***

TARLOK SINGH CHAUHAN, J. –

The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the ‘IPC’) and sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/-. In default of payment of fine, the appellant was further directed to undergo rigorous imprisonment for a period of one year under Section 302 IPC and aggrieved thereby, the instant appeal has been filed by him.

2. Brief facts, as emerges from the record, are that complainant Duni Chand on 08.08.2016 lodged a missing report in Police Station, Jawalamukhi of his son Ravinder Kumar vide report Ext.PW-11/A, reporting therein that his son had gone missing from 07.08.2016. Consequent thereto, ASI Vijay Kumar along with Constable Rajeev Kumar were sent in search of the missing person. On 8.8.2016, Kultar Singh, Pardhan Gram Panchayat, Haroli gave information over the telephone that a dead body was visible in water of “Khara Nalla” near Nagrota below village Saloa. Thereafter, ASI Vijay Kumar reached at place “Khara Nalla” and the complainant was informed and asked to reach at the spot. The dead body was then taken out from water of “Khara nalla” and photographs Ext.PW14/A-11 to Ext.PW14/A-33 were taken. The surrounding area of the spot and dead body was inspected. Family members of Ravinder Kumar identified the dead body of deceased Ravinder Kumar. Statements of family members of deceased Ravinder Kumar were recorded and they did not express any suspicion about death of deceased Ravinder Kumar. There were no injury marks on the body of deceased. Inquest papers Ext.PW16/B were filled up and dead body was sent to Civil Hospital, Dehra for autopsy.

3. On 9.8.2016, due to non-availability of forensic expert and a team of doctors at Civil Hospital, Dehra, the dead body was taken and shifted to Dr. R.P.G.M.C. Tanda, District Kangra and post mortem thereupon was conducted vide report Ext.PW16/C. The forensic expert kept the opinion reserved till viscera chemical examination report and diatom test report.

4. It is only on 10.08.2016 that the complainant went to Police Station and lodged the complaint Ext.PW11/B alleging therein that on 7.8.2016 at 8.00 A.M., his son Ravinder Kumar went to house of Bindu, resident of Village Saloa for work. But when up till 7.00 P.M., his son did not come back home, then, he got worried and made telephone call on mobile phone of his son. Even though the mobile phone of his son rang once and thereafter, mobile phone of his son got switched off. On making second call, the mobile phone of his son was found to be switched off. Thereafter, he made telephone call to the appellant who disclosed that about 10-15 minutes ago, the deceased had left to his house and he will be reaching back at his house. But when deceased did not come back home, the complainant got worried about his son. Thereafter, at about 9.00 P.M., the complainant and his wife went on path leading to a place Saloa for searching their son but he was not found. The complainant again made telephone call to the appellant and told him that he and his wife had reached in Village Saloa, but deceased could not be traced and torch carried by them also got switched off and they asked the appellant to bring a torch. The appellant brought a torch and met them near the house of Guddu in Village Saloa. The complainant and his wife asked the appellant about the whereabouts of the deceased and they expressed their intention to go to his house, but the appellant refused and told that they will see in the morning. The complainant and his wife requested the appellant to make search of their son Ravinder Kumar and asked him to divulge any information with them. At that time, there was no electricity supply in Village Saloa and during night, the complainant and his wife could not sleep and they kept on making telephone calls to their relatives to know the whereabouts of their son Ravinder Kumar, but to no avail.

5. In the morning at 7.00 A.M., the appellant made a telephone call to the complainant and told that there was no information about the deceased. The complainant asked the appellant about the deceased and he again disclosed that at about 7.00 P.M. the deceased had left for his house. On 8.8.2016 at about 8.00 A.M., the appellant Virender Kumar left the house of the complainant after taking the torch. Son-in-law and younger son of the complainant also kept on searching for the deceased.

6. On 8.8.2016 at 9.30 A.M., the complainant and his relatives went to the house of the appellant. At about 11.00-11.30 A.M., wife of the complainant while riding on the motorcycle of Suresh Kumar went to the place in Village Jhamoti, where the appellant and deceased had been working as painters and it was told there that on 7.8.2016 at about 5.30 P.M., deceased and the appellant had left therefrom. Thereafter, wife of the complainant and Suresh Kumar along with the appellant went to the house of Jagat Ram in Village Nagrota and there it was told that on 7.8.2016 at 6.30 P.M., deceased and the appellant had left after taking details of work. Information regarding the missing of deceased was given at several places, but to no avail.

7. On 8.8.2016 at about 3.00 P.M., the complainant came to know from police that dead body of his son Ravinder Kumar was found in the water of khud in village Bah and thereafter, the complainant reached on the spot. The complainant had suspicion that his son was thrown in the khud after killing him because as per version of the appellant, he had left deceased near his house at 7.00 P.M. and distance from the house of the complainant was 1 to 1½ kilometers and when the appellant had left the deceased at place Saloa how the dead body of Ravinder Kumar reached in the khud at a distance of 1 to 1½ kilometers in opposite direction, which points out that the deceased was killed either at a place back to village Saloa or in Village Saloa. On Such complaint Ext.PW11/B, FIR Ext.PW15/E came to be registered. Investigation was carried out by ASI Vijay Kumar initially and thereafter, by Inspector Sandeep Sharma, SHO, Police Station, Jawalamukhi and the spot of incident was inspected. Site plan Ext.PW18/A was prepared. Photographs of the spot were clicked.

8. After completion of the investigation, charge for the offence punishable under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed to be tried.

9. The prosecution examined 18 witnesses in support of its case. The statement of accused under Section 313 Cr.P.C was recorded, in which, he denied the case of the prosecution and his defence plea was that of denial simplictor and false implication by Kishan Parmar who had threatened him to teach him a lesson in future due to the reason that Kishan Parmar had been nurturing grudge against him as he had worked with the mother of Kishan Parmar against his wish.

10. The learned trial Court below has convicted the appellant mainly on the ground that he was last seen together with the deceased and there was positive evidence to this effect in the testimonies of PW-3 Joginder Pal, PW-7 Kishori Lal and PW-11 Duni Chand and the motive for the same was that the deceased was having an affair with the sister of the appellant.

11. Evidently, it is a case of circumstantial evidence. The law governing cases involving circumstantial evidence is no longer res-integra. Para 153 of the decision of the Hon’ble Apex Court in case titled as Sharad Viridhi Chandra Sharda vs. State of Maharashtra, 1984 (4) SCC 116 lays down the well settled principles, which read thus:-

“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 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 evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.”

12. Now, as regards the circumstance of ‘last seen together, obviously, there is no dispute about this fact and it otherwise stands duly proved in the testimonies of the aforesaid witnesses. But what has been ignored by the Court below is that it was not a solitary occasion when the deceased was seen in the company of the appellant, rather it has specifically come in the statement of complainant PW-11 Duni Chand that his son had been working with the appellant for the past one year, since his unfortunate demise and, therefore, there was nothing unusual of the deceased being in the company of the appellant before going missing.

13. Somewhat similar question came up for consideration before the Hon’ble Apex Court in Arun Shankar vs. The State of Madhya Pradesh 2024(5) Scale. There the deceased and the appellant always used to be together and that was not the first occasion when the deceased and the appellant went together to consume liquor. Apart from being closely related, they had a close contact, and they used to be together for drinking. The prosecution therein, like the instant case, had not come out with a case that there was some motive on the part of the appellant for killing the deceased and it was not unusual for the deceased to be in the company of the appellant, which makes the case based on the theory of “last seen together” very weak in absence of motive. It shall be apt to reproduce paras 6 and 7 of the judgment, which read thus:-

“6) We have carefully perused the evidence of PW-2, who deposed that on 29th September 1993 till 9.00 pm, the appellant and deceased consumed liquor in his house. He deposed that the appellant and deceased left his house after consuming liquor. He stated that the appellant and the deceased had gone towards Amgoan. The body of the deceased was recovered on the next day. In the crossexamination, the PW-2 stated that two to four times, the appellant and the deceased had come to his place to drink liquor. He stated that the deceased used to consume a lot of liquor. PW-6 (Smt. Anjana Devi) is the wife of the deceased, who deposed that the appellant came to her house and gave a currency note of Rs. 50/- to the deceased and forcibly took him for drinking. After that, the deceased did not come back. She stated that she deputed her elder son to the appellant's house, where the sister-in-law of the appellant informed the elder son of the deceased that the appellant was sleeping in the house. Thereafter, the appellant himself visited the house of PW-6 and enquired whether his brother-in-law (deceased) had come back. She deposed that at 12.00 noon, one Kotewar informed her that the dead body of her husband had been found. She admitted that her husband used to drink alcohol occasionally. Sometimes, he used to get drunk, and people used to bring him back home. She stated that when her husband went with the appellant, she knew that they were going to drink liquor.

7) PW-7 stated that the deceased was his nephew. In the cross-examination, he accepted that the deceased and appellant always used to be together. Thus, this was not the first occasion when the deceased and the appellant went together to consume liquor. Apart from being closely related, they had a close contact, and they used to be together for drinking. The prosecution has not come out with a case that there was some motive on the part of the appellant for killing the deceased. Neither PW-2 nor PW-6 stated that on 29th September 1993, there was any dispute or altercation between the appellant and the deceased. Thus, the deceased being in company of the appellant on 29th September 1993 was not an unusual circumstance. This makes the case based on the theory of last seen together very weak in absence of motive.”

14. Adverting to the so called motive, it needs to be noticed that the learned trial Court has observed that PW-12, brother of deceased had disclosed that he was having an affair with the sister of appellant namely Shashi and PW-18 Inspector Sandeep Sharma had also stated in his cross-examination that brother of deceased Ravinder Kumar had disclosed to him that his brother had told him that he was having relations with the sister of the appellant. However, what has not been stated by any of the witnesses is that even though, the deceased was having an affair with the sister of the appellant, but the appellant had not approved the same. Rather, it has specifically come in the statement of the appellant recorded under Section 313 Cr.P.C that would his sister having any affair with the deceased, he would have never objected to the same as his other sisters are married to persons of different castes. It shall be apt to reproduce question No.19 and reply thereto, which reads as under:-

Q19. It has further come in the prosecution evidence led against you that deceased was having an affair with your sister Shashi with which you were annoyed as such you intend to kill Ravinder Kumar. What you have to say about it.

Ans. It is incorrect. My sister was not having any affair with Ravinder Kumar. Had it been so, I would have never minded it since other sisters of mine are married to persons of different castes.”

15. Apart-from the above, it needs to be noticed that the testimony of PW-18 has been totally mis-construed by the learned Court below. As a matter of fact, this witness has clearly stated that he had verified the fact that the deceased was having relations with Shashi (sister of the appellant), but she refused for having any such relation. It was then that we had to fall back on the statement of the brother of the deceased. It shall be apt to reproduce the relevant portion of the statement of PW-18, which reads as under:-

“……It is incorrect that I pressurized the accused to give a statement that deceased was having relations with his sister. I verified the fact of deceased having relations with Shashi (sister of the accused), but she refused for having of any such relations. In this regard, only one witness ice brother of the deceased has been associated by me who had said that deceased had disclosed to him that he was having relations with the sister of accused. There is nothing in the entire cell phone of deceased showing that deceased had ever had any chat with the sister of the accused…...”

16. All these facts cumulatively make the case based on theory of ‘last seen together’ very weak in absence of the motive.

17. Apart from the above, it also needs to be noticed that it is not the case of the prosecution that the appellant belonged to a different village and their common passage was only upto village Saloh after which they had to part ways to reach their respective homes. The learned Additional Sessions Judge for some strange reasons had invoked the provisions of Section 106 of the Evidence Act to render the finding that version put forth by the appellant that he had left the deceased at village Saloh, was not correct. The provisions of Section 106 of the Evidence Act are not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. The mere fact that the body of the deceased had been found at a distance of 2 kilometers in the opposite direction of Saloh, could not be a sufficient ground to disbelieve the version put-forth by the appellant that he had dropped the deceased at village Saloh.

18. There is yet another perversity in the findings of learned trial Court when it observes that the appellant on the next day i.e. 08.08.2016 had visited the house of deceased and took his torch only and did not ask about his son Ravinder Kumar, completely being unmindful of the fact that it was the specific case of the prosecution that on 08.08.2016 at about 7.00 a.m., the appellant had visited the father of the deceased Duni Chand (PW-11) for collecting the torch, who in turn, had asked the appellant about the whereabouts of his son and the appellant had replied that he might have visited his relative and would return. It shall be apt to reproduce question No.7 and answer thereto, which is reproduced as under:-

Q7. It has further come in the prosecution evidence led against you that on the next morning i.e. 8.8.2016 at around 7 A. M. you visited Duni Chand (PW11) for your torch and when he (Duni Chand) asked for his son you replied that he might have visited his relative and will return. What you have to say about it?

Ans: It is correct.

19. Lastly and more importantly, the learned trial Court has observed that the conduct of the appellant after missing and disappearance of the deceased was suspicious. We really fail to understand as to how the learned trial Court could have expected the appellant to toe the line of the prosecution. The mere fact that the dead body of the deceased was found two kilometers back from place Saloh where the appellant had left him, could not be a ground to doubt the statement. It was for the prosecution to establish on record by leading clear, cogent and convincing evidence that it was the appellant who had committed the murder of the deceased, given the fact that it is village Saloh where the deceased and the appellant would have to part ways to enable them to reach their respective houses. This version assumes importance because it was the appellant who on the asking of the complainant and his wife had come at night time to find the whereabouts of deceased, like any other day had reported to work on 08.08.2016 as has been duly acknowledged by PW-7 Kishori Lal where the deceased and the appellant were working together for the past two days.

20. The learned Court below has completely over-looked and mis-appreciated all the aforesaid material and serious contradictions and infirmities in the investigation wherein it has failed to prove all the infirmities in the prosecution case little realizing that the accused person cannot be convicted on pure moral conviction. False explanation cannot be used as an additional link to fortify the prosecution case. Suspicion, howsoever strong, it may be, cannot take the place of proof. A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law. The cardinal principle of criminal jurisprudence in a case can be stated to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.

21. In this regard, it shall be apt to refer to the judgment of the Hon’ble Supreme Court in Rahul vs. State of Delhi, Ministry of Home Affairs and another (2023) 1 SCC 83 wherein it has been observed as under:

“42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.”

22. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of the Hon’ble Supreme Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. The Hon’ble Supreme Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has further been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by the Hon’ble Supreme Court that there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions.

23. As observed above, it is no more res-intergra that if the prosecution case rests 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 evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. We find from the record that the findings recorded by the learned trial Court are perverse and do not in any manner re-concile with the evidence on record.

24. In view of the aforesaid discussion and for the reasons stated above, we find merit in the appeal and the same is accordingly allowed. Consequently, the judgment passed by the learned trial Court is set aside. Accordingly, the appellant is honorably acquitted of the offence charged. He be released forthwith, if not wanted in any other case. Registry is directed to prepare the release warrants.

25. The appeal is disposed of in the aforesaid terms, so also the pending applications, if any.

Appeal allowed.

********