room. I enquired from him about his health, but he

replied that he was not feeling well and want to take rest." In

cross examination, he also states that "After Chandresh came

home on 11.01.2013, I did not see him leaving the room till next

date."

109 There is no evidence whatsoever on record that in

the evening or night of 11.01.2013, appellant was seen with

deceased at Ichhi. It is also relevant to point out here that PW16

Rajnish Area manager of Reliance Co. who was boss of deceased

(Archna) has specifically stated in 7th line of his statement that

"she worked till 6 PM on 11.01.2013". It proves that deceased

was in her office till 6 PM and may have proceeded to her

.

residence only thereafter.

110 Hence, the findings recorded by Trial Court about

last seen are contrary to the evidence on record. In this behalf,

Trial Court has rather picked up a line in the testimony of

Investigating Officer. PW42 who voluntarily states that "the

owner Ram Paul has seen the appellant in the evening of

11.01.2013". Whereas, PW9 Ram Pal has not stated anything in

this behalf. Statement of Investigating Officer was not

admissible.

111 In this behalf inadmissible evidence of PW42

Investigating Officer has been relied by Trial Court, without

even noticing that it was not worth putting to the appellant u/s

313 Cr.P.C being not proved. Deceased made her last call to

mother PW2 at 8 PM, when she stated that she was eating

Branj, meaning thereby she took her dinner at about 8 PM and

till that time, she was alright.

112 In sub para 1 of para 82, it is also recorded by Trial

court that the appellant was frustrated after deceased developed

relations with Nishant, therefore he had all reasons and motive

to commit the offence. But, there is no evidence whatsoever to

prove it. This observation of the trial court is simply based on

its own assumption.

.

113 Evidence on record reveals that deceased was very

bold and frank lady. Her friends and colleagues used to visit her

residence. It is so stated by PW4 her cousin.

114 DWI Smt. Sushma, who was colleague of deceased in

Dharamshala has specifically stated that "one Rohit use to tell

her not to talk to any other person without his permission.

Archana had changed her room twice due to fear of Rohit to avoid

him. But Rohit had searched her there also. Once I had gone to

room of Archana, where I saw that she had been treated badly

by Rohit".

115 PW2 mother of deceased in her cross-examination

(4th line) has specifically stated that "I know Rohit. It is correct

that Rohit used to trouble my daughter".

116 DWI colleague of deceased has stated that Archana

had never told me that Chandresh used to insist time and again

to get married with him. Therefore, story introduced by

prosecution that the appellant wanted to marry her is not at all

established. Moreover, appellant was knowing her relationship

with other friends, even father, mother and her friend (PW1,

PW2 and PW3 respectively) who were well aware of the

appellant's friendship with deceased have not stated that the

appellant wanted to marry her.

.

117 The Trial Court in absence of any cogent evidence

has taken and accepted it as one of proven incriminatory

circumstance against the appellant that too without even

putting it to the appellant under section 313 Cr.P.C.

118 Under sub- para 2 of para 82 of the judgment much

reliance has been taken of call detail records (CDRs) of the

deceased, appellant and Nishant. It is observed that these CDRs

prove location of appellant at the place of incident.

119 However, these findings are contrary to the evidence

on record. Deceased was putting up at Ichhi, whereas

appellant's residence was at Purana Mataur.

120 As per story of prosecution it is alleged that the

appellant Chandresh was using sim bearing No. 93180-11555,

but record reveals that neither the mobile nor the SIM was

recovered or taken into possession to prove that the same was

being used by the appellant.

121 No evidence oral or otherwise is on record to connect

the appellant with this number. No witness has stated that

appellant was using this number. Even PW21, Rajinder Kumar,

in whose name sim card bearing no. 93180-11555 was found

registered during investigation, has not supported the case of

prosecution. He has simply stated that he came to know from

.

the police that appellant was using this sim. His knowledge is

based on police information. Even Investigating Officer is silent

on this aspect and does not even state that the appellant was

found using this number.

122 Mere Mentioning of the mobile number in the FIR by

PWI (father of deceased) would not suffice, more particularly

when he in his statement before the court stated that "I did not

know the telephone number of appellant." Moreover, this

question has not been put to the appellant under section 313

Cr.P.C by asking him that he was using phone number 93180-

11555.

123 In view of the above position, in absence of any

linking evidence/material on record, CDRs have no relevance.

Otherwise also PW41 Madan Lal Nodal officer has simply

placed on record the CDRs of three phone numbers given to him

by the police. He neither stated anything qua location of these

numbers nor linked the appellant with one of these numbers.

124 The evidence of CDR in absence of link evidence

connecting appellant with the alleged number is liable to be

ignored/ discarded.

125 In sub-para 3 of para 82 of the judgment, the Ld.

Trial court has recorded that the disclosure statement stands

.

proved and further recovery of dupatta and plastic rope at the

instance of appellant is also proved.

126 This finding also appears to be wrong and incorrect

as in this case key witnesses associated to prove prosecution

version are PW5, uncle (chacha) of deceased and his close friend

PW6 Khem Singh. Both are from Chamba. No locals were

associated for the reasons best known to the Investigating

Officer. PW5 Pawan Kumar in his examination-in-Chief states

that: -

"On 15.01.2013. I came to police station where the police was enquiring from the appellant person as to where he

had kept the articles. The police than took me and Khem Chand to a place on the back side of the spot. The appellant person had told he had thrown the plastic rope

there. The appellant was then taken to the room. The

appellant then produced one dupatta."

127 PW5 Pawan Kumar is absolutely silent regarding

recovery of plastic rope. His above version indicates that the

place was probably already known. His version further reveals

that the appellant was taken to the room and he produced one

dupatta. This witness does not state that dupatta was recovered

at the instance of appellant from almirah of deceased which is

otherwise the prosecution story. This witness does not state

.

anything about the place near Mount View School wherefrom

the alleged recovery of rope is shown. In cross examination, this

witness states that "it is correct to suggest that appellant person

had not made any disclosure statement." This version of the key

witness has falsified the prosecution story in respect of so called

disclosure statement as well as recovery of rope and dupatta at

the instance of appellant. His testimony is contrary to PW6, who

states that the rope was recovered from near Mount View School

and even qua disclosure statement has given an altogether

different story. Moreover, the so-called place of recovery was an

open place adjoining the main road.

128 As per sub para 4 of para 82, it is recorded that the

key of the lock was got recovered after confession of the

appellant from window of the kitchen. which proves that the

appellant had locked the room of deceased.

129 This finding again is without any basis because the

prosecution case is that key was recovered consequent to

disclosure statement, however the same is not proved by cogent

evidence. Witnesses are absolutely silent about this. The Trial

Court observed that it was recovered on the basis of confession.

If that be so, then the recovery is not admissible being based on

confession. There is no evidence on record that the appellant

.

had locked the room of deceased. Even if it is assumed that

after locking the door, key was kept inside the window, even

then the further question as to why the finger prints of the key

were not taken is not at all forthcoming.

130 Moreover as per PW4, the key used to be kept inside

window. Once that be so, then the role of PW4 cousin also

creates doubt as to why he had not searched for the key inside

the window when he was aware of the same and then where

was the need to break open the lock.

131 In sub para 5 of para 82 of the judgment, it is

recorded that cooked rice, mutton, pulao and pakoras were

recovered. Further it is also recorded that rat killer poison was

found mixed in the food, which proves that the deceased was

intoxicated with poison rodenticide.

132 However, report reveals that poison was found in

Pakoras and Baranj (Pulao) only and not in mutton. Who had

brought the mutton in the evening as it was not in lunch has at

all not been investigated. No explanation from Investigating

Officer has come on record.

133 On the other hand, evidence on record reveals that

PW4 cousin of deceased on her asking had brought green peas

.

and pakoras at about 12.0. clock on 11.01.2013, whereafter

deceased cooked Pulao/rice and all four deceased, Nishant,

Appellant and Saurav took lunch together. No investigation has

been conducted as to who had brought the poison and from

where, whereas this could have easily been ascertained.

134 Pakoras, which were brought by Saurav (PW4), were

found to be containing poison, but yet no investigation was

carried out in this regard qua the role of PW4, who was knowing

that deceased was an adopted daughter of his Taya and thus

not within his blood relations.

135 The circumstance of poisoning in absence of any

evidence connecting appellant therewith could not have been

used against the appellant.

136 In sub para 6 of para 82 of the judgment, it is

recorded that deceased as per Post mortem was killed under

intoxication by strangulation with the help of rope and dupatta

and was sexually assaulted before her strangulation when she

was alive.

137 However, as per evidence on record, both rope and

dupatta individually were strong enough for strangulation. Once

that be so, then the possibility of either of the two being

planted cannot be ruled out and rather creates a serious doubt

.

about the prosecution case.

138 As per post mortem report no external injuries were

found on the body of deceased except ligature mark on her

neck. No sign of sexual assault. Inquest report as well as

medical evidence on the record does not support sexual assault.

Merely because the Doctor had stated on the basis of the report

of DNA that there was possibility of sexual intercourse with the

appellant would not prove that before strangulation she was

sexually assaulted, especially when he could not tell the exact

duration from the time the vaginal swab had been collected.

139 In absence of clinching evidence of sexual assault

immediately before her death it could not be assumed solely on

the basis of so called DNA report which otherwise is only

corroborative and not conclusive (as would be discussed later

on).

140 In sub para 7 of 82 of the judgment, in concluding

lines it is recorded that handwriting of appellant on the letter Ex

PW11/A and diaries which are allegedly written by appellant

matches with the admitted handwriting of the appellant.

141 In this regard we may firstly notice that the so-called

letter Ext.PW11/A which is stated to be written by appellant

.

has not been recovered from appellant or from his room. It, in

fact, has not been proved by any direct evidence that it is

written by appellant. How and in what manner it happened to

be with PW Rakesh Kumar, who of his own handed it to the

police on 14.01.2013, when appellant was in custody also, does

create a serious doubt. Secondly, the opinion of hand writing

expert cannot be taken to be a conclusive proof to prove that it

was written by appellant only given the manner in which the

letter is alleged to have been recovered.

142 Apart from the above, the recovery of written note

PW11/A as alleged by the prosecution has not been put to the

appellant under section 313 Cr.P.C. Hence it is of no

significance to the prosecution case and could not have been

used against the appellant. Handwritings on diaries have also

not been proved, hence opinion of the experts based thereon is

liable to be discarded.

143 In sub para 8 of para 82 of the judgment it is

recorded that inner garments of the deceased contained blood

stains, which was also oozing from her private part, further

confirms the sexual assault on the deceased.

144 We have considered this aspect in detail and are of

the considered view that even this finding is not supported by

.

the evidence on record, which reveals that the dead body of the

deceased which was lying on a cot was found to be fully clothed.

The blood stains were found on underwear of deceased as is

apparent from inquest report Exbt.PW42/B prepared on the

spot. Inquest report also reveals that no external injuries were

found on the body except on neck as noticed by I.O. and

witnesses present on the spot. Post mortem report also ruled

out sexual assault as no indication qua the same was found

while examining the dead body. In absence of any proof of blood

oozing out from private part of the deceased, the version given

by PW2 and PW42 I.O. to the contrary was clearly an

improvement and thus, liable to be discarded.

145 It also needs to be noticed that the prosecution has

not examined the lady H.C Raksha, in whose presence the body

was examined at the spot. Similarly, the three police officials of

police post Gaggal, who had already reached at the spot before

arrival of I.O. (PW 42) have also not been examined. Hence,

findings of Trial Court that the evidence confirms the sexual

assault are not supportable for want of conclusive evidence.

146 Under sub para 9 of the para 82, the Trial court has

taken the cognizance of three minor injuries on the person of

.

appellant to come to the conclusion that the appellant had

received injuries in a scuffle with the deceased.

147 This observation/finding as recorded by the Trial

Court does not appear to be based upon any material but

appears to be based upon mere assumption, more particularly,

in view of the MLC of the appellant, Ext.PW25/B, wherein the

injuries found on his person were minor. One injury partially

healed over forehead was apparently old. Moreover, the Doctor

has specifically stated that injury Nos.1 and 3 were unlikely to

have been caused by nails. Further, it is also stated that these

injuries could have been caused by fall.

148 Above all, no explanation qua sustaining the injuries

has been sought from the appellant u/s 313 Cr.P.C. Hence no

cognizance thereof could have been taken against the appellant.

149 Even the finding as recorded under sub para 11 of

para 82 that DNA of appellant was found on the vaginal Swab of

the deceased and was thus a conclusive proof of sexual assault

on the deceased by the appellant appears to be based on mere

assumption. Firstly, it ought to be remembered that that DNA

is not conclusive test and is only corroborative as held by the

Hon'ble Supreme Court in Prakash Nishad vs. State of

Maharashtra, AIR 2023 SC 2938.

.

150 Secondly, it has specifically come in the statement of

PW38 Dr. Surinder Kumar Pal that semen was detected on the

underwear of the deceased, but could not be individualized to

be that of the appellant as no DNA test was conducted to

confirm the same and this underwear was not even sent for

conducting DNA and what was sent for DNA vide Ext.IV was

blood samples of the appellant, which, in no manner could have

established commission of sexual intercourse, that too, at the

time and place, as alleged by the prosecution.

151 Apart from the above, this important incriminating

circumstance of matching of DNA with vaginal swabs has not

been specifically put to the appellant under section 313 Cr.P.C.

for seeking his explanation. This too is again a serious lapse,

hence DNA report could not have been used against the

appellant.

152 Similarly, the observations of the Trial Court made

in sub paras 12 and 13 of para 82 in respect of conduct of

appellant after occurrence appear to be perverse. The evidence

on record does not show any abnormality in his conduct so as

to jump to a conclusion as has been done by the learned trial

court.

.

153 Further, the finding in concluding lines of these sub

paras that the appellant was last seen with the deceased, as

already discussed above, is absolutely wrong and contrary to

the evidence on record.

154 It would be noticed that initially the appellant was

charged under Section 302 IPC, however subsequently after

matching DNA, charge under Section 376 IPC IPC was also

framed, however after framing the charge no further evidence

was led to substantiate the same.

155 What is more glaring is that the appellant was not

even examined under Section 313 Cr.P.C. for the subsequent

charge. Hence, no cognizance of the same could have been

taken against the appellant in absence of affording him an

opportunity for furnishing reasonable explanation. In view of

the settled law (supra), hence his conviction under Section 376

IPC was absolutely illegal.

156 In view of the aforesaid discussions and in the given

facts and circumstances, it can conveniently be held that the

prosecution has not been able to prove its case against the

appellant beyond reasonable doubt. Therefore, the impugned

judgment and order of conviction and sentence passed by the

learned trial court are set aside. Consequently, the appellant, in

.

the instant case, is ordered to be released immediately, if not

required in any other case.

157 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 an event of an 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.

158 The instant appeal is allowed in the aforesaid terms.

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

                                        (Tarlok Singh Chauhan)
                                                Judge





                                             (Ranjan Sharma)
     10.10.2023                                    Judge
       (pankaj)