Before :- Mr. Mohan M. Shantanagoudar and Mr. Ajay Rastogi, JJ.
Criminal Appeal No. 806 of 2011. D/d. 16.10.2019.
Gurcharan Singh - Appellants
Versus
State Of Himachal Pradesh - Respondents
For the Appellants :- Mr. P.K. Dey, Ms. Shreyasi Chakraborty, Ms. Shilpi Dey Auditya, Mr. Andleep Naqvi, Mr. Vijay Pal Singh, Ms. Shehla Chaudhary and Mr. Ansar Ahmad Chaudhary, Advocates.
For the Respondents :- Ms. Pratishtha Vij and Mr. Abhinav Mukerji, Advocates.
ORDER
Mohan M. Shantanagoudar, J. - The judgment dated 15.09.2009 passed in Criminal Appeal No. 268 of 2006 by the High Court of Himachal Pradesh at Shimla confirming the judgment of the Sessions Court in Sessions Case No. 11 of 2005 has been called into question in this appeal.
2. The case of the prosecution in brief is that the appellant (accused) is the husband of Daljeet Kaur (deceased/wife) and had been working in Greece for a few years. He often used to come to India to meet his wife and two children. It is alleged that the deceased suspected that the appellant was having an illicit relationship with his sister-in-law (Kamaljit Kaur) and therefore questioned him. She is said to have told her parents and her brother that the appellant used to beat her whenever she objected to this illicit relationship. On the date of the incident i.e. 09.02.2005, following a quarrel with the deceased, the appellant beat her with a wooden bat and committed her murder with a Takua. It is relevant to note that the accused had come to India few days prior to the incident in question.
Consequently, the appellant was tried for the offence punishable under Section 302, IPC . As mentioned supra, the Trial Court as well as the High Court convicted the appellant for the aforesaid offence.
3. Having heard learned counsel for the parties and perused the record, we find that there are only two circumstances against the appellant that are relevant for our consideration, given that there are no eye witnesses to the incident. These two circumstances are:
(a) the motive for commission of the offence and (b) disclosure statement by the appellant and discovery of material pursuant thereto in terms of Section 27 of the Indian Evidence Act, 1872.
4. As mentioned supra, the motive put forth by the prosecution is that the appellant was having an illicit relationship with his sister-in-law which was in the knowledge of the deceased. It is claimed that he did not end this relationship despite repeated requests made by the deceased and her family. Upon consideration, we find that the evidence on record runs contrary to the case of the prosecution.
The elder brother of the deceased (PW-1) has admitted in his cross-examination that the alleged intimacy of the accused with Kamaljit Kaur was made known to him and the other family members of the deceased about three years prior to her death. It has also come in evidence that the accused has visited the house of PW-1 only twice after his marriage with the deceased. On the other hand, the wife of PW-1, Nirmal Kaur (PW-3) has admitted in her examination-in-chief that the deceased never complained of the alleged intimacy of the appellant with Kamaljit Kaur before February, 2005 i.e. before the incident in question. Clearly, the evidence of PW-3 runs contrary to the evidence of PW-1. Notably, PW-1 and PW-3 are husband and wife and living in the same house. However, the evidence of PW-3 directly falsifies the version of PW-1.
In addition to this, the Investigating Officer (PW- 13) has admitted that though there was an allegation of illicit intimacy of the appellant with Kamaljit Kaur, this was found to be baseless upon investigation. Similarly, the Inspector (PW-11) has also admitted that this allegation was found to be baseless. Aforementioned factors would lead to the conclusion that the evidence is contrary to the case of the prosecution regarding motive. In our considered opinion, both the courts below were not justified in attributing motive to the appellant, as the circumstances establishing motive have not proved by the prosecution.
5. As far as the next circumstance of disclosure and discovery is concerned, there are again conflicting versions that have been put forth by the witnesses. PW5 2, an independent witness, was the signatory to the so called disclosure statement of the accused. However, he has admitted in his deposition before the Court that the accused did not make any such statement before the police and that nothing was recovered by the police at his instance. Another independent witness, PW-4, has also deposed before the Court that no disclosure statement was made by the accused. If it is so, the recovery allegedly made by the police would not fall under Section 27 of the Indian Evidence Act, 1872 and recovery circumstance cannot be treated as having been proved satisfactorily in accordance with law.
At the same time, the learned counsel for the State relies on the testimony of DW-1 (son of the appellant) that blood stained clothes of the deceased and a Takua (small axe) and wooden bat were seized from the house of the appellant. In our view, it is but natural to have blood stained clothes of the deceased in the said house, as the incident had taken place in that very house. It is also the case of the defence that immediately after getting the news, the appellant had rushed to the house from his field and tried to save his wife's life. While taking her body outside the house, it is thus possible the clothes of the appellant might have gotten blood stains.
Further, even though the wooden bat and Takua (small axe) were both seized from the house, only the Takua was received by the Forensic Science Laboratory for chemical examination. It was found that the Takua contained human blood of the same blood group as that of the deceased. Though these facts have been proved, the moot question that has not been answered by the prosecution is how the weapon could be connected to the appellant. Upon our consideration, we find that there is no connecting link which shows that the appellant has committed the murder by using sharp edged weapon which was seized by the police, to commit the murder of the deceased.
Even assuming that such a weapon was seized from the house of the deceased, this would not be sufficient to bring home the guilt against the accused for the offence under Section 302 I.P.C. especially since there are no other circumstances against the appellant. It is the defence version that the appellant had been to his fields in the early morning on the date of the incident and at that time two unknown persons banged into his house and assaulted the deceased. The defence has tried to substantiate such theory by examining DW-1, who has deposed on the same lines as mentioned supra. DW-1 was 12 years of age as on that day. He is the son of the appellant. DW-1 has withstood in his cross-examination. Looking into the totality of the facts and circumstances, the defence version appears to be plausible. Nevertheless, the prosecution, as mentioned supra, has failed to connect the accused to the crime in question. Except the aforementioned two circumstances, no other circumstance is put forth by the prosecution.
6. In light of the foregoing, it is clear that the first circumstance of motive has remained unproved. Similarly, the second circumstance of recovery has also not been proved and does not bring home guilt. Thus, the benefit of doubt should be given to the appellant. Any amount of suspicion cannot take place of the proof. Due to these reasons, the instant appeal has to be allowed. The judgments of the Trial Court and the High Court are set aside and the appellant is acquitted. The appeal is allowed accordingly. The bail bond stands cancelled.
