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2022 Supreme(HP) 349
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
CHAND KISHORE S/O SHRI JAGDISH PASWAN – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
Criminal Appeal No. 254 of 2020
Decided On : 27-07-2022
Advocate Appeared:
For the Appellant : VEENA SOOD.
For the Respondent: KAMAL KANT.
Point of Law : It is settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing.
Headnote:
Indian Penal Code, 1860 – Sections 201, 302 and 363 - Code of Criminal Procedure, 1973 - Section 437 – Offence of Kidnapped and Murder – Crime against children – Appeal against conviction - PW-1 had telephonically informed Police Station that her son was missing since 4-4.30 P.M from village. Police had helped complainant in searching child but could not trace him. Later dead body of child was found, packed in a gunny bag, in a field near School. Suspicion was entertained that offence might have been committed by some labourer working in the area belonging to Bihar - A close scrutiny of the material on record would disclose that the circumstances relied upon by prosecution to prove the guilt of appellant were not proved and also failed to form a complete chain of events leading to the conclusion that in all human probability the murder must have been committed by appellant. (Para 30)
Finding of the Court :
The cardinal principle of criminal jurisprudence has remained impassive. Prosecution has to prove its case beyond all reasonable doubts. Appearance of serious doubt in prosecution case only helps case of accused. More serious the offence, more arduous is duty cast upon prosecution to discharge its burden strictly in accordance with law - No conviction can be recorded on assumption. Prosecution has to discharge its burden by proving the guilt of accused beyond all reasonable doubts and for such purposes, it has to prove the fact in issue on basis of relevant and admissible evidence. Merely, because police get knowledge about the culprit either from illegal confession extracted from him or from any other source will not absolve the prosecution from its duty to prove the guilt of the accused in accordance with law - Appellant has been convicted and sentenced for commission of offence under Sections 302, 363 and 201 IPC is set aside. The appellant is acquitted of all charges and is directed to be set free forthwith, if not required in any other case.
Result: Appeal allowed.
JUDGMENT :
SATYEN VAIDYA, J.
1. The appellant has assailed judgment and sentence dated 21.12.2016 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehr, H.P. in Sessions Trial No. 0000024/2014, whereby the appellant has been convicted and sentenced as under:
| Offences | Substantive Sentence | Fine | Default Punishment |
| 302 of the IPC | Imprisonment for life. | Rs. 10,000/- | Simple imprisonment for two years. |
| 363 of the IPC | Rigorous imprisonment for seven years. | Rs. 5,000/- | Simple imprisonment for one year. |
| 201 of the IPC | Rigorous imprisonment for seven years. | Rs. 5,000/- | Simple imprisonment for one year. |
All the substantive sentences have been ordered to run concurrently. In case of realization of fine, the same has been ordered to be paid to the mother of the child.
2. The prosecution case in a nutshell was that PW-1 Ganga Devi had telephonically informed Police Station, Nirmand, District Kullu, H.P. at about 8.30 PM on 22nd April, 2013 that her son, aged about 4 years, was missing since 4-4.30 P.M from village Nirmand. The Police had helped complainant in searching the child but could not trace him. A missing report vide DDR No. 35-(A), dated 22.04.2013 Ext. PW-13/A was recorded at the police station concerned at about 10.30.PM. Despite efforts, the child could not be traced and finally on 24.04.2013 at about 2.15 P.M. FIR Ex.PW-1/A was registered under Section 363 of the IPC.
3. On 24.04.2013, at about 4.30 P.M. the dead body of the child (Master Sumit) was found, packed in a gunny bag, in a field near Ambika Public School. Suspicion was entertained that the offence might have been committed by some labourer working in the area belonging to Bihar. Accordingly, the police had instructed all the labourers from Bihar, residing in the area, not to leave the place.
4. On 25.04.2013, a team of forensic experts and a dog squad was also associated in the investigation. On the lead provided by the dog squad, the appellant was suspected to have committed the crime.
5. It was also found that the appellant had tried to abscond from the village during early morning hours of 25.04.2013. He was chased and apprehended by the villagers at a distance of about 8-10 kilometers from the village. The appellant was handed over to the police. He was arrested. Police recorded a disclosure statement of the appellant, Ex.PW-3/B on 25.04.2013, in presence of PW-3 Padam Singh and Yogesh Bhargav, whereby he disclosed that he could get recovered the “Pyjama” (lower apparel) of deceased from a place where it had been hidden. On the basis of such disclosure statement, recovery of “Pyjama” was made from the rented room of the appellant.
6. On the same day i.e. on 25.04.2013, a team of forensic experts also examined the spot where the dead body was lying as also the rented room of appellant. Certain incriminating articles were collected and seized from both the places by the police, on the instructions of the forensic experts. The forensic experts had also prepared their spot inspection report Ex.PW-10/A. The material collected by police was sent to RFSL, Mandi and SFSL, Junga, for scientific examination and analysis. The reports in this regard were produced in evidence as Ex. PW-10/B, Ex.PW-11/A, Ex.PW-11/B, Ex.PW-19/A, Ex.PW-19/B and Ex.PW-23/C.
7. On completion of investigation “challan” was presented. Appellant was charged for offences under Sections 302, 201, 363 and 102-B of the IPC. Along with appellant, one Manohar Lal was also charged for offences under Sections 202, 201 and 120-B of the IPC. It was alleged against said Manohar Lal that he had acquired prior knowledge of the commission of offences committed by the appellant, but he did not report the matter to the police or authorities. He had also helped the appellant in destroying the evidence.
8. Learned trial Court acquitted Manohar Lal of
