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2024 Supreme(HP) 40
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, RAKESH KAINTHLA, JJ.
Surinder Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr. Appeal No. 96 of 2019
Decided on : 02-05-2024
Advocate Appeared:
For the Appellant :Mr. Ram Murti Bisht, Advocate.
For the Respondent: Mr Pawan Kumar Nadda,
The court established that circumstantial evidence, including last seen, recovery of blood, and belongings of the victim, justifies conviction in absence of the body, shifting burden to the accused to explain incriminating factors.
Headnote:(A) Indian Penal Code - Sections 302, 201 and 309 - Conviction and sentencing of appellant for offences committed - Appellant received life imprisonment for murder, three years for destruction of evidence, and one year for attempted suicide - Court finds the prosecution established the accused last seen with the victim, recovery of her belongings and blood in his vehicle, coupled with unexplained evidence against him. (Paras 11, 12, 61, 74)
(B) Criminal Procedure Code - Section 313 - Examination of accused - Appellant's claims not substantiated adequately; failure to provide explanations for circumstantial evidence, including blood found on his clothing and in a vehicle - Court clarifies burden shifts to the accused to explain such factors post establishment of prima facie evidence against them. (Paras 56, 74)
(C) Evidence Act - Section 32 - Dying declaration - Statements admitting presence of victim with accused deemed admissible, relevant to circumstances leading to her death despite lack of physical recovery. (Paras 38, 39, 41)
(D) Evidence Act - Section 106 - Accused’s duty to explain circumstances especially within his knowledge; his failure to do so strengthens prosecution's case based on established facts. (Paras 50, 72)
| Table of Content |
|---|
| 1. conviction based on circumstantial evidence due to absence of body. (Para 12) |
| 2. defenses related to evidence lack support and prosecution's evidence was reliable. (Para 13 , 14 , 19) |
| 3. final ruling upholds conviction based on extensive circumstantial evidence. (Para 21 , 41 , 79) |
The present appeal is directed against the judgment and order dated 27.10.2018, vide which the appellant (accused before the learned Trial Court) was convicted for the commission of offences punishable under Sections 302 , 201 and 309 of the INDIAN PENAL CODE (IPC) and he was sentenced as under:-
Sr. No. | Sections under which the conviction was recorded | Sentence imposed |
1. | Section 302 of IPC | Life imprisonment and pay a fine of Rs. 1,00,000/- and in default of payment of the fine, to further undergo simple imprisonment for two years. |
2. | Section 201 of IPC | Rigorous imprisonment for three years and pay a fine of Rs.5000/- and in default of payment of the fine, to further undergo simple imprisonment for three months |
3. | Section 309 of IPC | Simple imprisonment for one year and pay a fine of Rs. 1000/- and in default of payment of the fine, to further undergo simple imprisonment for one month. |
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 302 , 201 and 309 of IPC. It was asserted that the informant Roshni (PW-11) made a complaint to the police on 07.07.2015 stating that her mother Amila Devi (since deceased) was working in a Hotel Rollingrang, Kalpa. Deceased-Amila and Kiran (PW-26) had gone to buy kerosene on 05.07.2015. They returned at about 11:00 a.m. in a white vehicle. Kiran went to her home. Deceased told the informant-Roshani Devi (PW-11) that she would return soon and she(Roshani Devi) should wash the clothes. The deceased and Kiran (PW-26) boarded the vehicle being driven by accused Surinder Kumar and all of them went towards Chugling Pangi etc. The deceased never returned to her home. Informant-Roshni Devi searched for her but failed to trace her. She also made enquiries in Hotel Rollingrang and was informed that her mother had not reported for duty. Kiran returned on the night of 06.07.2015 and said that she and the deceased had gone to Rampur in the vehicle of accused Surinder Kumar. Kiran had got down at Rampur and returned with her husband, whereas the deceased remained with accused Surinder at Rampur. Her articles i.e. pair of chappal (Ext. P-2), Basket (Ex. P-3), Broken Nail (Ext. P-7), earrings (Ex.P-9), were found on the road near Auktong Hotel by Bhag Chand (PW-4), a morning walker on 06.07.2015. He informed the police. The police showed these articles to Roshni Devi (PW-11), who identified them to be belonging to the deceased Amila. The police recorded the statement of Roshani Devi (PW-11) and registered the F.I.R. (Ext.PW-29/A).
3. ASI Narveer Singh (PW-32), seized the pair of Chappal (Ext.P-2), basket (Ext.P-3), used chewing gum (Ex. P-5), broken piece of nail (Ext.P-7) and artificial broken earring with one detached artificial pearl (Ext. P-9). He also lifted a soil sample (Ex. P-12) and a blood sample from the spot with the help of cotton (Ext.P-10). They were put in different parcels (Exts.P-1, P-6, P-8, P-11 and P-13) respectively and the parcels were sealed with seal impression ‘H’. Specimen of seal impression, (Ext.PW-32/B), was separately taken on a piece of a cloth. The parcels were seized vide Memo (Ext.PW-4/A). A site plan (Ext.PW-32/C), showing the place of recovery was also prepared. He prepared an identification memo (Ext. PW-2/A). He recorded the statements of witnesses as per their version.
4. SI Laxman Kumar, (PW-34), searched for Amila, but could not find her. He received information on 07.07.2015 that accused Surinder Ku
