STATE OF HIMACHAL PRADESHversusRAJ KUMAR

102                      [2018]REPORTS
               SUPREME COURT    1 S.C.R. 102              [2018] 1 S.C.R.


A                    STATE OF HIMACHAL PRADESH
                                       v.
                                 RAJ KUMAR
                       (Criminal Appeal No. 31 of 2018)
B                             JANUARY 08, 2018
           [R. BANUMATHI AND UDAY UMESH LALIT, JJ.]
               Penal Code, 1860 – ss.302, 201 r/w.34 – Case based on
      circumstantial evidence – Deceased was residing with PW1 (son),
      PW2 (daughter) and accused-respondent (brother-in-law) – On the
C
      fateful night, PW1 heard the cries of deceased on being beaten by
      respondent who then took her towards the house of another accused
      – Later, dead body of deceased was found hanging from a tree –
      Trial court convicted the respondent – Appeal by accused allowed
      by High Court on the ground that PW-1 had made improvements in
D     his deposition and hence, was not a reliable witness – Held:
      Prosecution case is based on circumstantial evidence – In the present
      case, the circumstances relied upon by the prosecution are proved
      by cogent and reliable evidence cumulatively forming a complete
      chain pointing out that the murder was committed by the respondent
      and none-else – Further, evidence of PW-1 was cogent, natural
E
      and consistent with the prosecution case – High Court entertained
      fanciful doubts and rejected the credible evidence of PW-1 on ground
      of alleged improvements – Reasonings of the High Court for
      acquitting the respondent are unsustainable – Conviction of
      respondent by trial court is affirmed.
F
              Evidence Act, 1872 – s.106 – Burden of proving fact
      especially within knowledge – Deceased was living with her 2
      children and accused-respondent (brother-in-law) – On the fateful
      day, the respondent had beaten the deceased before taking her
      towards the house of another accused – Later, dead body of
G     deceased was found hanging from a tree – Held: In view of s.106,
      burden was cast upon the respondent, being the inmate of the house
      to give a cogent explanation as to how the deceased died – No
      reasonable explanation was forthcoming from him as to why he
      had neither lodged the complaint nor informed the police about the
      missing of deceased – Accused not throwing light on the fact which
H
                                      102
      STATE OF HIMACHAL PRADESH v. RAJ KUMAR                          103


was within his knowledge, his failure to offer any explanation is a   A
strong militating circumstance against him.
        Criminal law – Last seen theory – Deceased was last seen
alive in the company of accused – Accused did not satisfactorily
explain the missing of deceased – Held: This is a strong militating
circumstance against the accused – Deceased who was residing in       B
the same house with the accused and was last seen alive with the
accused, it was for him to explain how the deceased died.
      Allowing the appeal, the Court
      HELD: 1.1 Prosecution case is based on circumstantial
evidence. It is well settled that in a case based on circumstantial   C
evidence, the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established and
that those circumstances must be conclusive in nature unerringly
pointing towards the guilt of the accused. Moreover all the
circumstances taken cumulatively should form a complete chain         D
and there should be no gap left in the chain of evidence. Further
the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent
with his innocence. [Para 9][107-D-E]
      1.2 The deceased was living with her brother-in-law/accused     E
along with her children. If the deceased was so missing, the
natural conduct of the accused was to inform the police and also
PW-3 (deceased’s brother). But that was not done. In view of
Section 106 of the Evidence Act, 1872 burden is cast upon the
accused, being the inmate of the house to give a cogent explanation
as to how the deceased died. The respondent-accused being             F
inmate of the house cannot get away by simply keeping quiet and
offering no explanation. This is a strong militating circumstance
against the respondent indicating that he might be responsible
for the commission of the offence. [Para 12]108-G-H]
      2. The motive attributed to the accused is that he had          G
frequently quarrelled with the deceased and also assaulted her.
Evidence of PW-15 as to the motive attributed to the accused
was not properly appreciated by the High Court. [Para 13][109-
A, D]
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104           SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A           3. PW-1 is the son of the deceased residing with her and
      the accused in the same house, and a natural witness to speak
      about the occurrence. Evidence of PW-1 was cogent and natural
      and is consistent with the prosecution case. The High Court was
      not right in doubting the evidence of PW-1 on the ground of
      alleged improvements made and rejecting his evidence on the
B
      premise that there were certain improvements. [Para 15][110-
      D-E]
            4. The deceased who was residing in the same house with
      the accused and was last seen alive with the accused, it is for him
      to explain how the deceased died. The accused has no reasonable
C     explanation as to how the body of the deceased was found hanging
      from the tree. It is for the accused to explain as to what happened
      to the deceased. [Para 16][110-F]
             State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 :
            [2006] 8 Suppl. SCR 501 – relied on.
D           5. In the present case, the circumstances relied upon by
      the prosecution are proved by cogent and reliable evidence. The
      circumstances cumulatively taken form a complete chain pointing
      out that the murder was committed by the accused and none-
      else. [Para 18][111-D]
E           Trimukh Maroti Kirkan v. State of Maharashtra (2006)
            10 SCC 681: [2006] 7 Suppl. SCR 156; Ganesh Lal v.
            State of Rajasthan (2002) 1 SCC 731 : [2001] 4 Suppl.
            SCR 619; State of Maharashtra v. Suresh (2000) 1 SCC
            471 : [1999] 5 Suppl. SCR 215; State of Tamil Nadu v.
            Rajendran (1999) 8 SCC 679 : [1999] 3 Suppl. SCR 89
F
            – relied on.
                             Case Law Reference
            [2006] 7 Suppl. SCR 156         relied on       Para 10
            [2006] 8 Suppl. SCR 501         relied on       Para 10
G           [2001] 4 Suppl. SCR 619         relied on       Para 10
            [1999] 5 Suppl. SCR 215         relied on       Para 10
            [1999] 3 Suppl. SCR 89          relied on       Para 10
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      31 of 2018.
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       STATE OF HIMACHAL PRADESH v. RAJ KUMAR                              105


      From the Judgment and Order dated 19.08.2014 of the High Court       A
of Himachal Pradesh at Shimla in Criminal Appeal No. 559 of 2008.
      D. K. Thakur, AAG, Shariq Ahmed, Varinder Kumar Sharma,
Advs. for the Appellant.
      Jose Abraham, Ruchir Batra, Advs. for the Respondent.
                                                                           B
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. 1. Leave granted.
       2. This appeal preferred by the State challenges the judgment of
the High Court of Himachal Pradesh in Criminal Appeal No.559 of 2008
acquitting the respondent under Section 302 IPC by setting aside his       C
conviction and the sentence of life imprisonment imposed upon him by
the trial court.
       3. Husband of deceased Meena Devi passed away about eleven
years ago prior to the incident. Meena Devi was residing with her son
Jeewan Lal (PW-1), daughter Rekha Devi (PW-2) and accused Raj              D
Kumar (brother-in-law) in the joint family house. On 23.08.2007 at 08.30
p.m., while Meena Devi was taking meal along with her family,
respondent-accused came there in drunken condition and started abusing
Meena Devi and her children PW-1 and PW-2 without any reason and
threatened to kill them. Barfi Devi-grandmother of PW-1 who was
                                                                           E
present in the house took Jeewan Lal (PW-1) to adjoining sleeping room
and bolted the room from outside. She asked Rekha Devi (PW-2) daughter
of deceased to go to the house of her maternal uncle Anant Ram (PW-
3). While being inside the room, PW-1 heard the cries of his mother
Meena Devi and from the window saw the respondent-accused taking
her mother towards the house of another accused Om Prakash. After          F
few hours, accused opened the door and told him that his mother had
run away from the house and that he should tell the same to his maternal
uncle Anant Ram (PW-3). Under such threat from respondent-accused
and another accused Ramesh Kumar, PW-1 told his maternal uncle (PW-
3) that his mother had run away from the house. On 24.08.2007 at about
                                                                           G
02.00 a.m., Anant Ram (PW-3) came to the house of accused. Thereafter,
PW-1 and PW-3 went to Dharampur Police Station and informed the
police about missing of Meena Devi. On 25.08.2007, they again went to
the police station Dharampur and at about 11.00-11.30 a.m; at the time
Anant Ram (PW-3) received a phone call from Nek Ram informing that
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106            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     the dead body of deceased Meena Devi was found hanging from a tree
      at Ghat Bahu forest. Thereafter, PW-1 and PW-3 along with police party
      went to the spot and found that the dead body of Meena Devi was
      hanging from the branch of a pine tree with a plastic rope, tied around
      her neck. Statement of PW-1 was recorded, based on which, case in
      FIR No.250 of 2007 was registered under Section 302 IPC and Section
B
      201 read with Section 34 IPC.
              4. Initial investigation was conducted by Sub-Inspector of Police
      Sat Prakash (PW-20) and further investigation was conducted by
      Inspector of Police LR Thakur (PW-22). PW-22 prepared spot map,
      inquest and conducted further investigation. Dr. Vivek Banyal (PW-
C     24) conducted autopsy and opined that “....death was because of
      haemorrhagic shock due to rupture of spleen and anti-mortem
      injuries suggesting gagging. Hanging was post-mortem”. Accused
      Raj Kumar was taken to custody on 25.08.2007 and he was interrogated.
      Confession statement of accused was recorded on 27.08.2007 which
D     led to the recovery of a lady shirt from the room of the house of accused
      Ramesh Kumar which was under construction. Upon completion of
      investigation, chargesheet was filed against accused Raj Kumar, Ramesh
      Kumar, Om Prakash and Barfi Devi under Section 302 IPC and Section
      201 read with Section 34 IPC.
E           5. To bring home the guilt of the accused, in the Sessions Court,
      prosecution has examined as many as twenty four witnesses and marked
      number of exhibits and material objects. In the questioning under Section
      313 Cr.P.C., the accused denied all the incriminating circumstances and
      evidence and pleaded that he is innocent. The accused has not offered
      any explanation on the death of deceased Meena Devi.
F
             6. Based upon the evidence of Anant Ram (PW-3) and Bhindra
      Devi (PW-15), the trial court held that Meena Devi suffered harassment
      at the hands of her brother-in-law (respondent-accused). The trial court
      held that Jeewan Lal (PW-1) son of the deceased had spoken about the
      overt act of the accused in beating the deceased and that the accused
G     taking away Meena Devi from the house. The trial court held that no
      reasonable explanation was forth coming from the accused for the death
      of the deceased Meena Devi who was living jointly with the respondent-
      accused. On those findings, the trial court convicted the respondent-
      accused under Section 302 IPC and Section 201 IPC read with Section
H     34 IPC and sentenced him to undergo imprisonment for life. Other
       STATE OF HIMACHAL PRADESH v. RAJ KUMAR                                  107
                   [R. BANUMATHI, J.]

accused Ramesh Kumar and Om Prakash were acquitted. Accused                    A
Barfi Devi remained absconding.
        7. In the appeal preferred by the accused, the High Court observed
that Jeewan Lal (PW-1) son of the deceased, while deposing as witness
before the court in narrating the whole incident, had made improvements
and hence, PW-1 is not a reliable witness. The High Court further held         B
that there were bald assertions regarding dispute, but no specific motive
was attributed to the accused for committing murder of the deceased
Meena Devi. Observing that the case of prosecution suffers from serious
infirmities, the High Court allowed the criminal appeal filed by the
respondent-accused thereby setting aside the conviction and the sentence
of life imprisonment imposed upon him. Being aggrieved, the State is           C
before us.
      8. We have heard the learned counsel for the parties and perused
the impugned judgment and materials on record.
      9. Prosecution case is based on circumstantial evidence. It is           D
well settled that in a case based on circumstantial evidence, the
circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established and that those circumstances
must be conclusive in nature unerringly pointing towards the guilt of the
accused. Moreover all the circumstances taken cumulatively should
form a complete chain and there should be no gap left in the chain of          E
evidence. Further the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and totally inconsistent
with his innocence.
       10. In a case, based on circumstantial evidence, the inference of
guilt can be drawn only when all the incriminating facts and circumstances     F
are found to be incompatible with the innocence of the accused. In
Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC
681, it was held as under:-
      “12. ...........The normal principle in a case based on circumstantial
      evidence is that the circumstances from which an inference of            G
      guilt is sought to be drawn must be cogently and firmly established;
      that those circumstances should be of a definite tendency
      unerringly pointing towards the guilt of the accused; that the
      circumstances taken cumulatively should form a chain so complete
      that there is no escape from the conclusion that within all human
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108            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A           probability the crime was committed by the accused and they
            should be incapable of explanation on any hypothesis other than
            that of the guilt of the accused and inconsistent with their
            innocence.”
            The same principle was reiterated in State of Rajasthan v. Kashi
B     Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1
      SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and
      State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
             11. After death of her husband, Meena Devi was living with her
      children viz. Jeewan Lal (PW-1) and Rekha Devi (PW-2) along with the
      accused Raj Kumar in the joint family. In their evidence, PW-1 and PW-
C
      2 clearly stated that on 23.08.2007, respondent came in drunkard condition
      and threatened to kill them. Jeewan Lal (PW-1) who is the son of
      deceased Meena Devi clearly stated that he had heard the cries of his
      mother and also seen accused taking his mother towards the house of
      accused Om Parkash. On 25.08.2007, body of Meena Devi was found
D     hanging from a pine tree in the nearby forest. PW-24-Dr. Vivek Banyal
      who conducted the autopsy has clearly said that “anti-mortem injuries
      were caused due to gagging and hanging process of dead body
      was post-mortem”.
             12. In his evidence, Jeewan Lal (PW-1) stated that he was
E     threatened by the accused Om Parkash to make telephonic call to his
      maternal uncle Anant Ram (PW-3) that Meena Devi had run away from
      the house and under such threat Jeewan Lal (PW-1) informed Anant
      Ram (PW-3) accordingly. After Anant Ram (PW-3) came to the village
      at 02.00 a.m. on 24.08.2007, PW-1 and PW-3 went to P.P. Dharampur
      and informed them about missing of Meena Devi. Meena Devi was
F     living with her brother-in-law/accused along with her children. If Meena
      Devi was so missing, the natural conduct of the accused was to inform
      the police and also Anant Ram (PW-3). But that was not done. In view
      of Section 106 of the Evidence Act, burden is cast upon the accused,
      being the inmate of the house to give a cogent explanation as to how
G     Meena Devi died. No reasonable explanation is forthcoming from the
      accused as to why he had neither lodged the complaint nor informed the
      police about the missing of Meena Devi. The respondent-accused being
      inmate of the house cannot get away by simply keeping quiet and offering
      no explanation. This is a strong militating circumstance against the
      respondent indicating that he might be responsible for the commission of
H     the offence.
       STATE OF HIMACHAL PRADESH v. RAJ KUMAR                               109
                   [R. BANUMATHI, J.]

       13. The motive attributed to the accused is that he had frequently   A
quarrelled with the deceased and also assaulted her. A dispute is also
suggested pertaining to the land of one Swami who wanted to give his
property solely to the deceased Meena Devi which was not acceptable
to the accused. Yet another motive attributed to the accused was his
greed for the fixed deposit of Rs.1,20,000/- which had become due
                                                                            B
payable to the deceased on 13.08.2007. PW-15 Bhindra Devi, sister-in-
law of the deceased in her evidence had clearly stated that as and when
Meena Devi visited her house, Meena Devi used to tell her about the
suffering meted out to her by the accused Raj Kumar. Further, Bhindra
Devi (PW-15) had clearly spoken about the motive attributed to the
accused. From the evidence of PW-15, it is brought out that the accused     C
Raj Kumar is a chronic drunkard. On previous occasion, respondent-
accused had beaten Meena Devi and he had entered into compromise
with Meena Devi by assuring her that he would not beat her in future.
Evidence of PW-15 as to the motive attributed to the accused was not
properly appreciated by the High Court.
                                                                            D
       14. Jeewan Lal (PW-1) has clearly spoken as to the attack on
Meena Devi by the accused on the night of 23.08.2007 and the subsequent
threat to PW-1 by the accused and one Om Prakash. The trial court
which had the opportunity of seeing and observing demeanour of the
witnesses held that Jeewan Lal (PW-1) is a trustworthy witness. While
                                                                            E
so, the High Court was not right in doubting the version of Jeewan Lal
(PW-1) on the ground that PW-1 made improvements in his version. In
his statement (Ex.P/A) dated 25.08.2007, Jeewan Lal (PW-1) did not
disclose the participation qua accused Nos. 2 and 3 namely Ramesh
Kumar and Om Parkash in the commission of the offence. Evidence of
Jeewan Lal (PW-1) cannot be doubted simply because names of Ramesh          F
Kumar and Om Prakash were not mentioned in his statement recorded
on 25.08.2007 immediately after bringing down the hanging body of
Meena Devi from the tree. The circumstances in which PW-1 was
placed at that time, is to be kept in view. PW-1 was only aged nineteen
years. On the night of 23.08.2007, he had heard the cries of his mother
                                                                            G
at the time when she was beaten. PW-1 and PW-3 had been searching
for Meena Devi for more than twenty four hours that is from 24.08.2007
to 25.08.2007, only to find her dead. PW-1 was already threatened by
accused Om Parkash to inform Anant Ram (PW-3) that Meena Devi

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110             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     had run away. On 25.08.2007, when PW-1’s statement was recorded,
      he must have been in trauma and fear psychosis. In such circumstances,
      omission to mention the names of Om Parkash and Ramesh Kumar in
      his statement (Ex.P/A) does not render PW-1’s evidence untrustworthy.
      Upon proper appreciation of the evidence, the trial court observed that
      evidence of PW-1 inspires confidence of the court. While so, in our
B
      view, the High Court ought not to have doubted the version of PW-1 and
      his credibility.
             15. While appreciating the evidence of a witness, the approach
      must be whether the evidence of the witness read as a whole appears to
      be truthful in the given circumstances of the case. Once that impression
C
      is formed, it is necessary for the court to scrutinize the evidence more
      particularly keeping in view the drawbacks and infirmities pointed out in
      the evidence and evaluate them to find out whether it is against the
      general tenor of the prosecution case. Jeewan Lal (PW-1) is the son of
      the deceased Meena Devi residing with her and the accused in the same
D     house, and a natural witness to speak about the occurrence. Evidence
      of PW-1 is cogent and natural and is consistent with the prosecution
      case. The High Court was not right in doubting the evidence of PW-1
      on the ground of alleged improvements made by Jeewan Lal (PW-1)
      and rejecting his evidence on the premise that there were certain
      improvements.
E
             16. As pointed out by the Sessions Judge, deceased Meena Devi
      was last seen alive in the company of accused Raj Kumar and the accused
      did not satisfactorily explain the missing of deceased Meena Devi and
      the same is a strong militating circumstance against the accused. Meena
      Devi who was residing in the same house with the accused and was last
F     seen alive with the accused, it is for him to explain how the deceased
      died. The accused has no reasonable explanation as to how the body of
      Meena Devi was found hanging from the tree. As held in Kashi Ram
      case, it is for the accused to explain as to what happened to the deceased.
      If the accused does not throw light on the fact which is within his
G     knowledge, his failure to offer any explanation would be a strong militating
      circumstance against him.
            17. As pointed out earlier, in his questioning under Section 313
      Cr.P.C., the accused simply denied the evidence of incriminating
      circumstance put to him and pleaded that he is innocent. A feeble attempt
H
       STATE OF HIMACHAL PRADESH v. RAJ KUMAR                                   111
                   [R. BANUMATHI, J.]

was made by the defence to suggest that the deceased consumed poison            A
and committed suicide. Viscera of deceased Meena Devi was sent to
FSL Tungand. As per FSL report, no poison was detected in the viscera
of the deceased. In our considered view, the trial court rightly rejected
the plea suggested by the defence.
       18. As pointed out earlier, in a catena of judgments, this Court         B
held that when conviction is based on circumstantial evidence, there
should not be any gap in the chain of circumstances; the accused is
entitled to the benefit of doubt. In the present case, by cogent and
convincing evidence, prosecution has established the circumstances:- (i)
Motive (evidence of PW-15); (ii) accused beating the deceased and
taking her away (Evidence of PW-1); (iii) Death of Meena Devi is                C
homicidal (evidence of PW-24); (iv) Conduct of accused in not reporting
to the police about missing of the deceased Meena Devi; and (v) Absence
of explanation from the accused as to the death of the deceased. The
circumstances relied upon by the prosecution are proved by cogent and
reliable evidence. The circumstances cumulatively taken form a complete         D
chain pointing out that the murder was committed by the accused and
none-else.
       19. In the appeal, the High Court has not properly appreciated the
evidence and intrinsic worth of testimony of prosecution witnesses and
the formidable circumstances established by the prosecution against the         E
accused. The High Court entertained fanciful doubts and rejected the
credible evidence of Jeewan Lal (PW-1) on slender grounds. Due to
mis-appreciation of evidence, the High Court set aside the conviction
and caused a miscarriage of justice. Reasonings of the High Court for
acquitting the accused are unsustainable and the impugned judgment
cannot be sustained.                                                            F

       20. In the result, the impugned judgment is set aside and the appeal
is allowed. The conviction of the respondent under Section 302 IPC and
the sentence of life imprisonment imposed on him by the trial court are
affirmed. The respondent shall be taken into custody to serve the
remaining sentence.                                                             G


Divya Pandey                                                  Appeal allowed.



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