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Supreme Court of India
Satish Kumar vs The State Of Himachal Pradesh on 2 March, 2020Author: Hemant Gupta
Bench: L. Nageswara Rao, Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 19 OF 2017
SHRI SATISH KUMAR & ANR …..APPELLANT(S)
VERSUS
THE STATE OF HIMACHAL PRADESH & ANR. …..RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 1109 OF 2016
JUDGMENT
HEMANT GUPTA, J.
1. Criminal Appeal No. 19 of 2017 is preferred by Satish Kumar and
Rajeev Kumar whereas Criminal Appeal No 1109 of 2016 is
preferred by Lekh Ram, against common judgment of the High
Court of Himachal Pradesh dated 20th September, 2016 whereby
the appeal filed by the complainant was allowed and the order of
acquittal passed by the learned trial court on 30 th November, 2012
was set aside. The appellants were convicted for the offences
punishable under Section 302 read with Section 34 of the Indian
Penal Code, 18601 as well as under Sections 25 and 27 of the Arms
Act, 19592.
1 for short, ‘IPC’
2 for short, ‘Act’
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2. Brief facts leading rise to the present appeals are that on 22 nd
December, 2009 at about 07:15 hours, an information (Ex PW 15-
A) was received by Ram Singh (PW-15), Inspector, on phone said to
be by Satish Kumar son of Kanshi Ram, that Ratti Ram son of late
Shri Roshan Lal, had died due to gun shot. On receiving such
information, a Police team led by the Station House Officer of
Police Station Ghumarwin proceeded towards the place of
occurrence. Subsequently, on the statement of Neelam Sharma
(PW-1), daughter of deceased Ratti Ram, FIR No. 218 was
registered on 22nd December, 2009 at about 14:05 hours.
3. Neelam Sharma had stated that her father left home at about 8 am
on 21st December, 2009 informing her that he would go to the
house of Karma at Village Chujala and thereafter he would go to
attend his duty at Village Harlog. But when he did not return till 6
pm, she called on his mobile number but mobile was switched off.
She called in the morning to the Forest Guard to inquire about her
father who told her that her father had not come there to join the
duty. Thereafter, she made telephone call to accused Satish
Kumar, whose house is in front of her house and sought phone
number of Karma, resident of Village Chujala. The Police came to
her house on 22nd December, 2009, when she came to know that
her father had died due to gun shot by Satish Kumar and Rajeev
Kumar and the body of his father is lying at Balh Churani forest.
The motive of murder was said to be land dispute with Satish
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Kumar pending in Shimla High Court.
4. Ram Singh (PW-15), Inspector, deposed that the disclosure
statements of accused Satish Kumar and Rajeev Kumar were
recorded on 22nd December, 2009 itself. The statements of both
the accused Satish Kumar (Ext. PW2/A) and Rajeev Kumar (Ext.
PW15/C) were recorded in the presence of Jaswant Singh (PW-2)
and Kuldeep Singh (PW-3). They disclosed that the dead body of
deceased Ratti Ram had been concealed in Balh Churani forest and
that they could get the same recovered. Both the accused
accompanied the Police team to Balh Churani forest and on their
demarcation of the spot, the dead body of deceased Ratti Ram was
recovered on 22nd December, 2009 in the presence of witnesses
Jaswant Singh and Kuldeep Singh. The memo of taking possession
of dead body is Ex.PW15/F. A bag was also recovered lying nearby
the dead body which was identified by Neelam Sharma (PW-1)
belonging to her father. The dry soil was also taken from the spot
by the Police and spot map of the recovery of dead body was also
prepared. Two pellet marks were visible on the stems of bushes.
The embedded pellets were removed with a stone.
5. Subsequently, on the same day, another statement of accused
Rajeev Kumar was recorded in respect of disclosure of single barrel
gun concealed in his house. The recovery memo is PW15/G.
Accused Rajeev Kumar also stated that he had concealed empty
cartridge in his house, which was also taken in possession from his
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house on 27th December, 2009. Accused Lekh Ram is the father of
accused Rajeev Kumar. It is alleged that the gun was licensed in his
name and two live cartridges were recovered from his house.
6. The Investigating Officer (IO) had also taken possession of blood-
stained soil, leaves and grass particles lifted from the spot; and the
clothes worn by the deceased Ratti Ram. All these articles along
with the gun, the empty cartridge and the live cartridges were sent
for forensic science examinations. The report (Ex.PW14/D) dated
22nd March, 2010 in respect of articles such as clothes and blood on
the clothes and the soil was furnished whereas in respect of the
gun, the cartridge was found to be fired from the gun recovered on
the basis of disclosure statement of Rajeev Kumar. It was also
reported that traces of gunshot residue on the holes was present
on the clothes worn by the deceased and the range of firing was
distant.
7. The postmortem was conducted on 23 rd December, 2009 by Dr.
N.K. Sankhan (PW-7) who had found multiple injuries on the dead
body of deceased Ratti Ram and also found multiple perforated
wounds. As per his final opinion, deceased Ratti Ram died due to
cardio respiratory failure as a result of injuries to lungs and heart
and hypovolemic shock as a result of gunshot injury.
8. On the basis of the evidence produced, the learned trial court
acquitted all the accused for the reason that the prosecution has
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failed to prove the guilt of the accused beyond reasonable doubt.
The learned trial court held that the IO was in the knowledge about
the dead body, therefore, the question of recording of the
disclosure statements of accused persons has got no evidentiary
value. The learned trial court found that the confession of guilt of
the accused persons is difficult to be drawn, rather exculpatory
conclusions are deducible. The circumstances are not of a
conclusive nature and do not exclude every possible hypothesis
consistent with the innocence of the accused. The learned trial
court returned the following finding:
“29. Thus, in view of the evidence as discoursed
aforesaid, it is emerging that investigating officer was in
the knowledge about the dead body and in view of this,
the question of recording of disclosure statements of
accused persons gathers no evidentiary value. If the
police already had knowledge of the place of recovery
then the evidence collected in pursuance to disclosure
statements becomes inadmissible and takes the case
out of purview of Section 27 of the Indian Evidence Act.”
9. The High Court found that the finding of the learned trial court that
the dead body was recovered prior to the disclosure statement
made by the accused Satish Kumar and Rajeev Kumar is not cor-
rect. In fact, the dead body was recovered only on the basis of the
disclosure statements. The High Court further found that the re-
covery of the dead body and the weapon of offence in pursuance
of the disclosure statement stands corroborated with the report of
the forensic science laboratory. Thus, the chain of the circum-
stances is complete so as to warrant conviction of all the accused.
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10. However, in appeal preferred by the complainant, the judgment of
the trial court was set aside. The High Court held that the
postmortem report and the report of the Forensic Science
Laboratory emphatically lead to the use of gun (Ext.P/27) by the
accused. Therefore, there is incriminatory evidence against the
accused. The High Court held that the dead body was not known
to the prosecution, before the recovery was made in pursuance of
disclosure statement, therefore, the finding of the trial court is not
correct. The High Court also found that even if it is assumed that
the gun shot fired by only one of the accused, it would not
exculpate the incriminatory role of other co-accused in the relevant
occurrence.
11. The learned counsel for the appellant argued that as the entire
case of the prosecution is based on circumstantial evidence, the
prosecution has to prove the hypothesis that the accused alone
have committed the crime. The prosecution witnesses have given
contradictory statements which does not complete the chain of cir-
cumstances and in fact, the truthfulness of the case of the prose-
cution is seriously doubted. This Court in Sharad Birdhichand
Sarda v. State of Maharashtra3, delineated the conditions,
which must be fulfilled before a case against an accused can be
said to be established on the basis of circumstances. It was held as
under:
3 (1984) 4 SCC 116
6
“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC (Cri)
p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence.”
12. In Brajendrasingh v. State of M.P.4, this Court held that the
4 2012 4 SCC 289.
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circumstances from which the conclusion of guilt is to be drawn
should be fully established and should also be consistent with only
one hypothesis i.e. the guilt of the accused. The circumstances
should be conclusive and proved by the prosecution. There must
be a chain of events so complete so as not to leave any substantial
doubt in the mind of the Court. The Court held as under:
“27. There is no doubt that it is not a case of direct
evidence but the conviction of the accused is founded
on circumstantial evidence. It is a settled principle of law
that the prosecution has to satisfy certain conditions
before a conviction based on circumstantial evidence
can be sustained. The circumstances from which the
conclusion of guilt is to be drawn should be fully
established and should also be consistent with only one
hypothesis i.e. the guilt of the accused. The
circumstances should be conclusive and proved by the
prosecution. There must be a chain of events so
complete so as not to leave any substantial doubt in the
mind of the Court. Irresistibly, the evidence should lead
to the conclusion inconsistent with the innocence of the
accused and the only possibility that the accused has
committed the crime. To put it simply, the circumstances
forming the chain of events should be proved and they
should cumulatively point towards the guilt of the
accused alone. In such circumstances, the inference of
guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible
with the innocence of the accused or the guilt of any
other person.”
13. The primary question in the present appeals is as to whether, the
prosecution has recovered the dead body prior to recording of
confessional statements of the accused vide Ex. PW2/A and Ex.
PW15/C of Satish Kumar and Rajeev Kumar.
14. It is contended that the information with respect to death of Ratti
Ram was received by Inspector Ram Singh (PW-15) on the phone
8
by one of the appellants Satish Kumar at 07.15 hours. PW-15
proceeded to Balh Churani forest along with other police officials
after receipt of such information. Ex. PW1/A is the statement of
Neelam Sharma recorded at 12.45 pm by PW-15 at Village Balh
Churani. The FIR is registered at 14.05 hours.
15. The first statement of Neelam Sharma (Ex. PW 1/A) is that she
came to know from the police, when they arrived at the village,
that Satish Kumar and Rajeev Kumar have killed her father. She as
PW1 deposed that the statement of the accused was recorded
before they proceeded to the forest, and that except ward member
(Jaswant Singh) nobody had told her that her father had been
murdered by Satish Kumar and Rajeev Kumar. It is after her
statement was recorded that she went to the forest with the police,
and the witness Jaswant Singh and Kuldeep Singh, and accused
Rajeev Kumar and Satish Kumar. She further deposed that PW-2
Jaswant Singh had informed her before the arrival of the police that
the dead body of her father was lying in the forest. Jaswant Singh
is ward member from Balh Churani of Gram Panchayat Robin.
Some officials proceeded to the spot, whereas some came along
with dead body of her father. She denied that Balh Churani forest
is a big forest.
16. On the other hand, PW-2-Jaswant Singh was declared hostile when
he deposed that no disclosure statement was made by Rajeev
Kumar in his presence. He was cross-examined by the public
prosecutor. He denied that any disclosure statement was made by
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the accused Satish Kumar and Rajeev Kumar. He also denied that
Rajeev Kumar had signed any statement in his presence. He
denied other recovery memos as well. In the cross-examination by
the accused, he admitted that Balh Churani forest starts near the
house of deceased Ratti Ram and many registered hunters used to
come to this forest for hunting prior to the occurrence. Some
hunters without permission, would also come to the forest. The
dead body of Ratti Ram was recovered from a distance of
approximately 1 KM from his house. The motorable road is at a
distance of 1 ½ KM from the dead body. He deposed that the
statement of Neelam Sharma and accused Satish Kumar was
recorded near the dead body after identification of the dead body.
He deposed that Satish Kumar stated to the police that he fired a
gunshot by mistake but he had not stated that the gunshot was
fired by him and by Rajeev Kumar. He stated that Rajeev Kumar
had stated to the police that their gun was not used for firing but
was still taken into possession by the police. He admitted that
there were criminal cases between Kanshi Ram, father of Satish
Kumar and himself, but those cases were compromised.
17. PW-3 Kuldeep Singh turned hostile and denied that any statement
was made by accused Satish Kumar and Rajeev Kumar in his
presence. In cross-examination he deposed that 15-20 persons of
Balh Churani Village had gone to the forest. He admits that the
dead body was searched by the police and was not demarcated by
anybody else.
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18. PW-15 Ram Singh in his cross-examination deposed that the
accused Satish Kumar and Rajeev Kumar were arrested on 22 nd
December, 2009 at 1.30 pm. He categorically deposed that he had
not informed Jaswant Singh (PW-2) before proceeding from the
police station. He did not enquire with anybody over the telephone
from the police station pursuant to Daily Diary Report. He deposed
that he came to know that deceased had died due to gunshot
injury before recording the statement of Neelam Sharma. The
accused Satish Kumar and Rajeev Kumar were questioned in the
presence of Jaswant Singh and Kuldeep Singh. He denied that no
telephone call was made by Satish Kumar to police station. He
admitted that the place where the dead body was lying was about
1 KM from the house of Ratti Ram and both the accused
collectively identified the place where the dead body was lying.
19. The phone call was received by police at 7.15 am. The distance of
the place of recovery of dead body in forest from the house of the
deceased is only about 2 Kilometers approx. In the first statement
of Neelam Sharma recorded at 12.45 pm, there is an assertion that
her father was killed by gun shot by Satish Kumar and Rajeev
Kumar. How could she disclose the names of the assailants, if the
police had yet to start investigation? The statement of the accused
Satish Kumar was recorded prior to the statement of Rajeev Kumar
which was recorded between 1.30 to 2.00 pm as per PW-15. But
as per PW-2 Jaswant Singh, the police called him and got the first
confirmation about the incident from him, whereas the IO
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completely denied having made any attempt to contact PW-2 to
get any information. As per the IO, he proceeded to Balh Churani
forest after associating Satish Kumar, Jaswant Singh, Kuldeep Singh
and Neelam Sharma. The conclusion of the cause of death as due
to gunshot by Satish Kumar and Rajeev Kumar could find mention
in the FIR, which is the basis of initiating the investigating process,
only if the dead body had already been recovered. The IO has
given contradictory statement as that of statement of PW-1
Neelam Sharma as well as PW-2 Jaswant Singh. The statements of
the witnesses do not appear to be trustworthy so as to maintain
conviction of the appellants. The evidence of the prosecution does
not inspire confidence.
20. The entire prosecution case is based upon the telephone call made
by Satish Kumar but no call details have been produced to verify
the correctness of the telephone call. As per the IO, there was no
verification made in pursuance of the phone call received.
21. The other incriminating circumstance weighed with the High Court
is the recovery of the single barrel gun with the cartridge from the
house of Lekh Ram, the licence holder. The report of the forensic
science laboratory would only show that such gun was used in the
commission of crime, but the prosecution has failed to establish
which of the accused has actually used the gun. The disclosure
statement of the accused Satish Kumar is that he fired from the
gun. But the recovery of the gun is on the basis of disclosure
statement of accused Rajeev Kumar. There is no direct evidence as
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to the use of licensed gun of Lekh Ram, though the gun along with
empty and live cartridges were recovered on the statement of
Rajeev Kumar. It is not possible to conclusively hold that it was
either Rajeev Kumar or Satish Kumar who fired upon the deceased.
In the absence of the evidence as to which of the two accused fired
upon the deceased, the accused cannot be convicted only on the
basis of recovery of gun used in the commission of crime.
22. The High Court has convicted all the accused additionally for the
offences under Sections 25 and 27 of the Act. None of the
conditions mentioned in Section 25 of the Act are even broadly
extended towards all the accused including Lekh Ram, the
licensee. Section 27 of the Act provides for punishment if whoever
uses any arms or ammunition in contravention of Section 5 of the
said Act. Again, none of the conditions mentioned in Section 5 are
attracted towards any of the accused including Lekh Ram. At best,
there could be an allegation of violation of conditions of licence
but, none of the accused have been charged for violation under
Section 30 of the Act. Therefore, none of the accused is liable for
conviction for any offence under the Act.
23. In a case based upon circumstantial evidence motive is relevant
but the prosecution has failed to prove any motive on the part of
the accused. As per the statement of Neelam Sharma (PW-1), the
motive was land dispute with Satish Kumar. If such was a motive,
then there is no reason for her to contact Satish Kumar, who was
said to be staying near her house, to find out whereabouts of her
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father. The said motive has no foundation to stand.
24. The trial court has recorded an order of acquittal. Such order of
acquittal could be interfered with only if there was perversity in the
findings recorded by the trial court. Mere fact that the High Court
has a different opinion will not be sufficient to enable the High
Court to set aside the order of acquittal. The High Court in appeal
took a different view than what was taken by the trial court to set
aside the judgment and convict the appellants herein. While
exercising the jurisdiction under Section 389 of the Code of
Criminal Procedure, 19735, especially when trial court has recorded
a finding of not proving the guilt, the Appellate Court should
interfere only if the findings are perverse and are not possible by
any reasonable person. The High Court in an appeal against
acquittal does not interfere only if the Appellate Court has a
different view on process of evidence than what was taken by the
learned trial court. This Court in Chandrappa and Others v.
State of Karnataka6 considered the scope of powers of the
appellate court against an order of acquittal passed by the trial
court under the Code and held as under:-
“42. From the above decisions, in our considered view,
the following general principles regarding powers of
appellate Court while dealing with an appeal against
an order of acquittal emerge:
(1) An appellate Court has full power to review, reap-
preciate and reconsider the evidence upon which the
order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limi-
tation, restriction or condition on exercise of such
5 For short “the Code”
6 (2007) 4 SCC 415
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power and an appellate Court on the evidence before it
may reach its own conclusion, both on questions of
fact and of law;
(3) Various expressions, such as, “substantial and com-
pelling reasons”, “good and sufficient grounds” “very
strong circumstances”, “distorted conclusions”, “glar-
ing mistakes”, etc. are not intended to curtail exten-
sive powers of an appellate Court in an appeal against
acquittal. Such phraseologies are more in the nature of
“flourishes of language” to emphasise the reluctance
of an appellate Court to interfere with acquittal than to
curtail the power of the Court to review the evidence
and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of in-
nocence available to him under the fundamental prin-
ciple of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his in-
nocence is further reinforced, reaffirmed and strength-
ened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
25. We find that the High Court interfered with the findings of acquittal
even though the conclusion drawn by the trial court is a possible
conclusion on the basis of evidence on record. We find that the
prosecution has failed to prove the role of accused in causing
death of the deceased Ratti Ram inasmuch as the recovery of dead
body in pursuance of similar disclosure statements made by
accused Satish Kumar and Rajeev Kumar is not proved. In the
absence of any evidence led by the prosecution as to who fired the
fatal shot, the benefit of doubt must go to the accused persons and
15
was rightly granted by the learned trial court.
26. Consequently, we find that the order of the High Court convicting
the appellants is wholly illegal, unwarranted and unjust. The
conviction of the appellants for the offences punishable under
Section 302 read with Section 34 IPC and Sections 25 and 27 of the
Act is set aside. Accordingly, both the appeals are allowed. The
order of acquittal recorded by the trial court is restored. The bail
bonds shall stand discharged. All the accused be set at liberty, if
not wanted in any other case.
………………………………………J.
(UDAY UMESH LALIT)
………………………………………J.
(INDU MALHOTRA)
………………………………………J.
(HEMANT GUPTA)
NEW DELHI;
MARCH 02, 2020.
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