REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  31   OF 2018 (Arising out of SLP (Crl.) No. 1204 of 2015)

STATE OF HIMACHAL PRADESH        …Appellant

Versus

RAJ KUMAR                                ...Respondent

J U D G M E N T

R. BANUMATHI, J.

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  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

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Devi (PW-2) and accused Raj 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.   Barf

Devi-grandmother  of  PW-1  who was  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

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

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about 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 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 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-24) conducted autopsy

and  opined  that  "....death  was  because  of  haemorrhagic Page No. 3 of 13

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 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 fled against accused Raj Kumar, Ramesh

Kumar,  Om Prakash and Barf Devi  under Section 302 IPC

and Section 201 read with Section 34 IPC.

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.   

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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

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

fndings,  the  trial  court  convicted  the  respondent-accused

under Section 302 IPC and Section 201 IPC read with Section

34 IPC and sentenced him to undergo imprisonment for life.

Other  accused  Ramesh  Kumar  and  Om  Prakash  were

acquitted. Accused Barf 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 that there were Page No. 5 of 13

bald assertions regarding dispute, but no specifc motive was

attributed  to  the  accused  for  committing  murder  of  the

deceased  Meena  Devi.   Observing  that  the  case  of

prosecution suffers from serious infrmities, the High Court

allowed the criminal appeal fled by the respondent-accused

thereby setting aside the conviction and the sentence of life

imprisonment  imposed  upon  him.   Being  aggrieved,  the

State is 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  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  frmly

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 evidence.  Further the proved

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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  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 guilt is sought to be drawn must be cogently and frmly established; that those circumstances should  be  of  a  defnite  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  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  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.

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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-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  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

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 Page No. 8 of 13

24.08.2007,  PW-1  and  PW-3  went  to  P.P.  Dharampur  and

informed them about missing of Meena Devi.  Meena Devi

was  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

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 the offence.

13. The motive  attributed to  the accused is  that  he  had

frequently 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 Page No. 9 of 13

deceased  Meena  Devi  which  was  not  acceptable  to  the

accused.  Yet another motive attributed to the accused was

his greed for  the fxed deposit  of  Rs.1,20,000/-  which had

become due 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  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.

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 Page No. 10 of 13

seeing and observing demeanour of the witnesses held that

Jeewan Lal (PW-1) is a trustworthy witness.  While 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 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  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  fnd  her  dead.  PW-1  was  already  threatened  by

accused Om Parkash to inform Anant Ram (PW-3) that Meena

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Devi  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

confdence of  the  court.   While  so,  in  our  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 is formed, it is necessary

for  the  court  to  scrutinize  the  evidence  more  particularly

keeping in view the drawbacks and infrmities pointed out in

the evidence and evaluate them to  fnd 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 house, and a natural Page No. 12 of 13

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.  

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 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  knowledge,  his  failure  to  offer  any

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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 was made by the defence to

suggest that the deceased consumed poison 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 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  beneft  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

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of Meena Devi is 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 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  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.

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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.

…....………………………..J.   (R. BANUMATHI)

…....………………………..J.    (UDAY UMESH LALIT)

New Delhi; January 8, 2018

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